Also known as: public right · public-right doctrine
Written by attorneys — see sources below.
2 senses
A right held in common by members of the general public. An interference with the right is unreasonable when the conduct involves a significant impact on public health, safety, peace, comfort or convenience, violates a statute or regulation, or produces a continuing or permanent effect that the actor knows or has reason to know will significantly affect the right.
A dispute arising between a private party and the government in its sovereign capacity under a valid statute creating enforceable rights. Such disputes may be assigned by Congress to non-Article III tribunals for adjudication.
Each sense below has its own examples, sources, and questions.
A right held in common by members of the general public. An interference with the right is unreasonable when the conduct involves a significant impact on public health, safety, peace, comfort or convenience, violates a statute or regulation, or produces a continuing or permanent effect that the actor knows or has reason to know will significantly affect the right.
The Hog Farm Partnership sprays liquid manure on fields near a public lake and parks, violating a state agricultural regulation. Strong odors and flies reach a highway rest area, campground, school grounds, and town parks, causing nausea and canceling community events. The partnership knows from prior complaints that the recurring invasions significantly affect public comfort and convenience.
The Hog Farm Partnership allows manure lagoons to overflow after heavy rains multiple times each year. The resulting odors and flies persist for days on each occasion and reach public parks and a lakeside campground. The partnership has received prior complaints and therefore knows the continuing invasions produce a long-lasting effect on public comfort.
MetroFiber's foreman Lewis deliberately leads a crew across public parkland and a posted lakeshore to install fiber line. The crew acts knowing the entry will occur at that location even though an outdated map showed an easement that had terminated. The purposeful crossing interferes with the public's right to use and enjoy the land without significant disruption.
2 common questions
An interference is unreasonable when the conduct produces a significant effect on public health, safety, peace, comfort or convenience, violates a statute or regulation, or is continuing or permanent and the actor knows or has reason to know it will significantly affect the public right.
Supporting sources
A dispute arising between a private party and the government in its sovereign capacity under a valid statute creating enforceable rights. Such disputes may be assigned by Congress to non-Article III tribunals for adjudication.
Omar, a banking lawyer, accepts an assignment through a bar association program to represent Roy, a minimum-wage worker facing eviction from a building foreclosed by Omar's longtime client. Omar files answers and negotiates stays without charging Roy any fee. The representation protects Roy's housing rights where payment of standard fees would be inappropriate given Roy's limited resources.
Taxpayers file suit alleging that federal expenditures for religious schools violate the Establishment Clause. They sue as private attorneys general to vindicate interests shared by the public at large rather than to protect any personal or proprietary right of their own. The suit seeks to enforce a public right created by the Constitution.
Congress enacted the Elementary and Secondary Education Act of 1965. That statute authorized federal grants under Titles I and II to state and local educational agencies. Seven individuals who paid federal income taxes filed a complaint in the United States District Court for the Southern District of New York. They sued the Secretary of Health, Education, and Welfare and the Commissioner of Education in their official capacities. The complaint alleged that federal funds appropriated under the Act were being disbursed with the consent and approval of the defendants. Those funds were being used to finance instruction in reading, arithmetic, and other subjects in religious schools and to purchase textbooks and instructional materials for use in such schools. The complaint attacked the specific criterion of 20 U.S.C. § 241e(a)(2) that to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements in which such children can participate. The plaintiffs alleged that these expenditures constituted compulsory taxation for religious purposes in violation of the Establishment and Free Exercise Clauses of the First Amendment. They requested a declaratory judgment that the expenditures were unauthorized or alternatively that the Act was unconstitutional to that extent together with an injunction restraining approval of further expenditures for the challenged purposes. The defendants moved to dismiss the complaint on the ground that the plaintiffs lacked standing. A three-judge district court granted the motion and dismissed the complaint. The plaintiffs appealed directly to the Supreme Court pursuant to 28 U.S.C. § 1253 and the Court noted probable jurisdiction.
2 common questions
A public right arises in a dispute between a private party and the government acting in its sovereign capacity under a valid statute. A private right involves disputes between private parties that traditionally were resolved in Article III courts and therefore generally require adjudication by judges with life tenure and salary protection.
Supporting sources
Yes. Model Rule 6.1(b)(1) expressly permits a lawyer to count hours spent delivering legal services without fee or at a substantially reduced fee to individuals or organizations seeking to secure or protect public rights when payment of standard fees would significantly deplete the organization's resources or would otherwise be inappropriate.
…such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State." This Court has not hesitated to enforce the principle of separation of…
…issue that "no part of this opinion is intended to foreclose the public's opportunity to adjudicate the possibility that public rights
…321 U. S. 288, 309-310 (1944) (footnote omitted). "Individual rights," within the meaning of this passage, do not mean public rights
…and nontaxpayers alike. These are and must be, to adopt Professor Jaffe's useful phrase, "public actions" brought to vindicate public rights. It does not, however, follow that suits brought by non-Hohfeldian plaintiffs are excluded by the "case or controversy" clause of Article III of the Constitution from the jurisdiction of…
…degree of intrusion is reasonable, but whether First Amendment principles require that the right of privacy give way to the public right
An interference is unreasonable when the conduct produces a significant effect on public health, safety, peace, comfort or convenience, violates a statute or regulation, or is continuing or permanent and the actor knows or has reason to know it will significantly affect the public right.
Supporting sources
An environmental organization sues to enforce statutory protections for endangered species abroad. The members allege only a generalized interest in wildlife preservation shared by the public rather than any concrete, particularized injury to themselves. The claim therefore seeks to vindicate a public right rather than an individual right.
In 1973 Congress enacted the Endangered Species Act to protect species of animals against threats to their continuing existence caused by man. In 1978 the Fish and Wildlife Service and National Marine Fisheries Service issued a joint regulation interpreting section 7(a)(2) to require federal agencies to consult with the Secretary of the Interior on actions taken in foreign nations. In 1986 the Secretary promulgated a revised regulation that limited the consultation obligation to actions within the United States or on the high seas. Shortly after the 1986 regulation took effect, Defenders of Wildlife and other environmental organizations filed suit in the United States District Court for the District of Minnesota against the Secretary of the Interior. The complaint sought a declaratory judgment that the regulation was invalid as to its geographic scope and an injunction requiring the Secretary to promulgate a new regulation mandating consultation for foreign projects. The complaint alleged that the absence of consultation would increase the rate of extinction of endangered and threatened species. The complaint further alleged that some of the organizations' members observed these species both domestically and abroad. Respondents supported their allegations with affidavits from two members. Joyce Kelly stated that she had traveled to Egypt in 1986, observed the habitat of the endangered Nile crocodile, and intended to return. Kelly further stated that she would suffer harm from the United States role in the rehabilitation of the Aswan High Dam. Amy Skilbred stated that she had traveled to Sri Lanka in 1981, observed the habitat of endangered species including the Asian elephant and leopard at the site of the Mahaweli project funded by the Agency for International Development, and intended to return. Skilbred admitted she had no current plans to return because of a civil war. The District Court dismissed the complaint for lack of standing. The Court of Appeals for the Eighth Circuit reversed. On remand the District Court denied the Secretary's motion for summary judgment on standing. The District Court granted respondents' motion for summary judgment on the merits and enjoined the Secretary from applying the regulation to foreign countries. The Eighth Circuit affirmed. The Supreme Court granted certiorari.
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