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Could North Carolina Finally Adopt Federal Standing Requirements?

It has long been harder for a plaintiff to show standing in federal court than in North Carolina’s state courts. A juicy 2-1 decision from the North Carolina Court of Appeals—yielding an automatic right of appeal to our Supreme Court—could finally change that. See Comm. to Elect Dan Forest v. Emps. Political Action Comm. (EMPAC).

Federal Courts Take a Stand

Throughout the latter part of the twentieth century, the U.S. Supreme Court developed a theory of constitutional standing that has only expanded in recent years. The theory arises from the U.S. Constitution itself, which empowers the federal courts to consider only “cases” and “controversies,” whatever that means.  U.S. Const. art. III, § 1.

The famous Scalia opinion in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), is often cited for a summary of modern federal standing doctrine:

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. at 560-61 (cleaned up).

In short, a plaintiff has to have a real injury that was caused by the defendant and that can be remedied by the courts. In other words, if the court can’t fix a harm that the defendant caused the plaintiff, why should the court get involved in the first place?

North Carolina Courts Take a Stand Too, Sometimes

The North Carolina Constitution is even more explicit than the U.S. Constitution. The state constitution declares that our state courts are open to provide a remedy to “every person for an injury done him [or her] in his [or her] lands, goods, person, or reputation.”  N.C. Const. art. I, § 18.  What kind of injury suffices under this provision?  Must it be caused by the defendant?  Must the injury be remediable in order to justify opening the courts to the injured?

Of course, the federal standard—arising as it does from the U.S. Constitution—does not necessarily govern in North Carolina’s state courts. Yet, from time to time, the North Carolina Court of Appeals has quoted cases like Lujan to describe the North Carolina standard. See, e.g., Teague v. Bayer AG, 195 N.C. App. 18, 22, 671 S.E.2d 550, 554 (2009).  Because one panel of the Court of Appeals is bound by the decisions of prior panels, there is a strong argument to be made that the federal standard has been adopted as the state standard—at least for cases pending in the trial courts and in the Court of Appeals.

The Supreme Court of North Carolina, however, has never quite embraced the federal standard.  To be sure, our Supreme Court has, at times, incorporated and relied on various federal standing doctrines in deciding who has access to our courts. See, e.g., Hart v. State, 368 N.C. 122, 140, 774 S.E.2d 281, 293–94 (2015) (concluding plaintiffs suffered no “injury in fact” and lacked standing to assert a discrimination claim on behalf of students); Empire Power Co. v. N.C. Dep’t of E.H.N.R., 337 N.C. 569, 590, 447 S.E.2d 768, 780–81 (1994) (requiring plaintiff to show “injury in fact” in order to challenge granting of an air-pollution-control permit to power company); Dunn v. Pate, 334 N.C. 115, 119, 431 S.E.2d 178, 181 (1993) (requiring defendants to show “injury in fact” in order to challenge statute); River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 129, 388 S.E.2d 538, 555 (1990) (applying federal cases to determine when an association has standing to sue on behalf of its members); Stanley v. Dep’t of Conservation & Dev., 284 N.C. 15, 28, 199 S.E.2d 641, 650 (1973) (applying federal cases to determine when taxpayers have standing to challenge the constitutionality of a tax).

But the Supreme Court of North Carolina has never explicitly adopted any particular federal standing standard.

What Would it Mean For North Carolina to Adopt Federal Standing Requirements?

The distinction between federal and state standing requirements matters. The U.S. Supreme Court has been ever more clear in recent years that the standing hurdle is formidable.  Fear of likely future injury?  Not sufficient to confer federal standing, under Clapper v. Amnesty International.  Statutory injury without corresponding real harm?  Not sufficient, under Spokeo, Inc. v. Robins.

It is this latter Spokeo decision, and its focus on the kinds of harms that can be elevated to injury-in-fact status by statute, that underpins the dispute among three North Carolina Court of Appeals judges today in EMPAC.  The EMPAC case arose from a political ad aired in favor of a candidate who ultimately lost an election.  The winning candidate sued for violations of a state statute that required political ads by PACs to comply with certain technical requirements.

Super-technical, one might say. Under the statute, each ad must show a full screen shot of the CEO or treasurer of the PAC identifying the ad’s sponsor.  In EMPAC, the ad at issue allegedly showed a partial screen shot of the CEO of EMPAC’s affiliate entity identifying the ad’s sponsor.

The winning candidate sought statutory damages, without trying to show that he suffered actual damages (or actual harm, for that matter). In other words, the case involved a purely statutory injury without corresponding real harm.

That’s exactly the kind of case that federal courts across the country have been throwing out after Spokeo.

It would be hard to overstate the impact of Spokeo.  Many hundreds of federal cases have been dismissed under its logic.***  If federal standing requirements, as interpreted in Spokeo, apply in North Carolina courts, cases like EMPAC may not make it past Rule 12 motions.

EMPAC Could Be North Carolina’s Chance to Embrace Federal Standing Requirements 

Here’s how the EMPAC judges came down:

EMPAC majority:  The General Assembly can open the gates to the courthouse by declaring a certain type of injury to be remediable by private lawsuit.

EMPAC dissent:  The General Assembly can open the gates to the courthouse for injuries that do not otherwise support common law actions, but only if the injury creates a real harm for the plaintiff.

Assuming EMPAC appeals, the Supreme Court of North Carolina will have an opportunity to explicitly embrace or reject federal standing principles, with the potential for widespread effects on the ability of future unharmed plaintiffs to use our state courts to vindicate their statutory rights.

–Matt Leerberg

*** I should note that my colleague Kip Nelson has analyzed every federal decision applying Spokeo.  I doubt anyone in the country knows more about the Spokeo line of cases than Kip.

 

 

 

 

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2 Responses to "Could North Carolina Finally Adopt Federal Standing Requirements?"

  • Daniel F. E. Smith
    June 19, 2018 - 3:29 pm Reply

    I do not think North Carolina will become as restrictive as the federal courts, given the open courts provision of Article I, section 18 of the North Carolina Constitution. Different constitutional text means different requirements for standing. See, e.g., Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 642, 669 S.E.2d 279, 281-82 (2008); Bland v. Wilmington, 278 N.C 657, 659, 180 S.E.2d 813, 815 (1971); Piedmont Canteen Serv., Inc. v. Johnson, 256 N.C. 155, 166, 123 S.E.2d 582, 589 (1962); Ferrell v. Department of Transportation, 104 N.C. App. 42, 45, 407 S.E.2d 601, 603-04 (1991).

  • mark finkelstein
    June 19, 2018 - 3:44 pm Reply

    While the North Carolina Supreme Court could adopt federal concepts of standing, I think it should not. I marvel at our General Court of Justice and our open courts under Article 1, Section 18 of our North Carolina Constitution. We are blessed with three branches of government that check and balance each other to avoid extremism and foster progress. In many ways, the Judiciary is the weakest branch and does not need to be further weakened by further limiting the scope of its jurisdiction.

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