HUNSUCKER v. FALLIN

WINCHESTER, J, with whom GURICH, V.C.J. joins, dissenting:

¶ 1 I dissent to the majority opinion which prematurely strikes down the Legislature’s attempt to restructure the State’s impaired driving laws, 47 O.S.2011 § 517 et seq. I do not find that the plaintiffs in this case, attorneys who claim their business interests will be affected by the enactment Of the proposed laws, have -the requisite standing .to bring suit.

¶ 2 Today’s majority opinion strays far from our traditional' standing authority, stretching the publici juris standing doctrine well beyond the intent of the rule’s exception. As a result, the majority opinion will allow back-door lawsuits brought by attorneys to challenge any legislation, that might potentially impact their bottom dollar, all under the guise of a public interest controversy. The majority fails to recognize that the plaintiffs in this case have no directly traceable interest to the rights alleged to be violated by the proposed statutes. Indeed, the plaintiffs’ own, admitted personal interest in the case is a hypothetical, monetary loss reliant on the retention of future, potential clients who illegally drive while impaired in this State. In my opinion, this is insufficient to constitute the necessary, directly traceable interest to confer standing..

BACKGROUND

¶3 The State’s current impaired driving laws have created an administrative nightmare for the Department of Public Safety (DPS), which is extremely, costly and inefficient for the State, but beneficial to attorneys hired by clients arrested for impaired driving to represent them in license revocation hearings before DPS. The Legislature, with the proposition of S.B. 643, created á new Act, the Impaired Driving Accountability Program (IDAP), to remedy the backlog of administrative hearings . by eliminating automatic license privilege revocations.

¶ 4 S.B., 643 eliminates the administrative backlog.by .removing the need for driver’s license revocation hearings and foregoing automatic suspensiqn of the driver’s license, instead deferring the decision on revocation until the driver’s criminal case is resolved or the driver under arrest enters an agreement with DPS for the placement of an ignition interlock device. Under such an agreement, the driver is allowed to continue to drive with an unrevoked license, in the form of a temporary receipt, so long as the interlock device is installed in their ear. If the driver successfully completes the interlock device program, full, unrestricted driving privileges will be restored, no license revocation will appear on the driver’s record, and the driver will not be charged a license reinstatement fee. If the driver refuses to enter the IDAP agreement, the temporary license will remain in effect until the driver’s criminal case is resolved. Also new under the proposed statute^, a driver -will face a misdemeanor charge if he or she refuses to take State’s blood or breath test.

DISCUSSION

¶ 5 Standing refers to a party’s legal right to seek relief in a judicial forum. Fent v. Contingency Review Bd., 2007 OK 27, ¶7 , 163 P.3d 512, 519 . The burden is on the party invoking a court’s jurisdiction to establish that it has the requisite standing to seek relief in the court. Oklahoma Education Ass’n v. State ex rel. Oklahoma Legislature, 2007 OK 30, ¶ 7 , 158 P.3d 1058, 1062 . I believe the plaintiffs in this case have failed to meet their burden.

¶ 6 The U.S. Supreme Court has defined the question of standing as whether “a party has a sufficient stake in an otherwise justicia-ble controversy to obtain judicial resolution of that controversy.” Sierra Club v. Morton, 405 U.S. 727, 731-732 , 92 S.Ct. 1361, 1364 , 31 L.Ed.2d 636 (1972). See also, Cities Serv. Co. v. Gulf Oil Corp., 1999 OK 16, 115 , 976 P.2d 545, 547 (To have standing, the party must be “proper party to seek adjudication of the asserted issue.”). The general, threshold criteria of standing include: (1) a legally protected interest which must have been injured in fact ie., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. Fent v. Contingency Review Bd., 2007 OK 27, ¶7 , 163 P.3d 512, 519 . The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Id. Moreover, the injury in fact must be “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 , 112 S.Ct. 2130, 2136 , 119 L.Ed.2d 351 (1992).

¶ 7 As a general rule, a litigant l^cks standing to assert the rights of others. See United States Dep't of Labor v. Triplett, 494 U.S. 715, 720 , 110 S.Ct. 1428, 1431 , 108 L.Ed.2d 701 (1990) (plurality opinion). See also Barrows v. Jackson, 346 U.S. 249, 255 , 73 S.Ct. 1031, 1034 , 97 L.Ed. 1586 (1953) (Ordinarily, one may not claim standing to vindicate the constitutional rights of a third party); Warth v. Seldin, 422 U.S. 490, 499 , 95 S.Ct. 2197, 2205 , 45 L.Ed.2d 343 (1975) (A plaintiff must assert his own legal rights and interests and may not rest his claim to relief on the legal rights or interests of third parties.). Judicial review should not “be placed in the hands of ‘concerned bystanders’ to use it simply as a Vehicle for the vindication of value interests.’” Diamond v. Charles, 476 U.S. 54, 62 , 106 S.Ct. 1697 , 90 L.Ed.2d 48 (1986)(quoting United States v. SCRAP, 412 U.S. 669, 687 , 93 S.Ct. 2405 , 37 L.Ed.2d 254 (1973)).

¶ 8 The U.S. Supreme Court does not look favorably on third party standing and has imposed a more stringent exam when standing is sought in such cases. Kowalski v. Tesmer, 543 U.S. 125, 125-126 , 125 S.Ct. 564, 565 , 160 L.Ed.2d 519 (2004). Two additional showings must be'made: (1) “whether the party asserting the right has a ‘close’ relationship with the person who possesses the right” and (2) “whether there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” Kowalski, 543 U.S. at 130 , 125 S.Ct. at 567 , citing Powers v. Ohio, 499 U.S. 400, 411 , 111 S.Ct. 1364, 1370-1371 , 113 L.Ed.2d 411 (1991).

¶ 9 In Kowalski v. Tesmer, 543 U.S. 125, 125-126 , 125 S.Ct. 564, 565 , 160 L.Ed.2d 519 (2004), the Court held that attorneys lacked third party standing to bring suit on behalf of future, hypothetical clients. Recognizing no existing relationship between the attorneys and the alleged, future clients, the Court found the requisite “close relationship” lacking. Kowalski, 543 U.S. at 131 , 125 S.Ct. at 568 . Likewise, the Court disregarded the attorney’s arguments that the alleged clients were actually hindered from asserting their own rights. Kowalski, 543 U.S. at 132 , 125 S.Ct. at 569 . The Kowalski Court recognized that “it would be a short step from the ... grant of third-party standing in this case to a holding that lawyers generally have third-party standing to bring in court the claims of future unascertained clients.” Kowalski, 543 U.S. at 134 , 125 S.Ct. at 570 .

¶ 10 A similar hypothetical injury was deemed insufficient by the Court in Diamond v. Charles, 476 U.S. 54 , 106 S.Ct. 1697 , 90 L.Ed.2d 48 (1986). There, the Court refused to confer third party standing on a pediatrician who alleged possible future, pecuniary harm from higher rates of abortions. In that case, Illinois had opted not to defend one of its statutes that interfered with the right to abortion. Diamond, a pediatrician, had been allowed to intervene in the case below to defend the constitutionality of the Illinois provision. His interest in the case rested on his assertion that if the laws were struck down, abortion would increase resulting in fewer births, which would ultimately cause his client base to shrink. The Diamond Court found that such a speculative claim of “injury in fact,” based upon numerous future contingencies, was insufficient to allow third-party standing. Diamond, 476 U.S. at 66 , 106 S.Ct. 1697 .

¶ 11 Our own Court has recognized that standing must be predicated on cognizable, economic harm when a legislative act is challenged as unconstitutional or invalid. Osage Nation v. Board of Commissioners of Osage County, 2017 OK 34 , ¶61, 394 P.3d 1224, 1244 . To invalidate a statute as unconstitutional, a party must establish standing by showing that the legislation sought to be invalidated detrimentally affects his/her interest in a direct, immediate and substantial manner. Id.

¶ 12 Typically, our publid juris standing cases have involved situations such as where taxpayers were challenging government expenditures, which is not the ease herein. We have, however, recognized judicial discretion in select cases, not involving government expenditures, to grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance. See Gentges v. Okla. State Election Bd., 2014 OK 8 , 319 P.3d 674 ; State ex rel. Howard v. Oklahoma Corporation Commission, 1980 OK 96 , 614 P.2d 45 . Nevertheless, we have held that this limited discretion is only properly exercised to grant standing where the party challenging the legality of the government action is the actual object of the action at issue. Oklahoma Public Employees Association v. Oklahoma Department of Central Services, 2002 OK 71, ¶ 16 , 55 P.3d 1072, 1079 (emphasis added), In such cases, “there is ordinarily little question that the action ... has caused ... injury, and that a judgment preventing or requiring the action will redress it.” Id.

¶ 13 Here, the plaintiffs are unable to claim that they are the object of the challenged action and any judgment regarding the statute’s constitutionality would only potentially affect them indirectly. The admitted and overriding reason for the involvement herein of the plaintiffs is their alleged potential, pecuniary loss at the abolition of administrative hearings for driver’s license revocations. This claimed injury is as speculative and hypothetical as the injury alleged in both Kowalski and Diamond and should not serve as any basis upon which to confer standing.

¶ 14 The majority emphasizes that granting standing to plaintiff attorneys in this case would benefit the community as a whole. I find it difficult to see how an attorney making an alleged profit on potential, future criminal defendants is a benefit for the public interest or community as a whole. Not only is there a complete absence of evidence to show that the plaintiffs would in fact earn less income as a result of the proposed statutes, the plaintiffs cannot even point to a named client who has been or is threatened by the proposed statutes. Significantly, there is no reason why an alleged future client could not assert his or her own claim. This fact alone should be sufficient to deny standing to plaintiffs.

¶ 15 Even if we are to assume standing in this ease as the majority urges with' its convoluted reasoning, the plaintiffs cannot escape the requirement of an actual, justiciable controversy. In actions seeking declaratory relief, the existence of a justiciable controversy is paramount. In Knight ex rel. Ellis v. Miller, 2008 OK 81 , 195 P.3d 372 , this Court set forth the requirements for standing under the Oklahoma Declaratory Judgment Act:

The requisite precedent facts or conditions which the courts, generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) - the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protect[a]ble interest; and (4) the issue involved in the controversy must be ripe for judicial .determination, (emphasis added).

Id, at ¶ 8,196 P.3d at 376 (quoting Gordon v. Followell, 1964 OK 74, ¶ 8 , 391 P.2d 242, 244 ).

¶ 16 If courts were to decide hypothetical controversies, it would take the judiciary beyond the bounds of authorized judicial action and offend the basic principles of the separar tioh of powers. See Dank v. Benson, 2000 OK 40 , 5 P.3d 1088 (Opala, J., concurring at ¶ 6) (“The barriers of justiciability prevent judges from roving outside the judicial role and giving voice to abstract grievances.”) Providing a judgment based on a set of hypothetical facts is no different than issuing a disfavored, advisory opinion. See Knight ex rel. Ellis v. Miller, 2008 OK 81, ¶8 , 196 P.3d 372, 376 (“This Court does not issue advisory opinions or answer hypothetical questions where there is no case or controversy, and this rule does not change when a declaratory judgment is involved.”); Richardson v. State ex res. Okla. Tax Comm., 2017 OK 86 , ¶5, 406 P.3d 671 (“The Supreme Court will not decide abstract or hypothetical questions.”).

CONCLUSION

¶ 17 This case is a classic example of placing the cart before the horse. Here, the plaintiffs, as third parties to the claimed constitutional violations of the proposed S.B. 643, have suffered no actual, present injury and it is unknown how, if at all, their income would be affected by the implementation of the proposed statutes. Enlarging public interest standing to, allow, attorneys to challenge a proposed law’s possible application to a potential, future client flies in.the face of U. S. Supreme Court case law, as well as our own, requiring strict adherence to the justici-ability of a case.

¶ 18 The relaxation of standing requirements such as is promoted by the majority opinion will result in a standardless evaluation of standing. Future standing queries will be left to a subjective, case by case assessment by a court regarding the claims it deems sufficiently significant to merit review. Standing jurisprudence has long provided a fundamental limitation on government authority that cannot be disregarded based on discretion. I respectfully dissent.