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Notes on the Confederate Memorial Lawsuit: Yes, the Mississippi standing cases are a mess

In a prior posts about standing, I cited a number of Mississippi cases that pretty clearly hold that, while Mississippi has more forgiving rules for standing than the federal cases, there is still a requirement that the plaintiff have a claim of individual injury. In comments, John Pittman Hey pointed to some cases that come very close to saying that just about anyone has standing to assert claims for state actors violating state laws. I’m going to discuss this line of cases below.

For those who don’t want to wade through all of this, here’s my conclusion: This line of cases start with a couple of opinions by Justice McRae, that, at least in the language used, really do take an extremely broad view of standing that would allow virtually anyone to bring suit for violation of the law. The actual facts of the case don’t go quite that far; they involve legislators suing about alleged state law violations mostly involving their interests as legislators. Another important qualification is that there were a couple of later cases where the court did not follow these legislator standing cases, holding there was no standing for certain claims by non-legislators, over dissents by Justice McRae.  The later cases did not attempt to distinguish the legislator-standing cases, just citing and quoting them and then holding a particular party did not have standing in spite of whatever the language in the legislator standing cases might suggest.  No analysis, just a result.

These cases and the more usual ones make the standing law in Mississippi so disparate that I think standing here is a tossup– if the court wants to reach the merits, it can, and if it doesn’t want to, it can go off on standing. The one factor that may tilt them away from a tossup is that the opinions were by Justice McCrae and the Court has pulled away from them in holdings without doing so in an analytical way.

That leaves a trial judge in a spot, with no principled way of resolving this particular issue. It would be great if the Supreme Court faced this inconsistency and resolved it, but perhaps some judges like rules that don’t so much resolve cases as provide rationales for whichever way they wish to go. Personally, my instincts are that this should be resolved leaning toward the conservative result of saying that there is a requirement a plaintiff show that they, personally, had an injury or interest particular to them before they could file suit.  I will explain why if asked.

There is more detail about this than you might want below the fold.

Should I add a category “Where Mississippi caselaw is a mess” for general usage?

The two cases with the broadest standing language were brought by legislators.  In the first case of the pair, Van Slyke v. Bd. of Trustees of State Institutions of Higher Learning, 613 So. 2d 872 (Miss. 1993), a legislator was challenging the makeup of the Institutions of Higher Learning board.  The language holding the legislator had standing is extremely broad:

The federal courts, which adhere to a stringent definition of standing based on the United States Constitution, art. III, § II, limit review to actual “cases and controversies.” Sosna v. Iowa, 419 U.S. 393, 397–403, 95 S.Ct. 553, 556–559, 42 L.Ed.2d 532, 539–543 (1975); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505, 515, n. 10 (1974). The Mississippi Constitution, however, contains no such restrictive language. Therefore, we have been more permissive in granting standing to parties who seek review of governmental actions. Van Slyke I, 510 So.2d at 496. See also, Dye v. State ex rel. Hale, 507 So.2d 332, 338 (Miss.1987) (State Senators had standing to sue Lieutenant Governor on charges that their legislative power had been impinged by his actions; Attorney General did not have exclusive power to bring suit); Canton Farm Equipment, Inc. v. Richardson, 501 So.2d 1098, 1106–1107 (Miss.1987) (unsuccessful bidder for contract with County Board of Supervisors granted taxpayer standing to sue supervisor who did not comply with statutes in awarding bids, even though public not expressly invited to join the suit).

In suggesting that Van Slyke was a proper party to challenge the constitutionality of the composition of the Board of Trustees, it was observed in Van Slyke I that:
The argument persists that citizens should have the authority to challenge the constitutionality and/or review of governmental action, and if individuals do not have such authority, how else may constitutional conflicts be raised. This is particularly true when a public official charged with such a duty fails to act. Constitutional litigation by private citizens may be maintained in cases where there is no probability of the statute being challenged by one of the class discriminated against; or, when a decision on validity would not be necessary, one not within the class may question the validity of the statute. Miller v. Lamar Life Insurance Co., 158 Miss. 753, 131 So. 282 (1930).
Van Slyke I, 510 So.2d at 497 (Prather, J., dissenting).
In the second case, Fordice v. Bryan, 651 So. 2d 998 (Miss. 1995), Governor Fordice argued legislators lacked standing to sue over the constitutionality of partial vetoes. The Court noted that there was no “case and controversy” requirement in the Mississippi Constitution as there is in the United Sates Constitution, which meant our standing rules are more permissive. The court noted it had found standing where a party has “a colorable interest in the subject matter… or [would] experience an adverse effect from the conduct of the defendant.” citing State ex rel. Moore v. Molpus, 578 So.2d 624, 632 (Miss.1991).  The court then went on to evoke the plaintiff’s status as legislators who voted on a bill as providing standing:

…Bryan, Endris and Horhn, as legislators and taxpayers, had standing to bring suit since they asserted a colorable interest in the litigation. Individual legislators had standing to bring the instant action under well established case law. See Van Slyke v. Board of Trustees, 613 So.2d 872, 875 (Miss.1993); Board of Trustees v. Van Slyke, 510 So.2d 490 (Miss.1987); Dye v. Hale, 507 So.2d 332 (Miss.1987); See State ex rel. Moore v. Molpus, 578 So.2d 624 (Miss.1991). Their votes on these bills were adversely affected by the Governor’s vetoes. The Attorney General had standing in his official capacity to intervene in this suit on behalf of the State. See State ex rel. Moore v. Molpus, 578 So.2d at 632.

Fordice, 651 So. 2d at 1003.  I’m not sure there is a holding here other than, “they are legislators, which gives them standing.”

A couple of cases cited in this line also involve legislators and standing.  Dye involved senators challenging the powers of the Lt. Governor in appointing Senate committees; the standing of senators on this point is clear.    State e rel. Moore held that the attorney general had standing to enforce state law, as did legislators.

These cases have been cited a few times outside the context of suits by legislators.  One example involved property owners pursuing interests relating to their property.  In Fordice v. Thomas, 649 So. 2d 835 (Miss. 1995), property owners in Noxubee County had standing to bring suit relating to improprieties in the permitting process for hazardous waste facilities there.  These property owners would have standing under more restrictive standing rules.

Now, on to the more recent cases that seem to limit the legislator standing cases without doing so explicitly.  Justice McRae, who wrote Van Slyke II and Fordice v. Bryan, dissented from both of these cases.  The first, USPCI of Mississippi, Inc. v. State ex rel. McGowan, 688 So. 2d 783 (Miss. 1997), was an outgrowth of the Noxubee County hazardous waste case cited above.  In this round, the Governor was attempting a rule-making end run around the plaintiffs’ efforts to stop the hazardous waste facility.  Justice Smith described the claim, in which the plaintiffs sought mandamus to force the governor to provide them opportunities to be heard:

In short, McGowan charges that as part of the requirement of Miss.Code Ann. § 25–43–17 that an agency provide interested parties with an opportunity to be heard and to review adverse rulings requires a full, public evidentiary hearing to determine the merits of the rule prior to its promulgation. She charges that as a result of the Governor’s failure to do so, both the Final Rule and the CAP which was filed pursuant to the Final Rule are void.

USPCI of Mississippi, Inc., 688 So. 2d at 785.  In “explaining” the holding against the plaintiffs, Justice Smith talked about the governors immunity from suit relating to discretionary decisions and the standing rules in cases like Van Slyke:

The question which remains to be answered, then, is whether McGowan’s private interest is sufficient to maintain this suit. In Fordice v. Thomas, supra, this Court construed the “standing” requirement of the Mississippi Constitution to allow a private citizen to challenge governmental actions contrary to law where the actions would otherwise escape challenge whether the basis of that challenge was constitutional or not. Id. at 841 (construing Van Slyke v. Bd. of Trustees of Institutions of Higher Learning, 613 So.2d 872 (Miss.1993)). The case sub judice now adds to the body of law concerning the propriety of the granting of a writ of mandamus. See State v. Saenger Theatres Corp., 190 Miss. 391, 400, 200 So. 442, 444 (1941)(A citizen, as such, has no right to champion the rights of the public in abating a public nuisance absent statutory authority); Bd. of Supervisors of Prentiss County v. Miss. State Highway Comm’n, 207 Miss. 839, 847–48, 42 So.2d 802, 805 (1949)(Before a writ of mandamus may issue three essentials must coexist: (1) a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel; (3) there must be an absence of another remedy at law); Hancock County v. State Hwy. Comm’n, 188 Miss. 158, 162, 193 So. 808, 810 (1940) (Mandamus may issue for the enforcement of a private right by a person whose private rights entitle him to coerce a mandatory duty). Here, there is no mandatory duty required of the Governor, but rather, a mere discretionary function.

As a result, there is no merit to this issue.

USPCI of Mississippi, Inc., 688 So. 2d 783, 789 (Miss. 1997).  If I am reading this right, the opinion literally answers the standing question by stating that the plaintiffs’ claim fails on the merits.  Not sure what the take-away from that might be, except that the court does not seem committed to the prior cases, and Justice McRae was unhappy about it– “Finally, because of the construction of standing requirements in Fordice v. Thomas and Van Slyke v. Board of Trustees of Higher Learning, 613 So.2d 872 (Miss.1993), the majority incorrectly finds that McGowan does not have standing to seek mandamus in this case.”  USPCI of Mississippi, Inc., 688 So. 2d at 791.  Note that Justice McRae doesn’t exactly pile on with analysis here, either.

In the final case, students, alumni, administrators, and faculty of junior colleges, along with Gulf Coast taxpayers and others sued to stop Southern from offering four-year curriculum at its Gulf Coast campus.   They argued that this was prohibited by statute.  The Supreme Court, again in an opinion by Justice Smith, held they had no standing:

Those directly involved with the junior colleges (students, alumni, administrators, faculty and organizations) argue that they have a property right “in the educational investment of time, money and effort and other resources that he or she has made and a liberty interest in the continued enjoyment of all of the rights, privileges and immunities appertaining thereto.” The Gulf Coast taxpayers believe “that the investment he or she [has made …] is being compromised and damaged by the actions of the IHL Board.” As for the African American Appellees, they contend that the African American community is particularly benefitted by the junior college system in place in Mississippi. Due to this, they argue that the harm suffered by the junior college system because of the actions of the IHL Board will have a distinct negative impact on them.

This Court has previously stated the generally settled rules in regard to standing:

Parties may sue or intervene when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, [citations omitted], or as otherwise authorized by law. [citations omitted].

Harrison County v. City of Gulfport, 557 So.2d 780, 782 (Miss.1990). Standing is like any other charge of a party’s pleading. It is subject to the rule … that we take as true the allegations on the face of the complaint. State ex rel. Moore v. Molpus 578 So.2d 624, 632 (Miss.1991). In Van Slyke v. Board of Trustees of Institutions of Higher Learning this Court found that the Plaintiff had standing to challenge the composition of the IHL Board, and noted that the Supreme Court has “been more permissive in granting standing to parties who seek review of governmental actions.” Van Slyke v. Board of Trustees of Institutions of Higher Learning, 613 So.2d 872, 875 (Miss.1993) (citing Board of Trustees v. Van Slyke, 510 So.2d 490, 496 (Miss.1987) (Prather, J. dissenting)).

The Court further stated that:

The argument persists that citizens should have the authority to challenge the constitutionality and/or review of governmental action, and if individuals do not have such authority, how else may constitutional conflicts be raised. This is particularly true when a public official charged with such a duty fails to act. Constitutional litigation by private citizens may be maintained in cases where there is no probability of the statute being challenged by one of the class discriminated against; or, when a decision on validity would not be necessary, one not within the class may question the validity of the statue. Miller v. Lamar Life Insurance Co., 158 Miss. 753, 131 So. 282 (Miss.1930).

Id. (citing Board of Trustees v. Van Slyke, 510 So.2d at 497 (Prather, J. dissenting)).

Here, a public official has not refused to act; in fact, in this particular case there has been much activity on the part of those political bodies involved. This certainly lessens support for allowing action by uninvolved citizens. Even considering the more liberal stance taken towards finding standing for those challenging governmental actions, we find that the plaintiffs below do not assert a colorable interest in the subject matter of this suit.

Bd. of Trustees of State Institutions of Higher Learning v. Ray, 809 So. 2d 627, 631-32 (Miss. 2002). I’m not sure what to make of this– I think the holding is that, because the public official is doing things instead of refusing to act, uninvolved citizens can’t sue.  I don’t think makes any sense, but it is clear the holding is that these citizens lack standing.  Oddly enough, the opinion then goes on to reject the plaintiffs’ claim on its legal merits, which suggests a limited understanding of what a holding of no standing might mean.

Justice McCrae (this time joined by Justice Diaz) dissented again:

I further part ways with the majority by saying that although SBCJC’s extensive list of individuals participating in the suit amounts to a blatant attempt to circumvent the dictates of § 7–5–1, this is not the issue before us. The issue is whether private citizens can take part in a lawsuit and proceed to question the constitutionality and functions of a public entity. We have been very liberal in this regard and we should continue to do so. Private citizens should not be precluded from asking questions when they feel some law is unconstitutional or some public entity is violating the law. See Smith v. Dorsey, 599 So.2d 529 (Miss.1992); Canton Farm Equip., Inc. v. Richardson, 501 So.2d 1098, 1106–1107 (Miss.1987). It was observed in Van Slyke I that: Citizens should have the authority to challenge the constitutionality of and/or review a governmental action. If individuals do not have such authority, how else may constitutional conflicts be raised? An individual’s motive matters not in determining whether they are allowed to question a public entity’s action. The Mississippi Constitution contains no language restricting review to actual cases and controversies. Therefore, we, as a court, are able to grant standing to parties who seek review of governmental actions. Van Slyke I, 510 So.2d at 496.

Bd. of Trustees of State Institutions of Higher Learning v. Ray, 809 So. at 639.

Outside of this string of cases, as noted in prior posts, the Court seems to follow fairly traditional notions that the plaintiff must show some personal injury distinct from the general public.  Several of those cases are more recent than the two McRae opinions that are the basic subject of this post.

 

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