THE FAD OF LACK OF STANDING

The CLB has observed the apparent increase in popularity of “lack of standing” in the Indiana Supreme Court (SCOTSI) and Indiana Court of Appeals (COA). It is hard to say when the trend commenced since the disqualifying aspect of “lack of standing” is old and venerable to some who are not your blogger.

While a frequent critic of the legislative branch, the CLB shows a regard for statutory standing that is not shared by our courts of appellate jurisdiction. An excellent example of the point is found in City of Gary v. Nicholson, 190 N.E.3d 349 (Ind. 2022), as decided July 21, 2022 in the SCOTSI. Justice Slaughter wrote for a unanimous SCOTSI holding that the statutory grant of “domicile standing” to challenge certain defective local ordinances is meaningless. The SCOTSI held that standing to sue (here to challenge an unlawful ordinance) requires injury in the nature of a special or individual injury as opposed to an “undifferentiated public interest.” If I should sue a utility company for unlawful pollution of our air, must I live beneath the smokestack and suffer from COPD or worse? Or would it be enough that I (like everyone else) am forced to breathe air containing harmful coal ash particulates?

Another recent example of the lack of standing fad is Lockerbie Glove Co. Town Home HOA v. Indianapolis Historic Preservation Commission, as decided August 30, 2022 in the COA. Therein the HOA and some of its individual home owners sought to enjoin the construction of a multi-use building and parking garage that (allegedly) would violate a “covenant” and the “historic plan” imposed upon the Lockerbie historic area. The plaintiffs were close neighbors of the proposed development and claimed statutory standing under IC 36-7-11.1-12(b) as “interested persons” or “affected owners.” They alleged no special injury in that the statute does not require such. The unanimous COA panel cited the Nicholson case and declared that injury is now “a constitutionally minimum requirement” for standing to sue. The constitutional defect is described as one of “Distribution of Powers.” The theory seems to be that standing is the sole province of the judiciary where the legislature may not tread. The CLB disagrees and notes the circumstance that the defendants failed below to argue unconstitutionality of the statutory grant of standing. The COA’s Lockerbie decision deserves to be vacated on Transfer, though our SCOTSI is unlikely to grant Transfer.

Notably, the plaintiffs asserted in their challenge to the multi-use development that “the covenant prohibits anything other than residential use.” The CLB is familiar with real estate covenants that run with the land but unfamiliar with any requirement that an owner of land within the covenant area must show injury or special injury in order to enforce the covenants.

The COA’s citation to the relevant constitutional provision is “Article 3″ of the Indiana Constitution. The citation is more specific than it appears in that “Article 3″ has only one Section, to-wit:

“Section 1. The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”

To the CLB there is nothing unconstitutional in the legislative branch creating a statutory cause of action. Dissolution of Marriage is a good example. Others are eviction, protective orders, and declaratory judgment. The power to create a cause of action inherently includes the power to declare who may file an action under it.

An obvious problem with the popularity of lack-of-standing dismissals is that the judiciary thereby immunizes unlawful conduct. Such a result should not be a goal of the judiciary. A second obvious problem is how the judiciary is emasculating the legislative branch and its perfectly constitutional statutory grants of standing to uphold its laws. If the General Assembly can find a means of retaliation, the CLB will applaud.

The East Chicago rendition of Gary v. Nicholson is Serbon v. City of East Chicago, as decided August 15, in the COA. The lesson here to plaintiff’s lawyers is to always allege injury in the Complaint even if you appear to have statutory standing.