Meeting the Sin Laws » standing

Fantasies & Foundries

Cary Wiggins — Tue, 21 Apr 2009 01:48:04 +0000

“This case arises from a dispute regarding the denial of various applications for certificates of occupancy,” innocuosly begins this opinion. We quickly learn the plaintiff’s retail establishments sell,” inter alia, lotions, creams, oils, herbal pills, lingerie, games, bachelor and bachelorette party goods, condoms, cards, costumes, accessories, and instructional video tapes and DVD’s.” Well now I understand.

A city may withhold a CO if the business’s premises is unreasonably dangerous. Or perhaps if the land use is “incompatible” with the surrounding area or zoning district. But what can the City do if the business’s premises unreasonably places the employees in harm’s way? The answer might depend on who stands to profit.

On an unrelated note, the United States District Court for the Northern District of Texas dismissed the heart of this matter on standing and ripeness grounds.

I’m still (without) standing

Cary Wiggins — Sat, 06 Sep 2008 13:57:41 +0000

So close, yet so far. That’s the motto in this case.

C. Blake’s Bar & Grill landed a $1.375 million judgment against the City of St. Peters, Missouri and others. The bar — more specifically, the bar’s sole shareholder’s husband — had alleged that the city increased police presence around the establishment and ultimately revoked its liquor license when the bar’s husband exercised his First Amendment right to free speech. (The husband had written some letters to the editor of a local newspaper which were indirectly critical of the city’s mayor.)

About one month ago, the Eighth Circuit Court of Appeals reversed that verdict “with instructions to vacate the judgment” and “dismiss the complaint for lack of jurisdiction.” Why? The bar did not have third-party standing to raise the husband’s free-speech claim. Some news coverage here.

This ruling reaffirms a settled theory of physics [law]: you can’t stand up [for constitutional rights] without standing.

Mommy, this commercial is making me thirsty…

Cary Wiggins — Sun, 22 Jul 2007 02:18:00 +0000

… so please give me your purse — I’ll need your money, your car keys and my fake I.D. card.

This opinion was issued this week from the Sixth Circuit Court of Appeals. The plaintiffs are the parents of minor children, and the defendants are (among others) domestic manufacturers and importers of alcoholic beverages, including Anheuser-Busch, Inc. The claim: the defendants’ advertising is responsible for the illegal (underage) purchase of alcoholic beverages by minor children, and the plaintiffs’ children have been subject to these advertising campaigns.

Can you guess the needle that popped the plaintiffs’ balloon? Yep, standing. The “irreducible constitutional minimum of standing” comprises three requirements: injury in fact, causation, and redressability. The parents claimed two kinds of injury, economic injury and injury to their parental rights. As to the latter type of injury,

This Court is aware of no legal authority that would support restriction of a private party’s freedom of speech and expression under the theory that the expressed ideas interfere with a parent’s right to make decisions regarding their children’s upbringing. Parents have a right to make fundamental decisions about a child’s upbringing, but they have no legal right to prevent other private parties from attempting to influence their children.

The economic injury claim failed “principally because these plaintiffs have not alleged that their children have purchased any alcohol — that is, these plaintiffs have not alleged that they have suffered any economic injury. Therefore, the plaintiffs’ complaints do not allege a legal ‘injury in fact’ based on this theory.”

After gutting the plaintiffs’ case on standing’s “injury in fact” requirement, the court of appeals went on to point out the causation problem:

As the plaintiffs’ complaints acknowledge, laws in both forum states protect against the underage consumption of alcohol — both the sale of alcohol to and the purchase of alcohol by a minor are unquestionably illegal. Therefore, the causal connection between the defendants’ advertising and the plaintiffs’ alleged injuries is broken by the intervening criminal acts of the third-party sellers and the third-party, underage purchasers.

The case didn’t survive a Rule 12(b)(6) motion to dismiss. That’s not surprising (IMHO). As the court so eloquently put it:

[I]f outlawing the actual sale and purchase is insufficient to remedy the alleged injuries (which is the premise underlying the plaintiffs’ theories), then outlawing mere advertising must be insufficient as well. Consequently, the plaintiffs cannot demonstrate redressability. If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not by judicial fiat.

Good (and bad) things come in small packages

Cary Wiggins — Wed, 11 Oct 2006 14:16:00 +0000

The Tenth Circuit Court of Appeals issued this opinion yesterday. The case involves a retail novelty store, Dr. John’s, that sells a “range” of adult products. When the City of Roy (Utah) insisted that Dr. John’s submit to its sexually oriented business (SOB) licensing scheme, Dr. John’s launched a comprehensive challenge to the city’s SOB ordinances. At the core of these challenges was one to the “pre-packaged studies” that local governments frequently review (or cite) in support of the need for stringent laws regulating adult entertainment. The opinion walks through several issues, but found error in only one decided by the district court: whether the ordinance was properly supported as targeting the untoward “secondary effects” adult businesses are thought to produce. The Court stated, “It is unclear from the record what evidence supporting and countering the City’s rationale that the ordinance was indeed necessary to prevent these negative effects was presented to, and considered by, the district court.”

If, on remand, Dr. John’s succeeds in refuting the veracity and reliability of the city’s “pre-packaged” studies, the remainder of this Tenth Circuit opinion might become “retroactive dicta.”