Actual injury isn’t required for jurisdiction, N.C. Supreme Court rules

North Carolina’s constitution doesn’t require plaintiffs to demonstrate that they’ve suffered any actual injury in order to have standing to bring a lawsuit if the state statute at issue has expressly given them the standing to sue, the North Carolina Supreme Court has unanimously ruled, finding that the jurisdiction of the state’s courts aren’t limited in the same way that federal courts are.

In 2012, Linda Coleman and Dan Forest were the Democratic and Republican nominees, respectively, for Lieutenant Governor. The Employees Political Action Committee, a political action committee for the State Employees Association of North Carolina, ran TV ads supporting Coleman.

Under the state’s “Stand By Your Ad” disclosure statute, which was later repealed, TV and radio ads placed by PACs had to include certain disclosures and “an unobscured, full-screen picture” of either its treasurer or CEO. The statute conferred a private cause of action for candidates who complied with the law against an opposing candidate or PAC whose ads violated it, with a monetary remedy. EMPAC’s ad featured a photograph of a person who was neither its treasurer nor its CEO and was roughly one-eighth the height of the full ad.

After Forest won the election, his PAC sued EMPAC in state court, alleging violations of the Stand By Your Ad statute. EMPAC moved for summary judgment, arguing that Forest’s PAC lacked standing to sue as it had suffered no injury. Wake County Superior Court Judge Allen Baddour granted the motion, but a divided panel of the state’s Court of Appeals reversed, and EMPAC appealed.

Justice Robin Hudson, writing for the Supreme Court in a Feb. 5 opinion, affirmed, ruling that the North Carolina Constitution—as distinct from Article III of the U.S. Constitution, which imposes its own standing requirements on federal courts—doesn’t limit jurisdiction to complaining parties that can demonstrate “injury in fact” where the state legislature has expressly conferred standing to sue on a party.

“The North Carolina Constitution confers standing to sue in our courts on those who suffer the infringement of a legal right, because ‘every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law,’” Hudson wrote. “Thus, when the legislature exercises its power to create a cause of action under a statute, even where a plaintiff has no factual injury and the action is solely in the public interest, the plaintiff has standing to vindicate the legal right so long as he is in the class of persons on whom the statute confers a cause of action.”

Evolution of federal standing

Acknowledging the issue as a matter of first impression, Hudson took a deep dive into the history of standing, going back to English common law and “stranger suits,” where she found the concept of standing “was basically absent” from case law.

Moving across the Atlantic, she found that in the American experience, particularly throughout the nineteenth century, legal actions were “broadly available for the vindication of public rights common to all citizens and taxpayers, without any required showing of a personal interest.”

But federal standing evolved in the middle part of the twentieth century into “an increasingly restrictive tool curbing access to federal courts,” Hudson explained, culminating in a 1992 U.S. Supreme Court decision in Lujan v. Defenders of Wildlife. In that case, “the Court held for the first time that plaintiffs had no standing to bring suit under a congressional statute authorizing suit because they lacked ‘injury in fact.’”

“The very notion of a standing requirement under Article III only arose in the twentieth century,” Hudson wrote. “For most of our nation’s history, federal law permitted standing for private citizens in public actions even in the absence of any particularized injury requirement … that expansion was reversed, first in the context of taxpayer and citizen suits and, later with the adoption of an ‘injury in fact’ requirement, which has been increasingly used to constrain access to federal courts even where a statute creates a right to sue.

“Ultimately the Court adopted a restrictive interpretation of injury-in-fact that applied its substantially tightened requirements for standing to attack the constitutionality of acts of the other branches based on taxpayer or citizen standing beyond that context to rights actually created by Congress.”

State differs from federal standard

Analysis of North Carolina’s constitution yielded a different result, Hudson found.

“The doctrine of standing in federal courts, including the ‘injury-in-fact’ requirement, arises under the case-or-controversy provisions of the United States Constitution, by which exercise of the federal judicial power is limited,” Hudson wrote. “The North Carolina Constitution, by contrast, contains no analogous provision. Rather, in the context of standing, our ‘judicial power’ is limited by principles of self-restraint requiring a ‘direct injury’ when attacking the validity of a statute under the constitution.”

North Carolina courts have long recognized cases where the legislature has created a statutory cause of action, she added.

“When a person alleges the infringement of a legal right directly under a cause of action at common law, a statute, or the North Carolina Constitution, however, the legal injury itself gives rise to standing,” Hudson wrote. “The North Carolina Constitution confers standing to sue in our courts on those who suffer the infringement of a legal right, because ‘every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law.’”

Chief Justice Paul Newby concurred in the result, emphasizing the importance of fair elections and the constitutional authority of the legislature to create a private cause of action even if the common law would not provide the right.

Newly seated Justices Philip Berger Jr. and Tamara Barringer didn’t participate in the consideration or decision of the case.

Steven Walker of the Walker Law Firm in Selma represented Forest’s PAC and said the “comprehensive” decision provided some “much-needed clarity.”

“If lawyers have a question about standing in North Carolina, read this opinion and it will answer your questions—it is that thorough,” Walker said. “This case is going to be cited on standing for hundreds of years in North Carolina. The main takeaway is that standing in North Carolina is not the same as federal standing.”

Raleigh attorney C. Amanda Martin of Stevens Martin Vaughn & Tadych, who represented EMPAC, said in an email statement that she and her clients were “deeply disappointed” in the court’s ruling and “are evaluating all our alternatives.”

The 91-page decision is Committee to Elect Dan Forest v. Employees Political Action Committee (Lawyers Weekly No. 010-001-20). The full text of the opinion is available online at nclawyersweekly.com.