Standing (law)
Encyclopedia
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.
created the first international court before which individuals have automatic locus standi.
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.
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.
developed the concept of public interest standing in three constitutional cases commonly called "the Standing trilogy": Thorson v. Canada (Attorney General), Nova Scotia Board of Censors v. McNeil
, and Minister of Justice v. Borowski
. The trilogy was summarized as follows in Canadian Council of Churches v. Canada (Minister of Employment and Immigration)
:
Public-interest standing is also available in non-constitutional cases, as the Court found in Finlay v. Canada (Minister of Finance).
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. Federal courts may exercise power only "in the last resort, and as a necessity".
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. Since then the doctrine has been embedded in judicial rules
and some statutes.
The doctrine on standing has recently been modified by the unanimous opinion in Bond v. United States in which it was held an individual has standing to challenge the constitutionality of a federal statute under the Tenth Amendment
.
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. 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. "The injury alleged was not fairly traceable to the Government conduct respondents challenge as unlawful".
In another major standing case, the Supreme Court elaborated on the redressability requirement for standing. 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. 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. 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". 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. 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), 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.
, 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. 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
, 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.
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.
, and held that jus tertii in state law is not the same thing as the federal standing doctrine.
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
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
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
of a law unless the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
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.
International Courts
The Council of EuropeCouncil of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
created the first international court before which individuals have automatic locus standi.
Canada
In CanadianCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
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.
Frequently a litigant wishes to bring a civil action for a declaratory judgment
Declaratory judgment
A declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...
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.
Public interest standing
The Supreme Court of CanadaSupreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
developed the concept of public interest standing in three constitutional cases commonly called "the Standing trilogy": Thorson v. Canada (Attorney General), Nova Scotia Board of Censors v. McNeil
Nova Scotia Board of Censors v. McNeil
Nova Scotia v. McNeil, [1978] 2 S.C.R. 662 is a famous pre-Charter decision from the Supreme Court of Canada on freedom of expression and the criminal law power under the Constitution Act, 1867...
, and Minister of Justice v. Borowski
Minister of Justice v. Borowski
Minister of Justice v. Borowski, is a landmark Supreme Court of Canada decision on the standard for allowing public interests to gain standing to challenge a law...
. The trilogy was summarized as follows in Canadian Council of Churches v. Canada (Minister of Employment and Immigration)
Canadian Council of Churches v. Canada (Minister of Employment and Immigration)
Canadian Council of Churches v. Canada , [1992] 1 S.C.R. 236, is a leading Supreme Court of Canada case on the law of standing in Canada...
:
Public-interest standing is also available in non-constitutional cases, as the Court found in Finlay v. Canada (Minister of Finance).
United Kingdom
In British administrative law, the applicant needs to have a sufficient interest in the matter to which the application relates. This sufficient interest requirement has been construed liberally by the courts. As Lord Diplock put it:"[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."
United States
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".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
Case or controversy
The Case or Controversy Clause of Article III of the United States Constitution has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy — that is, an actual dispute between adverse parties which is capable of...
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. Federal courts may exercise power only "in the last resort, and as a necessity".
The American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
doctrine of standing is assumed as having begun with the case of Frothingham v. Mellon
Frothingham v. Mellon
Frothingham v. Mellon and Massachusetts v. Mellon, , were two consolidated cases decided by the Supreme Court of the United States in which the court rejected the concept of taxpayer standing. The plaintiffs in the cases, Frothingham and Massachusetts, sought to prevent certain federal government...
, 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
Nineteenth Amendment to the United States Constitution
The Nineteenth Amendment to the United States Constitution prohibits any United States citizen to be denied the right to vote based on sex. It was ratified on August 18, 1920....
was ratified. Prior to it the doctrine was that all persons had a right to pursue a private prosecution of a public right. Since then the doctrine has been embedded in judicial rules
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
and some statutes.
The doctrine on standing has recently been modified by the unanimous opinion in Bond v. United States in which it was held an individual has standing to challenge the constitutionality of a federal statute under the Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
.
Standing requirements
There are three standing requirements:- Injury: The plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.
- Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.
- Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.
Prudential limitations
Additionally, there are three major prudential (judicially created) standing principles. Congress can override these principles via statute:- Prohibition of Third Party StandingThird party standingThird party standing is a term of the law of civil procedure that describes when one party may file a lawsuit on behalf of another party. In the United States, this is generally prohibited, as a party can only assert his or her own rights and cannot raise the claims of a third party who is not...
: A party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court; exceptions exist where the third party has interchangeable economic interests with the injured party, or a person unprotected by a particular law sues to challenge the oversweeping of the law into the rights of others. For example, a party suing over a law prohibiting certain types of visual material, may sue because the 1st Amendment rights of theirs, and others engaged in similar displays, might be damaged.
Additionally, third parties who don't have standing may be able to sue under the next friendNext friendIn common law, next friend is a phrase used to refer to a person who represents another person who is under disability or otherwise unable to maintain a suit on their own behalf and who does not have a legal guardian....
doctrine if the third party is an infant, mentally handicapped, or not a party to a contract. One example of a statutory exception to the prohibition of third party standing exists in the qui tamQui tamIn common law, a writ of qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed...
provision of the Civil False Claims ActFalse Claims ActThe False Claims Act is an American federal law that imposes liability on persons and companies who defraud governmental programs. The law includes a "qui tam" provision that allows people who are not affiliated with the government to file actions on behalf of the government...
. - Prohibition of Generalized Grievances: A plaintiff cannot sue if the injury is widely shared in an undifferentiated way with many people. For example, the general rule is that there is no federal taxpayer standing, as complaints about the spending of federal funds are too remote from the process of acquiring them. Such grievances are ordinarily more appropriately addressed in the representative branches.
- Zone of Interest Test: There are in fact two tests used by the United States Supreme Court for the Zone of Interest
- Zone of Injury - The injury is the kind of injury that Congress expected might be addressed under the statute.
- Zone of Interests - The party is within the zone of interest protected by the statute or constitutional provision.
Recent development of the doctrine
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.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. 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. "The injury alleged was not fairly traceable to the Government conduct respondents challenge as unlawful".
In another major standing case, the Supreme Court elaborated on the redressability requirement for standing. The case involved a challenge to a rule promulgated by the Secretary of the Interior
United States Secretary of the Interior
The United States Secretary of the Interior is the head of the United States Department of the Interior.The US Department of the Interior should not be confused with the concept of Ministries of the Interior as used in other countries...
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. 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. 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". 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. 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), the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
endorsed the "partial assignment" approach to qui tam
Qui tam
In common law, a writ of qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed...
relator standing to sue under the False Claims Act
False Claims Act
The False Claims Act is an American federal law that imposes liability on persons and companies who defraud governmental programs. The law includes a "qui tam" provision that allows people who are not affiliated with the government to file actions on behalf of the government...
— allowing private individuals to sue on behalf of the U.S. government for injuries suffered solely by the government.
Taxpayer standing
The initial case that established the doctrine of standing, Frothingham v. MellonFrothingham v. Mellon
Frothingham v. Mellon and Massachusetts v. Mellon, , were two consolidated cases decided by the Supreme Court of the United States in which the court rejected the concept of taxpayer standing. The plaintiffs in the cases, Frothingham and Massachusetts, sought to prevent certain federal government...
, was a taxpayer standing case.
Taxpayer standing is the concept that any person who pays taxes should have standing to file a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
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. 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
DaimlerChrysler Corp. v. Cuno
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 was a decision by the Supreme Court of the United States involving the standing of taxpayers to challenge state tax laws in federal court...
, 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
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
. 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
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
, 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
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
, the Supreme Court of Virginia
Supreme Court of Virginia
The Supreme Court of Virginia is the highest court in the Commonwealth of Virginia. It primarily hears appeals from the trial-level city and county Circuit Courts, as well as the criminal law, family law and administrative law cases that go through the Court of Appeals of Virginia. It is one of...
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.
Standing to challenge statutes
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 AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
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
Martin v. Ziherl
Martin v. Ziherl, 607 S.E.2d 367 , was a decision by the Supreme Court of Virginia holding that the Virginia criminal law against fornication was unconstitutional. The court's decision followed the 2003 ruling of the U.S. Supreme Court in Lawrence v...
607 S.E.2d 367 (Va. 2005). Martin and Ziherl were girlfriend
Girlfriend
Girlfriend is a term that can refer to either a female partner in a non-marital romantic relationship or a female non-romantic friend that is closer than other friends....
and boyfriend
Boyfriend
A boyfriend is a person's regular male companion in a romantic or sexual relationship, although normally not in long-term committed relationships, where other titles A boyfriend is a person's regular male companion in a romantic or sexual relationship, although normally not in long-term committed...
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
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
(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
Fornication
Fornication typically refers to consensual sexual intercourse between two people not married to each other. For many people, the term carries a moral or religious association, but the significance of sexual acts to which the term is applied varies between religions, societies and cultures. The...
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
State law on standing differs substantially from federal law and varies considerably from state to state.California
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. 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. The court acknowledged that the word "standing" is often sloppily used to refer to what is really jus tertiiJus tertii
Jus tertii is the legal classification for an argument made by a third party which attempts to justify entitlement to possessory rights based on the showing of legal title in another person...
, and held that jus tertii in state law is not the same thing as the federal standing doctrine.