Also known as: third party standing · third-party-standing · jus tertii
Written by attorneys — see sources below.
A prudential exception to the general rule against asserting the rights of others that permits a litigant to raise constitutional claims on behalf of third parties when the litigant has a close relationship with those parties and the third parties face practical obstacles to asserting their own rights.
Lake Clinical, a nurses' association, sued River Bio to block a rule requiring public posting of names of nurses who criticize staffing levels. The nurses fear demotions or shift changes if identified. Lake Clinical asserts the members' First Amendment rights because forcing individual suits would trigger the very disclosure that chills association.
During jury selection in a criminal trial, the prosecutor used peremptory challenges to remove jurors of a particular race. The defendant, who did not share that race, objected on equal protection grounds. The court permitted the defendant to assert the excluded jurors' rights because those jurors face practical barriers to vindicating their own claims.
Larry Joe Powers, a white man, was indicted in Franklin County, Ohio, on two counts of aggravated murder and one count of attempted aggravated murder, each with a firearm specification. Powers pleaded not guilty and invoked his right to a jury trial. In the jury selection process, Powers objected when the prosecutor exercised his first peremptory challenge to remove a black venireperson and requested that the trial court compel the prosecutor to explain the reasons on the record. The trial court denied the request and excused the juror. The State proceeded to use nine more peremptory challenges, six of which removed black venirepersons from the jury. Each time the prosecution challenged a black prospective juror, Powers renewed his objections, citing Batson v. Kentucky, but the trial court overruled them. The record does not indicate that race was implicated in the crime or the trial. The empaneled jury convicted Powers on counts of murder, aggravated murder, and attempted aggravated murder, each with the firearm specifications, and the trial court sentenced him to a term of imprisonment of 53 years to life. Powers appealed his conviction to the Ohio Court of Appeals, contending that the prosecutor's discriminatory use of peremptories violated the Sixth Amendment's guarantee of a fair cross section in his petit jury, the Fourteenth Amendment's Equal Protection Clause, and Article I, §§ 10 and 16, of the Ohio Constitution. The Court of Appeals affirmed the conviction, and the Supreme Court of Ohio dismissed Powers' appeal on the ground that it presented no substantial constitutional question. Petitioner sought review before the Supreme Court, renewing his Sixth Amendment and Fourteenth Amendment claims. While the petition for certiorari was pending, the Court decided Holland v. Illinois. After that decision, the Supreme Court granted certiorari limited to the question whether, based on the Equal Protection Clause, a white defendant may object to the prosecution's peremptory challenges of black venirepersons.
View caseA coalition of residents sued the city over an ordinance allowing police to disperse suspected gang members from public places. The plaintiffs were not themselves subject to dispersal orders but asserted the rights of individuals who would be chilled from public assembly. The court allowed the claim because the affected individuals faced obstacles to bringing suit themselves.
In 1992 the Chicago City Council enacted the Gang Congregation Ordinance after hearings revealing that gang members intimidated residents by loitering in public places. The ordinance made it unlawful for any person to loiter in a public place with one or more persons knowing that at least one of those persons was a criminal street gang member. The ordinance defined loitering as remaining in any one place with no apparent purpose. It required a police officer who reasonably believed a person to be a gang member loitering with others to order the entire group to disperse, and failure to obey the order was punishable by a fine of up to $500, imprisonment for not more than six months, or up to 120 hours of community service. Two months after enactment the Chicago Police Department issued General Order 92-4 to provide guidelines to govern its enforcement. The order confined arrest authority to members of the Gang Crime Section and other designated officers, established criteria for identifying street gangs and membership, and directed district commanders to designate enforcement areas where gang presence had a demonstrable effect on law-abiding persons. Those designated areas were not released to the public. During the three years the ordinance was enforced, officers issued more than 89,000 dispersal orders and arrested more than 42,000 people. Respondent Jesus Morales and other individuals were charged with violating the ordinance. Trial courts divided on its constitutionality, with some judges upholding it while eleven others ruled it invalid. The Illinois Appellate Court consolidated the cases, affirmed the invalidations, and reversed convictions in the remaining matters. The Illinois Supreme Court affirmed, and the United States Supreme Court granted certiorari.
A contraceptive distributor challenged a state law restricting sales to unmarried persons. The distributor had no direct constitutional injury but raised the privacy rights of potential customers. The court permitted the claim because the distributor maintained a professional relationship with the third parties who could not easily litigate on their own.
On April 6, 1967, William R. Baird delivered a lecture on birth control at Boston University. As part of the presentation, he showed a film, displayed contraceptive devices in their original packages, and at the conclusion invited members of the audience to take contraceptive articles from the stage. A young woman requested and received a package of Emko vaginal foam from Baird, after which he was arrested and charged with exhibiting and giving away a contraceptive device in violation of Massachusetts General Laws, c. 272, § 21. Baird was convicted following a bench trial in the Massachusetts Superior Court. The Supreme Judicial Court of Massachusetts set aside the conviction for exhibiting the contraceptives on First Amendment grounds but upheld the conviction for giving away the foam by a four-to-three vote. Baird then filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts, which dismissed the petition. The Court of Appeals for the First Circuit vacated the dismissal and remanded with directions to grant the writ discharging Baird. The Supreme Court noted probable jurisdiction and heard the appeal brought by the Sheriff of Suffolk County, Massachusetts. The Massachusetts statute, as interpreted by the state courts, makes it a felony for anyone other than a registered physician or pharmacist to dispense contraceptives intended for the prevention of pregnancy, with distribution authorized only to married persons upon prescription.
A lead plaintiff in a class action over royalty underpayments sought to bind absent class members to the judgment. The defendant argued the representative could not assert the absent members' due process rights. The court allowed the representative to proceed because the absent members faced practical barriers to individual litigation.
Phillips Petroleum Company, a Delaware corporation with its principal place of business in Oklahoma, produced or purchased natural gas from leased land in 11 states during the 1970s. It sold most of the gas in interstate commerce at prices regulated by the Federal Power Commission, later the Federal Energy Regulatory Commission. Beginning in the mid-1970s Phillips proposed price increases. It collected higher amounts subject to refund with interest if disapproved. Phillips suspended royalty payments to lessors until final Commission approval. It paid the suspended royalties of $3.7 million in 1976, $4.7 million in 1977, and $2.9 million in 1978 without interest after the increases were approved. In 1979 the Commission began investigating overcharges. In 1983 it issued an opinion ordering refunds. Royalty owners Irl Shutts, a Kansas resident, and Robert and Betty Anderson, Oklahoma residents owning leases in Oklahoma and Texas, filed suit in Kansas state court seeking interest on the suspended royalties. They sought to represent a class of 33,000 royalty owners later reduced to 28,100 members after 3,400 opted out and 1,500 could not be notified. Fewer than 1,000 class members resided in Kansas and only about one-quarter of one percent of the leases were located there. The Kansas trial court certified the class under a state statute modeled on Federal Rule of Civil Procedure 23 on an opt-out basis. It sent first-class mail notice describing the action and the right to opt out. The court applied Kansas law to award interest at Commission rates followed by the Kansas post-judgment rate of 15 percent. After the Kansas Supreme Court affirmed, the United States Supreme Court granted certiorari in 1984.
An organization dedicated to church-state separation challenged a federal land transfer to a religious college. The group alleged injury to its members' taxpayer interests but identified no member who had suffered concrete harm. The court denied standing because the organization could not show that its members faced obstacles preventing them from suing individually.
In 1942 the Department of the Army acquired approximately 181 acres northwest of Philadelphia and constructed the Valley Forge General Hospital on the site. The hospital provided medical care to members of the Armed Forces for the next thirty years. In April 1973 the Secretary of Defense proposed closing the installation as part of a plan to reduce the number of military facilities in the United States, after which the General Services Administration declared the property surplus. In August 1976 the Department of Health, Education, and Welfare conveyed a 77-acre tract of the former hospital grounds to petitioner Valley Forge Christian College. The appraised value of the tract at the time of transfer was $577,500, but the Secretary applied a 100 percent public benefit allowance that allowed the college to take title without any cash payment. The deed conveyed the land in fee simple subject to conditions subsequent that required the college to use the property for thirty years solely for the educational purposes described in its application. Valley Forge Christian College is a nonprofit educational institution operating under the supervision of the Assemblies of God. Its stated purpose is to offer systematic collegiate training to men and women for Christian service as ministers or laymen, and its degree programs are designed to train leaders for church-related ministries. Faculty members must have been baptized in the Holy Spirit and be living consistent Christian lives, and all members of the college administration must be affiliated with the Assemblies of God. In September 1976 respondents Americans United for Separation of Church and State, Inc., a nonprofit organization with approximately 90,000 taxpayer members, and four of its employees learned of the conveyance through a news release. Two months later they filed suit in the United States District Court for the District of Columbia, later transferred to the Eastern District of Pennsylvania, seeking a declaration that the conveyance was null and void and an order requiring the college to return the property to the United States. The District Court granted summary judgment and dismissed the complaint, finding that respondents lacked standing as taxpayers and had failed to allege any actual or concrete injury beyond a generalized grievance common to all taxpayers. The Court of Appeals for the Third Circuit reversed by a divided vote. It held that respondents possessed standing as citizens claiming injury in fact to their shared individuated right to a government that shall make no law respecting the establishment of religion. The Supreme Court granted certiorari in 1981.
An organization may assert third-party standing when its members face practical obstacles to suing individually, such as when disclosure of their identities would itself chill the rights at issue. The organization must also have a close relationship with the members and the claim must be germane to its purpose. Courts examine whether the obstacle is genuine rather than speculative.
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…between one who acted to protect the rights of a minority and the minority itself. Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L. J. 599, 631 (1962). And so here the relationship between Baird and those whose rights he seeks to assert is not simply that between a distributor and…
…none have done so. See Singleton, supra , at 113-114. Respondents may be correct that petitioner does not possess standing jus tertii
…contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon
…the relation between petitioner and the excluded jurors is as close as, if not closer than, those we have recognized to convey third-party standing in our prior cases. See, e. g., Griswold v. Connecticut, supra (Planned Parenthood official and a licensed physician can raise the constitutional rights of contraceptive users with whom…
…532-535 (1997) (legislation under § 5 of the Fourteenth Amendment). See generally Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1351 (2000) (emphasizing role of various doctrinal tests in determining viability of facial attack); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that…
An anti-retaliation policy may weigh against standing if it shows that members can safely assert their rights individually. Courts look to concrete evidence of past discipline or the absence of such evidence. When members have already criticized policies publicly without reprisal, the claimed obstacle may be viewed as speculative.
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A criminal defendant may assert the equal protection rights of excluded jurors even without sharing their race. The relationship between defendant and jurors is sufficiently close, and excluded jurors face practical barriers such as small financial stakes and the burden of litigation. This exception allows the defendant to raise the claim.
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When the challenged rule itself requires disclosure of identities, that disclosure can create the precise practical obstacle justifying organizational standing. Members may reasonably fear retaliation, loss of income, or other harms that deter individual suits. Courts permit the organization to proceed when filing individually would replicate the constitutional injury.
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