*1 IN THE SUPREME COURT OF NORTH CAROLINA
No. 231A18
Filed 5 February 2021 THE COMMITTEE TO ELECT DAN FOREST, A POLITICAL COMMITTEE
v. EMPLOYEES POLITICAL ACTION COMMITTEE (EMPAC), A POLITICAL COMMITTEE
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 260 N.C. App. 1 (2018), reversing an order of summary judgment entered on 15 February 2017 by Judge Allen Baddour in Superior Court, Wake County. On 5 December 2018, the Supreme Court allowed defendant’s petition for discretionary review as to additional issues. Heard in the Supreme Court on 4 November 2019.
Walker Law Firm, PLLC, by David Steven Walker, II, for plaintiff.
Stevens Martin Vaughn & Tadych, by C. Amanda Martin and Michael J. Tadych, for defendant.
HUDSON, Justice. At issue here is a question of first impression for our Court: whether the North Carolina Constitution limits the jurisdiction of our courts in the same manner as the standing requirements Article III imposes on federal courts, including the requirement th at the complaining party must show she has suffered “injury in fact,” even where an Act of the North Carolina General Assembly expressly confers standing to sue on a party, as it did in N.C.G.S. § 163-278.39A(f) (2011) (now repealed). We hold that it does not, and we affirm the decision of the Court of Appeals.
I. Factual Background and Procedural History In 2012, Linda Coleman and Dan Forest were, respectively, the Democratic
and Republican candidates for Lieutenant Governor of North Carolina in the general election. The Employees Political Action Committee (“EMPAC” or “defendant”), a political action committee for the State Employees Association of North Carolina (SEANC), ran television advertisements supporting Ms. Coleman. According to plaintiff’s complaint, the original version of the advertisement placed by EMPAC included a photograph of an individual that was approximately one-eighth the height of the full advertisement and, at any rate, was not a full-screen picture as then required by law. Furthermore, the individual in the picture, Dana Cope, was neither the Chief Executive Officer nor the treasurer of EMPAC as required by then-existing law.
After discovering the ad, the Committee to Elect Dan Forest (hereinafter, ¶ 3 “plaintiff” or “the Committee”) sent a notice and letter to the North Carolina State Board of Elections and EMPAC regarding the size of the picture. The notice did not mention that the wrong individual was pictured. EMPAC subsequently removed the advertisement and replaced it with one including a full-screen picture. The full-screen picture in the second advertisement was also of Mr. Cope, and therefore also failed to comply fully with disclosure requirements. Mr. Forest ultimately won the 2012 election for Lieutenant Governor.
¶ 4 Thereafter, on 9 March 2016, his Committee filed a complaint in the Superior Court of Wake County against EMPAC, alleging violations of N.C.G.S. § 163-278.39A. In 1999, the North Carolina General Assembly enacted N.C. Session Law 1999- 453, codified at N.C.G.S. § 163-278.38Z et seq. (2011) (herein after, “Disclosure Statute”), as a “ Stand By Your A d” law. The Disclosure Statute provided specific requirements for television and radio ads placed by candidate campaign committees, political action committees, and others supporting or opposing candidates. See generally N.C.G.S. § 163-278.39A. In pertinent part, the Disclosure Statute provided that television ads by political action committe es “shall include a disclosure statement spoken by the chief executive officer or treasurer of the political action committee and containing at least the following words: ‘The [name of political action committee] political action committee sponsored this ad opposing/supporting [name of candidate] for [name of office].’ ” Id. § 163-278.39A(b)(3). Furthermore, the Disclosure Statute required that, for all ads on television falling under the statute, “an unobscured, full -screen picture containing the disclosing individual, either in photographic form or through the actual appearance of the disclosing individual on camera, shall be featured throughout the duration of the disclosure statement.” Id. § 163-278.39A(b)(6). The Disclosure Statute also included a notable enforcement mechanism. In a
section entitled “Legal Remedy,” it created a private cause of action as follows:
[A] candidate for an elective office who complied with the television and radio disclosure requirements throughout that candidate’s entir e campaign shall have a monetary remedy in a civil action against (i) an opposing candidate or candidate committee whose television or radio advertisement violates these disclosure requirements and (ii) against any political party organization, political action committee, individual, or other sponsor whose advertisements for that elective office violates these disclosure requirements[.]
Id.
§ 163-278.39A(f). The North Carolina Court of Appeals has previously
characterized the cause of action created by the General Assembly in the Disclosure
Statute as “unique in the world of election law.”
Friends of Joe Sam Queen v. Ralph
Hise for N.C. Senate,
EMPAC: (1) from 8 October through 25 October 2012, EMPAC ran a television ad that did not include “a full - screened picture containing the disclosing individual” but a much smaller one; and (2) Mr. Cope, the individual pictured in both versions of the ad, was not in fact “the Chief Executive Officer or treasurer of EMPAC.” The complaint included as attachments an affidavit from Mr. Forest attesting the Committee was bringing the complaint on his behalf, records of the proposed schedule for ad run times with Time Warner Cable, the invoices for the ads, and copies of the notice and letter sent to the State Board of Elections and EMPAC. Defendant filed an answer and motion to dismiss based on lack of standing, which was denied. After failing to answer discovery, plaintiff voluntarily dismissed the lawsuit on 30 June 2015 and refiled on 9 March 2016.
After discovery in the case proceeded, defendant filed a motion for summary ¶ 8 judgment on 29 June 2016, arguing the Disclosure Statute violated the First Amendment as a content-based restriction on speech. After hearing the motion on 16 August 2016, the trial court entered an order on 15 February 2017 granting defendant’s motion for summary judgment, stating that “plaintiff ha[d] failed t o allege any forecast of damage other than speculative damage” and that “[i]n the absence of any forecast of actual demonstrable damages, the statute at issue is unconstitutional as applied.” Plaintiff gave timely notice of appeal to the North Carolina Court of Appeals. In a split decision issued on 19 June 2018, the Court of Appeals reversed the
trial court’s grant of summary judgment to EMPAC.
Comm. to Elect Dan Forest v.
Employees Pol. Action Comm. (EMPAC)
, 260 N.C. App. 1, 2 (2018). The majority
reasoned that by “actual demonstrable damages” the trial court meant the Committee
lacked standing to sue because Mr. Forest had not shown adequate “injury.” Relying
on decisions of this Court, the majority held the Committee had standing to sue
because the Disclosure Statute creates a private right of action for a candidate
against a party when that party runs an ad in the candidate’s election violating the
Statute and “the breach of the private right, itself, constitutes an injury which
provides standing to seek recourse.”
Id.
at 8. The majority further held the damages
awarded under the Disclosure Statute were not unconstitutionally excessive even
absent a showing of actual damages and that the Disclosure Statute did not
per se
violate the First Amendment, as EMPAC had argued on appeal.
Id.
at 11 – 12.
Chief Judge McGee dissented from the majority decision of the Court of
Appeals, maintaining that plaintiff had not satisfied the condition precedent required
by the Disclosure Statute and also that plaintiff lacked standing to sue because it had
not shown “actual harm.”
Id.
at 13 (McGee, C.J., dissenting). While noting that
“North Carolina courts are not constitutionally bound by the standing jurisprudence
established by the United States Supreme Court[, ]” the dissent also noted that North
Carolina appellate courts had previously applied United States Supreme Court
decisions to questions of standing and, therefore, United States Supreme Court
precedent is binding on the Court of Appeals.
Id.
at 14. The dissent noted that our
courts have used the language “injury in fact” to describe the standing inquiry and
then cited and extensively reviewed the recent United States Supreme Court decision
in
Spokeo, Inc. v. Robins
,
¶ 11 EMPAC’s petition for discretionary review of additional issues, which asked this Court to determine whether the Disclosure Statute was an unconstitutional restriction on EMPAC’s free -speech rights and what standard should apply to that inquiry.
II. Standard of Review
We review the grant or denial of summary judgment
de novo
.
Variety
Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC
, 365 N.C. 520, 523 (2012).
Summary judgment shall be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. G.S. 1A-1, Rule 56(c) (2019). In ruling on a
summary judgment motion, we “consider the evidence in the light most favorable to
the non-movant, drawing all inferences in the non- movant’s favor.”
Morrell v. Hardin
Creek, Inc.
,
III. Analysis
Defendant argues plaintiff has failed to establish an “injury in fact” sufficient
to have standing to sue under the North Carolina Constitution. Plaintiff argues that,
unlike the United States Constitution, the North Carolina Constitution does not
require a plaintiff to make an additional showing of injury where a statutory right of
action is conferred by the General Assembly in order for the case to come within the
power of our courts. Whether the North Carolina Constitution limits the jurisdiction
of our courts in the same manner as the standing requirements Article III
[6]
imposes
on federal courts, including the requirement that the complaining party show “injury
in fact,” even where an Act of the General Assembly, such as the Disclosure Statute
here, expressly confers a statutory cause of action, is a question of first impression
for this Court.
[7]
While we have held the Court of Appeals errs in relying on federal
standing doctrine, and, specifically, that “[w]hile federal standing doctrine can be
instructive as to general principles . . . and for comparative analysis, the nuts and
bolts of North Carolina standing doctrine are not coincident with federal standing
doctrine[,]”
Goldston v. State
,
¶ 14
Madison
,
A. Textual Analysis As ours is a written constitution, we begin with the text. See State ex rel.
Martin v. Preston
,
The will of the people as expressed in the Constitution is the supreme law of the land. In searching for this will or intent all cognate provisions are to be brought into view in their entirety and so interpreted as to effectuate the manifest purposes of the instrument. The best way to ascertain the meaning of a word or sentence in the Constitution is to read it contextually and compare it with other words and sentences with which it stands connected.
Id.
at 449. In construing the document, “[w]e are guided by the basic principle of
constitutional construction of giving effect to the intent of the framers.”
State v. Webb
,
claim or seek judicial enforcement of a duty or right.” Black’s Law Dictionary (11th
ed. 2019). The term does not appear in the North Carolina Constitution, nor does it
appear in the United States Constitution. Instead, federal courts have construed
Article III’s limited extension of federal “Judicial Power” to hear certain categories of
“Cases” and “Controversies” as giving rise to the standing requirement. U.S. C onst.
Art. III, § 2;
See, e.g., Flast v. Cohen
,
power as follows:
The judicial power of the State shall, except as provided in Section 3 of this Article, be vested in a Court for the Trial of Impeachments and in a General Court of Justice. The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government, nor shall it establish or authorize any courts other than as permitted by this Article.
N.C. Const. Art. IV, § 1. As a matter of textual interpretation, we note this provision does not expressly define the term “judicial power.” The provision also does not impose any express limitation on the exercise of the judicial power itself, such as the “case or controversy” requirement of the United States Constitution. To the contrary, the only limitation in the text of the provision protects the judicial power and jurisdiction of the courts from intrusion by the General Assembly except by vesting administrative agencies with judicial powers reasonably necessary to carry out their work under Article IV, Section 3. This provision was not enacted until the North Carolina Constitution of 1868, and has been readopted largely intact in subsequent versions since then. See N.C. Const. of 1868, art. IV., § 1; N.C. Const. of 1868, art. IV, § 1 (1935); N.C. Const. Art. IV, § 1 (1971). This Court has previously tied another provision of our Constitution to the
¶ 18 concept of standing: the remedy clause, an aspect of the open courts provision of Article I, Section 18, which states “every person for an injury done him in his lands, goods, pers on, or reputation shall have remedy by due course of law[.]” N.C. Const. Art. I, § 18; see Mangum v. Raleigh Bd. of Adjustment , 362 N.C. 640, 642 (2008) (quoting N.C. Const. Art. I, § 18). A version of this provision was included in the Declaration of Rights in 1776, but the current text of the provision was not enacted until the 1868 Constitution as well. See N.C. Const. of 1776, Dec. of Rights, § XIII (1776); N.C. Const. of 1868, art. I, § 35. While the text of this provision does refer to “injury,” the plain meaning of the provision prohibits the use of government power to withhold a remedy to an injured party; it does not appear on its face to limit the exercise of judicial power to any particular set of circumstances. If the framers of our Constitution intended any limitation on the exercise of
judicial power analogous to the standing requirements imposed by the federal constitution, it is not clear from the plain meaning of the constitutional text. Therefore, to determine what the framers meant by “judicial power” and other provisions including the remedy clause, in addition to “the text of the constitution,” we must examine “the historical context in which the people of North Carolina ad opted the applicable constitutional provision, and our precedents.” McCrory , 368 N.C. at 639. We begin with surveying standing at common law before turning to a view of standing in federal caselaw and, finally, to our own Constitution and caselaw. B. English Common Law History English common law provides an important touchstone for determining the
intent of the framers of both the federal and, in many cases, state constitutions. “ ‘It is manifest,’ said the General Assembly of North Carolina in 1715 ‘ that the laws
of England are the laws of this Government, so far as they are compatible with our
way of living and trade.’ ”
State v. Willis
,
All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.
N.C.G.S. § 4- 1 (2019). “The ‘common law’ referred to in N.C.G.S. § 4 -1 has been held
to be the common law of England as of the date of the signing of the American
Declaration of Independence.”
Gwathmey v. State
,
“stranger suits.” “The English tradition of
locus standi
in prohibition and certiorari
is that ‘a stranger’ has standing, but relief in suits by strangers is discretionary. If,
however, the official’s lack of ‘jurisdiction’ [ ] appeared on the face of the record, relief
followed as [a matter] of course.” Jaffe,
Standing to Secure
,
Prohibitions by law are to be granted at any time to restraine a court to intermeddle with, or execute any thing, which by law they ought not to hold plea of, and they are much mistaken that maintaine the contrary . . . . And the kings courts that may award prohibitions, being informed either by the parties themselves, or by any stranger , that any court temporall or ecclesiasticall doth hold plea of that (whereof they have not jurisdiction) may lawfully prohibit the same, as well after judgment and execution, as before.
Edward Coke, 2
Institutes of the Laws of England
602 (1797) (emphasis added).
[13]
Similarly, the writ of certiorari in English practice could be brought by strangers.
[14]
The prerogative writ of mandamus was also extended to strangers without a
personal stake. Professor Louis Jaffe has described the writ of mandamus
[15]
as being
“invented” by Lord Coke, sitting on the King’s Bench, “if not out of whole cloth then
at least out of a few rags and tatters[.]” Jaffe,
Standing to Secure
, 74 Harv. L. Rev. at
1269. In
James Bagg’s Case
, Lord Coke, reasoning the first assertion of jurisdiction
through the writ was justified “so that no Wrong or Injury, either Publick or Private,
can be done, but that it shall be reformed or punished by due Course of Law.”
[16]
11
Coke 93b, 98a, 77 Eng. Rep. 1271, 1278 (K.B. 1615). English cases have long held
that, in matters of public right, anyone may seek the writ of mandamus to enforce
the public’s interest.
[17]
See People ex rel. Case v. Collins
,
of plaintiff is mooted, though the lists of the cases in the digest strongly suggest the possibility
that the plaintiff in some of them was without a personal interest.” Jaffe,
Standing to Secure
,
which a public office is held or a franchise is claimed.” “Quo Warranto,” Black’s Law
Dictionary (11th ed. 2019). The writ of
quo warranto
was ultimately modified by England’s
Statute of Anne, 9 Anne c. 20 (1710), after which the statutory “information in nature of
quo
warranto
” lied instead.
See Saunders v. Gatling
,
no objection that the party applying is not a member of the corporation.”). See also Berger, Standing to Sue , 78 Yale L. J. at 823 (discussing same). Finally, English law recognized the pr actice of “informers” and “relators”
actions, which presaged modern “private attorney general actions.”
[“Informers” actions] went beyond making available procedures to control unlawful conduct, and offered financial inducements to strangers to prosecute such actions, provided for by a “very large” number of statutes “in which the public at large was encouraged to enforce obedience to statutes by the promise of a share of the penalty imposed for disobedience . . .” Such informers had “no interest whatever in the controversy other than that given by statute,” and the pecuniary reward thus offered to strangers was little calculated to read cognate remedies narrowly.
Berger, Standing to Sue , 78 Yale L. J. at 825 – 26 (footnotes omitted). A “relator” action, often for a writ of quo warranto , could be brought by the Attorney General, according to Blackstone, “at the relation of any person desiring to prosecute the same, (who is then styled the relator ). . . .” William Blackstone, 3 Commentaries on the Laws of England 264. The relator need have no personal interest in the matter apart from the public interest. See, e.g., Rex v. Mayor of Hartford , 91 Eng. Rep. 325 (1700) ( quo warranto issued against mayor and alderman to show ‘by what authority they admitted persons to be freemen of the corporation who did not inhabit in the borough. The motion was pretended to be on behalf of freemen, who by this means were encroache d upon.” (emphasis added)). In summary, under English common law practice, which informs our
interpretation of the intent of the framers of our State’s constitutional text, the
concept of “standing,” as a personal stake, aggrievement, or injury as a prerequisite
for litigation brought to vindicate public rights, was basically absent. Instead, the
English practice included the prerogative writs and informers and relators actions,
which “took forms astonishingly similar to the ‘standingless’ public action or ‘private
attorney general’ model that modern standing law is designed to thwart.” Winter,
Metaphor
,
¶ 28 power is a product of the transformative 1868 Reconstruction convention and the most recent reorganization of our Constitution in 1971, along with the major amendments in 1935. Therefore, one may object that, whatever the meaning of the term as used by colonial lawyers raised on the English common law in 1776, that meaning no longer holds today. We therefore examine the law of standing as it evolved in America and, in particular, North Carolina to determine if that meaning still applies.
C. The American Experience In the century following the Revolution, the American states, including North
Carolina, inherited the English common law of prerogative writs and, in general, drew a distinction between writs enforcing private rights, which required a showing of legal right or injury (i.e., the existence of a cause of action, as a matter of substantive — not constitutional — law), and those enforcing public rights, which could be brought by anyone or, at its most restrictive, a citizen or taxpayer. See Couey , 357 Or. at 496 – 98 (summarizing the caselaw of the period). Furthermore, in the late- nineteenth and early-twentieth centuries state courts, including in North Carolina, began expressing a concern with mootness, not as a constitutional but as a discretionary, prudential limitation on judicial power. See id. at 498 – 99. One early case reveals the early framers’ conception of the judicial powers of
this Court, including the power to hear prerogative writs, relative to the English
courts. In
Griffin v. Graham
, (1 Hawks)
though the jurisdiction of charities in England belong[ed] to the Court of Chancery, not as a Court of Equity, but as administering the prerogative of the Crown, the Court of Equity of this state hath the like jurisdiction: for, upon the revolution, the political rights and duties of the King devolved upon the people in their sovereign capacity; and they, by their representatives, have placed this power in the Courts of Equity, by the acts of Assembly of 1778, c. 5, and 1782, c. 11.
Griffin
,
showing of personal interest was widely accepted in the nineteenth century. By 1875,
the United States Supreme Court recognized “[t]here [wa]s . . . a decided
preponderance of American authority in favor of the doctrine, that private persons
may move for a [writ of]
mandamus
to enforce a public duty, not due to the
government as such, without the intervention of the government law- officer.”
Union
Pac. R. Co. v. Hall
,
The question, who shall be the relator . . . depends upon the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced, must become the relator. . . . A stranger is not permitted officiously to interfere, and sue out a mandamus in a matter of private concern. But where the object is the enforcement of a public right, the People are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the laws executed, and the right in question enforced.
Pike Cn ty. Comm’rs v. Illinois ex rel. Metz
,
Code of Civil Procedure of 1868, which, largely following the Statute of Anne,
abolished the writ of
quo warranto
and provided a statutory action in the nature of a
writ of
quo warranto
for private persons as relator to challenge the wrongful
occupation of municipal offices in the name of the state, with the permission of the
Attorney General. In 1892, this Court heard an action under the statute filed in the
name of the state by a taxpayer and citizen of Greensboro against the appointment
of a police chief, who challenged the suit on the grounds that the relator “d[id] not
allege that he is entitled to the office, nor has any interest in its emoluments, and
therefo re is not a proper relator.”
State ex rel. Foard v. Hall
,
¶ 34
preponderance” of states throughout the nineteenth century,
see Union Pac. R. Co.
,
D. Federal Standing Law and the “Case” or “Controversy” Requirement
Before resolving the question at hand under the North Carolina Constitution,
we must examine the federal law of standing arising under the United States
Constitution.
[24]
Federal justiciability doctrines — standing, ripeness, mootness, and
the prohibition against advisory opinions — are not explicit within the constitutional
text, but are the fruit of judicial interpretation of Article III’s extension of the “judicial
Power” to certain “Cases” or “Controversies.”
[25]
U.S. Const. art. III, § 2;
see
DaimlerChrysler Corp. v. Cuno
,
Flast v. Cohen , 392 U.S. 83, 94 – 95 (1968). The meaning of these provisions to the framers is not described and the only evidence in the records of the Constitutional Convention is James Madison’s statement that judicial power ought “to be limited to cases of a judiciary nature.” As we previously noted, the North Carolina Constitution lacks this provision. The prohibition against advisory opinions by federal courts is, by far, “the
oldest and most consistent thread in the federal law of justiciability[.]” Wright &
Miller, 13A Fed. Prac. & Proc. Juris. § 3529.1 (3d ed. 2020). The rule against advisory
opinions plainly originates in Article III’s case or controversy requirement, as well as
concerns about separation of powers.
Clinton v. Jones
, 520 U.S. 681, 700 (1997)
(“[T]he judicial power to decide cases and controversies does not include the provision
of purely advisory opinions to the Executive, or permit the federal courts to resolve
non justiciable questions.” (footnotes omitted)). The prohibition was first recognized
in the refusal of the Supreme Court to give advice to the Secretary of War and
Congress on pension applications from veterans of the Revolution, in support of which
the Court held “ ‘[N]either the Legislature nor the Executive branches can
constitutionally assign to the judicial any duties, but such as are properly judicial,
and to be performed in a judicial manner.’ ”
Hayburn’s Case
,
The lines of separation drawn by the Constitution between the three departments of the government — their being in certain respects checks upon each other — and our being judges of a court of the last resort — are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to; especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.
Letter from Chief Justice John Jay and the Associate Justices to President George Washington, August 8, 1793 (cleaned up) (available at https://founders.archives.gov/documents/Washington/05-13-02-0263). As an aspect of the prohibition against advisory opinions, the Court held it could not hear collusive suits, and that exercise of the judicial power required adverse parties. See, e.g., Poe v. Ullman , 367 U.S. 497, 505 (1961); United States v. Johnson , 319 U.S. 302, 305 (1943). In contrast to the well-established rule against advisory opinions, standing
doctrine is of comparatively recent origin. See Winter, Metaphor , 40 Stan. L. Rev. at 1374 (“[A] painstaking search of the historical material demonstrates that— for the first 150 years of the Republic — the Framers, the first Congresses, and the Court were oblivious to the modern conception either that standing is a component of the constitutional phrase ‘cases or controversies’ or that it is a prerequisite for seeking governmental compliance with the law.”). As federal standing evolved from a requirement that a party have a cause of action to an increasingly restrictive tool curbing access to federal courts, the doctrine has been challenged by many scholars for inconsistency. See Gene R. Nichol, Jr., Rethinking Standing , 72 Cal. L. Rev. 68, 68 (1984 ) (“In perhaps no other area of constitutional law has scholarly commentary been so uniformly critical.”). Even the Supreme Court has acknowledged this doctrinal confusion. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc. , 454 U.S. 464, 475 (1982) (“We need not mince words when we say that the concept of ‘Art. III standing” has not been defined with complete consistency . . . .”). From the founding to well into the twentieth century, cases addressing the
justiciability of parties to maintain a suit turned on whether the party could maintain
a cause of action.
See
Sunstein,
Standing After
Lujan,
(1923), the Supreme Court held a person may not sue only as a federal taxpayer who shares a grievance in common with all other federal taxpayers. In Frothingham , the plaintiff sued as a federal taxpayer seeking to restrain the expenditure of federal funds on grants to the states through the Maternity Act of 1921 by arguing it violated the Tenth Amendment reservation of powers to the states. Id. at 486. The Supreme Court rejected the challenge. In holding the plaintiff’ s suit could not be maintained, the Court first held the plaintiff could not avail herself of the equitable powers of the federal courts because, as opposed to a taxpayer of a municipality, her “interest in the moneys of the [federal] treasury . . . is comparatively minute and indeterminable, ” and, therefore, obtaining an injunction as a remedy is inappropriate Id. at 487. The Court suggested that concerns about administrability and separation of powers informed its decision on the exercise of courts’ equitable power. Id. at 487 (“If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money , and whose validity may be questioned.”). The Court provided a further rationale: it “ha[s] no power per se” of judicial review, but “[t]hat question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act.” Id. at 488. Thus “[t]he party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.” Id. While Frothingham first explained the prohibition against taxpayer standing,
Ex parte Levitt
, 302 U.S. 633 (1937), announced the prohibition against citizen
standing. In
Levitt
, the plaintiff sued “as a citizen and a member of the bar of [the
United States Supreme] Court” c hallenging the appointment of Justice Hugo Black
as an Associate Justice of the Supreme Court arguing that, as a sitting United States
Senator, he was ineligible under Article I, § 6.
against “generalized grievances”— in which the plaintiff alleges only an injury he shares in common with all other taxpayers or citizens and alleges no direct injury — to challenge the constitutionality of legislative or executive action in federal court. Some have contended Frothingham ’s prohibition on taxpayer standing and its reasoning is “prudential”— that is, it is a product of judicial self-restraint — while others contend it is constitutional and a product of the case or controversy requirement. [31] Indeed, even one of the progenitors of modern standing, Justice Brandeis, conceived of it as a prudential, not jurisdictional limitation. [32] See time.” U.S. Const. art. I, § 6, cl.2. The salaries of the Supreme Court had been raised while Justice Black served as Senator. Professor Jaffe, for instance, contended Frothingham can be reconciled with the
history of ‘standingless’ public actions in that it “can rest on the ground that until Congress decides otherwise, there is no need for a generally available federal taxpayer’s action.” Louis L. Jaffe, Standing to Secure Judicial Review: Private Actions , 75 Harv. L. Rev. 255, 303 (1961). Whether a standing requirement such as the prohibition against generalized
grievances and attendant requirement for “direct injury” is prudential or jurisdictional may seem academic, but it is a vital distinction. If a limitation is adopted as an exercise in Ashwander v. Tenn. Valley Auth. , 297 U.S. 288, 346, 346 – 48 (1936) (Brandeis, J., concurring) (holding that “[t]he cou rt will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation[,]” is a rule of constitutional avoidance the Supreme Court developed “for its own governance in the cases confessedly within its jurisdiction .” (citing Mellon , 262 U.S. 447) (emphasis added)). An important development in the law of standing happened in the middle of
the twentieth century when the federal Administrative Procedure Act (APA) was
enacted in 1946. In an important provision, the APA provided “A person suffering
legal wrong because of agency action, or adversely affected or aggrieved by agency
action within the meaning of a rele vant statute, is entitled to judicial review thereof.”
5 U.S.C. § 702 (2018 ). The “legal wrong” prong authorized suits based on invasion of
common law interests or invasion or disregard of interests protected by a governing
statute.
See
Sunstein,
Standing after
Lujan,
Warren, perhaps recognizing the restrictiveness of its standing decisions, applied a
“pragmatic and functional strain” of standing doctrine. Wright & Miller, 13A Fed.
Prac. & Proc. Juris. § 3531.1 (3d ed. 2020);
See
Sunstein,
Standing After
Lujan, 91
Mich. L. Rev. at 183 – 84 ; Hessick,
Standing, Injury in Fact, and Private Rights
, 93
Cornell L. Rev. at 292 – 93. After
Frothingham
and
Levitt
, the first Supreme Court
decision to address standing again in detail was
Baker v. Carr
,
A federal court cannot “pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.” Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.
Baker
,
¶ 45
case, including
Frothingham
or
Levitt
, but instead on the old principle requiring an
“actual controversy,” or, in the
Baker
Court’s term, “concrete adverseness.” In
Liverpool, N.Y. & P. Steamship
, the Court noted that it would not pass upon the
constitutionality of acts of Congress “as an abstract question” because “[t]hat is not
the mode in which this court is accustomed or willing to consider such questions.”
Liverpool, N.Y. & P. Steamship
,
concern for sharpening legal issues, nowhere does the Baker opinion suggest a need for “injury in fact.” To the contrary, the only injury asserted is the impairment of a constitutional right broadly shared and divorced from any “factual” harm experienced by the plaintiffs. See Winter, Metaphor , 40 Stan. L. Rev. at 1380 (describing the “voter’s interest in the relative weight of his or her vote” at issue in Baker as “a matter that is a purely legal construct dependent on one’s conceptualization of a properly wei ghted vote”). Toward the end of the Warren era, the Supreme Court again addressed
standing in the context of a taxpayer suit, attempting to resolve the dispute generated
by
Frothingham
about whether the prohibition against federal taxpayer standing was
an absolute constitutional bar or a prudential concern. In
Flast v. Cohen
,
The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has “a personal stake in the outcome of the controversy,” . . . and whether the dispute touches upon “the legal relations of parties having adverse legal interests.”
Id. at 100 – 01 (quoting Baker , 369 U.S. at 205). After announcing these broad principles, the Court introduced a test to determine whether there was sufficient personal stake in a taxpayer standing suit by requiring “a logical nexus between the status asserted and the claim sought to be adjudicated.” Id. at 102. In the context of a taxpayer suit, the taxpayer must show the challenged statute was an exercise of Congress’s power to tax and spend under Article I, § 8, and, if so, that the challenged enactment violates specific constitutional limitations on that power. In Flast , the Court held the expenditures were a result of the spending power and the Establishment Clause specifically limited the exercise of that power. Thus, there was standing. In contrast, the Court held, Frothingham lacked such a nexus. The “nexus test” announced in Flast has been much-criticized. Subsequently,
the Court has essentially confined its scope to analysis of taxpayer standing claims under the taxing and spending power of Article I, § 8. For our purposes, Flast is relevant for cementing the ‘pragmatic and functional strain’ of Baker ’s requirement for “concrete adverseness” and a sufficiently “personal stake in the outcome of the controversy,” and also for significantly limiting the apparently broad scope of Frothingham ’s prohibition against federal taxpayer standing in constitutional litigation. While Baker and Flast involved rights arising directly under the constitution,
this era also saw an expansion in standing based on rights created by statute. There
was, of course, general acceptance that an express conferral of standing by Congress
created a right to sue.
See McGrath
,
it decide that a private person could challenge any alleged violation of the public
interest. Instead, in
Association of Data Processing Service Organizations, Inc. v.
Camp
, 397 U.S. 150 (1970), the Supreme Court abandoned the legal interest test,
distinguishing it by reasoning that it “goes to the merits,” and unanimously held for
the first time that a plaintiff could challenge a government action by alleging “injury
in fact.”
¶ 51 Data Processing and the adoption of a pragmatic and functional approach to the question in Baker and Flast soon gave way to doctrinal change that tightened standing requirements and limited access to federal courts in the Burger era. In a series of cases addressing constitutional challenges to legislation, the Supreme Court reversed course on the pragmatic approach to standing, grounding it instead in separation of powers — a view it had expressly rejected in the prior era. See Flast , 392 U.S. at 100 (“[W]hether a particular person is a proper party to maintain the action does not, by its own force, raise separat ion of powers problems.”). In a pair of decisions handed down the same day, the Court held there was no
standing in a case alleging the failure to publish the CIA’s budget violated Article I,
§ 9, or in a challenge to the ability of members of Congress to simultaneously serve
in the Armed Forces Reserve under the incompatibility clause of Article I, § 6, cl. 2.
United States v. Richardson
,
¶ 53
grievances, making clear that “undifferentiated” or “abstract” rights under the
constitution were not sufficient to confer standing. Moreover, the Court continued to
change course on its earlier expansion of standing, emphasizing that the federal law
of standing was based not primarily on functional concerns about the adversary
presentation of the dispute, as indicated in
Baker
and
Flast
, but separation of powers,
see Allen v. Wright
,
E. Lujan and “ Injury in Fact ” to Date In 1992, with an opinion written by Justice Scalia, the Supreme Court
dramatically altered the law of standing in
Lujan v. Defenders of Wildlife
, 504 U.S.
555 (1992), when the Court held for the first time that plaintiffs had no standing to
bring suit under a congressio nal statute authorizing suit because they lacked “injury
in fact.” The plaintiffs had sued under the Endangered Species Act (ESA). Section 7
of the ESA requires the Secretary of the Interior to consult with other agencies when
agency projects threaten the existence of endangered plants and animals. 16 U.S.C.
§ 1536(a)(2) (2018). The Interior Department had originally construed that statute to
apply to actions within the United States, on the high seas, or in foreign nations.
Lujan
,
of standing at the federal level today, that as an “irreducible constitutional minimum” standing requires three elements:
First, the plaintiff must have suffered an “injury in fact”— an invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of —the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not bef ore the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Id. at 560 – 61 (citations omitted) (alterations in original). The Court applied this test and held the plaintiffs h ad failed to allege adequate “injury in fact.” Although the parties had a “cognizable interest” in “the desire to use or observe an animal species,” the particular plaintiffs (here, one or more of the organizations’ members) would not be “ ‘directly’ affected apart from their ‘ “special interest” in the subject.’ ” Id. at 563 (citations omitted). The Eighth Circuit Court of Appeals below had nevertheless held there was standing based upon the ESA’s “citizen - suit” provision granting “any person” a right to s ue to enforce the statute. Id. at 571 – 72 (quoting 16 U.S.C. § 1540(g)). The Supreme Court rejected this rationale, however, concluding that the interest conferred by the statute was merely a “conferral upon all persons of an abstract, self-contained, nonin strumental ‘right’ , ” id. at 573, and that it was merely a “generalized grievance , ” id. at 575. The Court summarized the generalized grievance caselaw including Frothingham , Levitt , Richardson , Schlesinger , and Valley Forge and applied the prohibition for the first time to bar standing for a claim that arose not under the Constitution, like every generalized grievance case before, but under a statutory cause of action created by Congress. Recognizing this novel path, the Court noted that “there is absolut ely no basis for making the Article III inquiry turn on the source of the asserted right,” and to do so “would be discarding . . . one of the essential elements that identifies those ‘Cases’ and ‘Controversies’ that are the business of the courts. . . .” Id. at 576. Thus, on the basis of the Case or Controversy requirement, the Court held plaintiffs lacked standing to sue in an action to vindicate the public interest in the effective enforcement of laws even where Congress expressly conferred standing to sue. Criticism of Lujan and the injury-in-fact requirement more broadly has been
widespread. First, it has been criticized most harshly for its inconsistency with the original meaning of the case or controversy requirement of Article III and, in particular, the long history in England and the United States of public actions brought by private plaintiffs, including those authorized under a statute, as summarized above. See generally Sunstein, Standing After Lujan, 91 Mich. L. Rev. 163; Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation , 42 Duke L.J. 1141, 1151 – 53 (1993). Second, the injury-in-fact test, which was introduced in Data Processing to expand access to the courts, was, according to the critics, perversely used instead to foreclose access to the judiciary under many statutory “citizen - action” provisions. Third, critics argue that despite its occasional statements to the contrary, in turning to “injury in fact,” the Co urt has undermined the separation of powers by invading the power of the legislature to create rights. See Hessick, Standing, Injury in Fact, and Private Rights , 93 Cornell L. Rev. 275 at 320 – - 21. Most strikingly, critics argue that the rule in Lujan could be applied to limit even indisputably private rights of action created by statute. Fifth, despite reflecting an attempt to objectify the law and separate standing analysis from a decision on the merits, the critics argue that the injury-in-fact test essentially imports assessment of the merits of the claim into the analysis sub rosa . Nichol, Rethinking Standing , 72 Cal. L. Rev. at 78. Finally, the critics argue that original concerns motivating standing doctrine —ensuring sufficient “concrete adverseness” to ensure efficient resolution of disputes — does not necessitate and is arguably impaired by the injury in fact requirement. In summary, the very notion of a standing requirement under Article III only
arose in the twentieth century. 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. For most of the twentieth century, standing existed where there was invasion of a legal right under the common law, a statute, or the Constitution. The Supreme Court long emphasized a functional and pragmatic approach to the question of s tanding, focused on “concrete adverseness,” generally limiting this concern to constitutional questions, and significantly expanded the categories of claims that could support standing. However, 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.
F. Standing Under North Carolina Law We must now determine whether our North Carolina Constitution, specifically
the “judicial power” provisions of Article IV, §§ 1 and 2, impose s a requirement for
“standing,” as well as a requirement for “injury -in-fact, ” to bring suit under a cause
of action which the General Assembly has expressly created. As an initial matter, we
have held that our Constitution, unlike the federal constitution, “is in no matter a
grant of power. All power which is not limited by the Constitution inheres in the
people . . . .”
McIntyre v. Clarkson
, 254 N.C. 510, 515 (1961) (quoting
Lassiter v.
Northampton Cty. Bd. of Elections
,
1. Does the North Carolina Constitution I mpose an “ Injury-in-F act” Requirement U nder the “ Judicial Power ” Provision? As noted, throughout the nineteenth century, the words “judicial power” in our
Constitution imposed no limitation on standing. Since 1776, North Carolina law contemplated that the writ of mandamus and an action in the nature of the writ of quo warranto were available without any showing of a personal stake in the litigation, continuing a legacy that originated in the earliest days of the common law. Against this backdrop, we conclude that neither the framers of the 1776 Constitution, which re cognized a judicial power to be kept “forever separate and distinct,” nor of the 1868 Constitution, which originated our present “judicial power” in its own Article, imposed a requirement of particular injury beyond a legal right at common law, by statute, or under the constitution itself. The only case we have identified in the nineteenth century imposing a standing-type justiciability doctrine as a constitutional requirement was the prohibition against collusive suits. See Blake v. Askew , 76 N.C. at 326 ( “If they were ever valid in this State, feigned issues are abolished by the Constitution, Art. 4, § 1.” ). Concerns about standing under North Carolina law arose in the context of suits
to enjoin legislation for violating the constitution; rather than in preventing parties
from getting in the courthouse door, these concerns addressed what arguments
parties may lodge once there. In
St. George v. Hardie
,
judicial power, a party was not entitled to injunctive relief as a matter of
substantive
law unless he would be irreparably harmed.
See Newman v. Watkins
,
¶ 62
limited to, “deprivation of a constitut ionally guaranteed personal right or an invasion
of his property rights.”
State ex rel. Summrell v. Carolina- Virginia Racing Ass’n
, 239
N.C. 591, 594 (1954);
see also Canteen Services v. Johnson, Comm’r of Revenue
, 256
N.C. 155, 166 (1962) (holding only pe rsons “who have been injuriously affected . . . in
their persons, property or constitutional rights” may challenge constitutionality of a
statute). Notably, unlike in federal court, taxpayer status has long served as a basis
for challenges alleging the unconstitutional or illegal disbursement of tax funds.
See
Goldston v. State
,
other words, that a person be “adversely affected” by a statute, which we have applied
as a substantive requirement to entitle a plaintiff to injunctive relief, is also a
constitutional requirement under the “judicial power” of Article IV, § 2 of our
Constitution. This requirement is, however, founded on a longstanding concern that
“[t]he courts never anticipate a question of constitutional law in ad vance of the
necessity of deciding it.”
Wood v. Braswell
,
constitutionality of a statute is based on the rationale “that only one with a genuine
grievance, one personally injured by a statute, can be trusted to battle the issue.”
Stanley v. Department of Conservation and Development
,
[t]he “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”
Id.
(quoting
Flast v. Cohen
,
Constitution is motivated by a pragmatic and functional concern with ensuring
“concrete adverseness” that “sharpens the presentation of issues” upon which we
depend, in contrast to the federal standing doctrine which is motivated by both
separation-of- powers and federalism concerns. We hold, therefore, that the “ concrete
adverseness” rationale undergirding our standing doctrine is grounded on prudential
principles of self-restraint in exercise of our power of judicial review for
constitutionality, which is itself only an incident of our exercise of the judicial power
to determine the law in particular cases.
See Bayard
,
a common law interest irrespective of any “actual” injury that may occur to her. For
instance, we have not dismissed trespass actions where there is no allegation of harm
beyond the infringement of the legal right.
See Keziah v. Seaboard Air Line R. Co.
,
272 N.C. 299, 311 (1968) (“Any unauthorized entry on land in the actual or
constructive possession of another constitutes a trespass,
irrespective of degree of force
used or whether actual damages is done
.” (emphasis added));
see also Hildebrand v.
.
Southern Bell
, 219 N.C. 402, 408 (1941) (holding landowner “is entitled to be
protected as to that which is his without regard to its mone y value”). Indeed, “[s]uch
entry entitle[s] the aggrieved party to at least nominal damages.”
Keziah
, 272 N.C.
at 311. Actions for breach of contract can, in some circumstances, proceed on a theory
of nominal damages.
See, e.g., Bryan Builders Supply v. Midyette
,
perpetually enjoin, as a nuisance as defined by N.C.G.S. § 19- 1, the defendant’s
maintenance and use of certain premises, buildings, fixtures and machines, for the
Foods, Inc.
,
purpose of gambling.” Id. at 591. The defendant Racing Association was a private corporation granted a franchise as a result of an act of the General Assembly. Pursuant to that law, an election was held at which a majority of the voters participating voted in favor of a countywide Racing Commission. Id. To enforce its prohibition against the nuisances listed in § 19-1, the General Assembly chose to create a civil action at N.C.G.S. § 19-2, under which the plaintiff sued as relator, which provided as follows:
“Any citizen of the county may maintain a civil action in the name of the State of North Carolina upon the relation of such . . . citizen, to perpetually enjoin said nuisance, the person or persons conducting or maintaining the same, and the owner or agent of the building or ground upon which said nuisance exists.”
Id.
at 594 (quoting N.C.G.S. § 19-2 (1965)). The action created by the General
Assembly was plainly a “public action” as we discussed above—a “case[ ] in which a
plaintiff, in some fashion or other, asserts the public’s interest rather than just his
own —in an attempt to challenge the actions of the government or a private party.”
Gene R. Nichol, Jr.,
The Impossibility of
Lujan
’s Project
, 11 Duke Envtl. L. & Pol’y F.
193, 194 (2001). The plaintiff’s interest, even as recognized by the statute, was no
different than that of any other “citizen” of his county. It certainly could not be
contended to be “concrete” or “particularized.”
Lujan
,
to create causes of action and permit a plaintiff to recover in the absence of a traditional injury. In Bumpers v. Community Bank , 367 N.C. 81, 88 (2013), for instance, we held the General Assembly had authority to prohibit unfair and deceptive trade practices and to create a private cause of action in favor of a class of individuals to enforce this prohibition. In order to come within the class of persons protected by the statute the plaintiff must have been “injured by reason of any act or thing done by any other person, firm or corporation in violation of the provisions of this Chapter,” N.C.G.S. § 75 -16 (2011); however, “[t]his statute is broader and covers more than traditional common law proscriptions on tortious conduct, though fraud provide a basis for judicial review of the constitutionality of a legislative act where there was effectively no citizen standing, on the basis that the action was not grounded on equity, but statute. This bolsters our conclusion that standing is a prudential, not purely constitutional, restraint on this Court’s exercise of the “judicial power.”
and deceit tend to be included within its ambit.”
Bumpers
, 367 N.C. at 88. Thus,
North Carolina’s Unfair and Deceptive Trade Practices Act expanded the injury for
which a plaintiff could recover beyond the common law and the question of the
plaintiff’s standing was not even raised. In
Addison v. Britt
,
¶ 70 in Lending Act, our Court of Appeals concluded that “[o]nce a violation of an actionable portion of the [Truth in Lending Act] is established, the debtor is entitled to recover statutory damages [and that b]ecause the purpose of that section is to encourage private enforcement of the Act, proof of actual damages is unnecessary .” Id. at 421 (emphasis added). Thus, the civil action under the Truth in Lending Act reflects a “private attorney general” action, in the sense that Congress, to promote the purposes of the Act, has empowered private individuals to sue to vindicate the public interest and to recover based on the statutory damage formula, regardless of the damages actually accumulated. Furthermore, the Act did not require “that the debtors have been misled or deceived in any way.” Id. Thus, the Act authorized “any person [who] is liable to such [creditor failing to comply with the Act]” to recover under the Act, irrespective of actual injury resulting from infringement of the Act. See 15 U.S.C. § 1640(a) (1982). In summary, our courts have recognized the broad authority of the legislature
to create c auses of action, such as “citizen - suits” and “private attorney general
actions,” even where personal, factual injury did not previously exist, in order to
vindicate the public interest. In such cases, the relevant questions are only whether
the plaintiff has shown a relevant statute confers a cause of action and whether the
plaintiff satisfies the requirements to bring a claim under the statute. There is no
further constitutional requirement because the issue does not implicate the concerns
that motivate our standing doctrine.
See, e.g., Stanley
,
¶ 72 standing, we are finally in a position to determine whether, as EMPAC and the dissent below argue, the North Carolina Constitution imposes an “injury -in- fact” requirement, as under the federal constitution. While our Court of Appeals has previously come to that conclusion, which was followed by numerous panels of that court, see, e.g., Neuse River Foundation, Inc. v. Smithfield Foods, Inc. , 155 N.C. App. 110, 113 –15 (2002) (holding North Carolina law requires “injury in fact” for standing and applying Lujan ), we are not bound by those decisions and conclude our Constitution does not include such a requirement. First, the federal injury-in-fact requirement has no place in the text or history
of our Constitution. Our Constitution includes no case-or-controversy requirement, upon which the federal injury-in-fact requirement is based. Rather, as discussed above, the “judicial power” provision of our Constitution imposes no particular requirement regarding “standing” at all. Rather, as a rule of prudential self-restraint, we have held that, in order to assure the requisite “concrete adverseness” to address “difficult constitutional questions,” we have required a plaintiff to allege “direct injury” to invoke the judicial power to pass on the constitutionality of a legislative or executive act. See Stanley , 284 N.C. at 28. This standing principle arises as an incident of our power and duty to determine whether executive or legislative acts violate the constitution in the resolution of actual controversies. However, where a purely statutory or common law right is at issue, this rationale is not implicated, and a showing of direct injury beyond the impairment of the common law or statutory right is not required. Second, the injury-in-fact standard is inconsistent with the caselaw of this
Court. To be sure, our own decisions have not always maintained these distinctions
with exactitude — or avoided the doctrinal encumbrances which have attached to the
“slogans and litanies” of standing decisions as barnacles to the hull. Nichol,
Rethinking Standing
, 72 Cal. L. Rev. at 71.
Dunn v. Pate
, 334 N.C. 115 (1993),
provides a particularly instructive example. In that case, we held defendants seeking
to avoid having a 1962 deed set aside for failure to comply with a statute in effect at
the time, which required the clerk of court to make a private examination of a wife
whenever she and her husband entered into a contract to ensure the conveyance was
neither unreasonable nor injurious to the wife, had standing to challenge the statute
as unconstitutional when the conveyance at issue apparently did not comply with the
allegedly discriminatory (and since-repealed) statutory requirement.
Id.
at 117. On
the way to holding the defendants in question had standing to attack the
constitutionality of the private examination statute, however, we partially overruled
a prior Court of Appeals decision while noting the court “correctly stated that the
petitioner ‘must allege she has sustained an “injury in fact” as a direct result of the
st atute to have standing.’ ”
Id.
at 119 (quoting
Murphy v. Davis
,
River Foundation
was also based on our opinion in
Empire Power Co. v. North
Carolina Department of Environment, Health and Natural Resources (DEHNR)
, 337
N.C. 569 (1994). This case is particularly instructive, because it demonstrates how
words can assume unintended meanings in the arena of standing.
Empire Power Co.
involved a challenge brought under the North Carolina Administrative Procedure Act
(NCAPA), N.C.G.S. §§ 150B-1,
et seq.
(1991), and the Air Pollution Control Act
(APCA), N.C.G.S. §§ 143-215.105,
et seq.
(1993), appealing a decision of DEHNR
granting an air pollution control permit to a power company to the Office of
Administrative Hearings (OAH).
Empire Power Co.
,
2. Does the Remedy Clause of the North Carolina Constitution Impose an “ Injury-in-Fact ” Requirement? Finally, it might nevertheless be argued that the remedy clause of the North
Carolina Constitution imposes a factual injury requirement for standing. In this case,
the Court of Appeals, including both the majority and the dissent below, relied on our
statement in
Mangum v. Raleigh Board of Adjustment
,
standing to sue in such cases arises from the requirements of the statute which creates and confers the cause of action on certain persons, not the constitution. . Article I, section 18 of the North Carolina Constitution provides:
All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law ; and right and justice shall be administered without favor, denial, or delay.
N.C. Const. art. I, § 18 (emphasis added). This provision has ancient roots in English and American law. Our most contemporary treatise on the North Carolina Constitution identifies the protean origins of Article I, § 18 as a principle in Magna Carta : “ ‘ Nulli vendemus nulli negabimus aut differemus rectum vel justitiam ’ (‘To no one will we sell, to no one will we deny or delay ri ght or justice.’)” John V. Orth and Paul Martin Newby, The North Carolina State Constitution 65 (2d ed. 2013) (quoting Magna Carta, § 40 (1215)). The second clause of the open courts provision, commonly termed a “remedy clause,” stemmed not from the text o f Magna Carta, § 40 itself, but from Lord Edward Coke’s influential commentaries on the provision in his Institutes of the Laws of England. See Orth and Newby, The North Carolina State Constitution 66 (noting that Lord Coke’s commentaries pointed out that “[o]pen courts were not enough . . . ; they had to be righting wrongs and doing justice”) ; see generally David Schuman, The Right to a Remedy , 65 Temp. L. Rev. 1197 (1992) (describing the origin, history, and interpretation of remedy clauses). Lord Coke re asoned that, by implication, Magna Carta necessitated more than merely “open” courts: “And therefore every Subject of the Realm, for injury done to him in bonis , terries , vel persona [goods, lands, or person] . . . may take his remedy by the course of the Law . . . .” Orth and Newby, The North Carolina State Constitution 66 (quoting Edward Coke, Institutes of the Laws of England (London: Society of Stationers, 1641), vol. 2, 55 – 56). Prior to Mangum , we had never construed this provision to implicate standing.
¶ 78
Rather, we have focused on whether the legislature may restrain the remedies
available in certain ways. For instance, we have held the remedy clause of the open
courts provision permitted the legislature to abolish punitive damages for a libeled
plaintiff if a timely retraction was printed, however, we stated in dicta that abolishing
compensatory damages would have violated the clause.
Osborn v. Leach
, 135 N.C.
628, 639 – 40 (1904). Moreover, we have held the legislature does not violate the clause
by instituting a statute of repose, because the “the remedy constitutionally
guaranteed must be one that is legally cognizable,” and “[t] he legislature has the
power to define the circumstances under which a remedy is legally cognizable and
those under whi ch it is not.”
Lamb v. Wedgewood S. Corp.
,
pervaded the common law of England and in America is entirely distinct from the concept of “injury in fact” in modern caselaw, encompassing “injuries” which did not include factual harm. For instance, in his own Commentaries , Blackstone recognized the writs of mandamus and prohibition, discussed in detail above, “redressed the legal injuries of ‘refusal or neglect of justice’ and ‘encroachment of jurisdiction,’ respectively.” Winter, Metaphor , 40 Stan. L. Rev. at 1397 (quoting 3 William Blackstone, Commentaries *111).
The term ‘injury’ referred to ‘any infringement of the rights of another . . . for which an action lies at law.’ Legal injuries were conceptualized in terms of the experience of physical injury, but the former was not confused with the latter. It is only in this sense that there could be a notion of damnum absque injuria — that is, damage without cognizable legal injury.
Id. (footnotes omitted) (quoting 1 W. Jowitt, The Dictionary of English Law 977 (2d ed. 1977)). As Professor Hessick has noted,
[f]actual injury (damnum) alone was not sufficient to warrant judicial intervention; rather, a person could maintain a cause of action only if he suffered a legal injury, that is, the violation of a legal right (injuria). A factual harm without a legal injury was damnum absque injuria , and provided no basis for relief.
Hessick,
Standing, Injury in Fact, and Private Rights
,
The distinction between actions on for trespass [(which did not require factual harm)] and actions on the case [(which initially did)] began to collapse in the early eighteenth century as courts became resistant to denying relief to plaintiffs whose rights had been violated but who could not demonstrate harm. In the English case Ashby v. White , Chief Justice Holt rejected the notion that a plaintiff could not maintain an action on the case arising from the violation of a right if he suffered no harm. He explained that “[i]f the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.” Responding to the argument that an action on the case wa s “not maintainable because here is no hurt or damage to the plaintiff,” Chief Justice Holt argued that “surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right.” Regardless of the type of action, the violation of the right was what mattered.
Hessick,
Standing, Injury in Fact, and Private Rights
,
courts provision, derived from the common- law concept of “ injuria ,” means, at a minimum, the infringement of a legal right; not necessarily “injury in fact” or factual harm, derived from the contrary concept of “ damnum .” Taking the reme dy clause as a whole and in the context of this history, it cannot be understood to impose a limitation on the power of the courts to hear a claim, under the “injury in fact” test or otherwise. [50] For the same reason, the remedy clause cannot be understood to impose a limitation on the legislature’s power to create new legal rights. To the contrary, by its express terms, which provide that “every person for an injury done him . . . shall have remedy by due course of law,” to the extent it implicates the doctrine of standing, our remedy clause should be understood as guaranteeing standing to sue in our courts where a legal right at common law, by statute, or arising under the North Carolina Constitution has been infringed. N.C. Const. Art. I, § 18, cl. 2 (emphasis added).
G. The Law of Standing in North Carolina Summarized
In summary, the “judicial power” under the North Carolina Constitution is
plenary, and “[e]xcept as expressly limited by the constitution, the inherent power of
the judicial branch of government continues.”
Beard v. North Carolina State Bar
, 320
N.C. 126, 129 (1987). As an exercise of the judicial power entrusted in us by the people
of North Carolina in our Constitution, we have the power and duty to determine the
law in particular cases and, as a necessary incident of that duty, the power to conduct
judicial review of executive and legislative actions for constitutionality when
necessary to resolve a case.
Bayard
, 1 N.C. (Mart.) at 6 – 7. We have held that, in
directly attacking the validity of a statute under the constitution, a party must show
injury,” and has applied the standing principle of federal law, including
Lujan
.
Texas Ass’n
of Business v. Texas Air Control Bd.
,
they suffered a “direct injury.”
Summrell
,
“ ‘[t]he “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. ’ ”
Goldston
,
H. Standing under the Disclosure Statute Having followed the tortuous track through the thorny thicket of standing that
brought us here, applying the law is simple. The Committee has alleged EMPAC violated the requirements of the Disclosure Statute. Part of the Disclosure Statute creates a cause of action permitting the candidate targeted by the illegal ad to enforce the regulations by bringing suit and establishing statutory damages he can seek. This provision is one of many where our General Assembly has provided for such private enforcement. The record indicates the Committee has complied with the requirements of the Disclosure Statute. The Committee clearly falls under the class of persons on whom the Disclosure
Statute confers a cause of action. Mr. Forest was the candidate against whom the ad below was run. He has assigned his interest in the case to his Committee. EMPAC contends that the Committee lacks standing because it cannot show “injury in fact” under Lujan . But, as discussed above, that is not the law of North Carolina. Under North Carolina law, the legislature may create causes of action, including “private attorney general actions” to vindicate even a purely public harm. Our requirement for a “direct injury” in cases wher e the plaintiff attacks the validity of a statute under the constitution does not apply here. Where the plaintiff has suffered infringement of a legal right arising under a statute that confers on a class of persons including the plaintiff a cause of action, and the plaintiff has satisfied the requirements of the statute, the plaintiff has shown standing under the North Carolina Constitution. Here, the Committee has standing based on the statutory cause of action created by the Disclosure Statute.
IV. Conclusion 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. 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. 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. The North Carolina Constitution confers standing to sue in our courts on those who suffer the infringement of a legal right, because “e very person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law .” N.C. Const. art. I, § 18, cl. 2.
AFFIRMED IN PART; DISRECTIONARY REVIEW IMPROVIDENTLY ALLOWED IN PART.
Justices BERGER and BARRINGER did not participate in the consideration or decision of this case.
*85 Chief Justice NEWBY concurring in the result. I agree with the result reached by the majority. Nonetheless, I write separately
¶ 86 because I differ in the rationale. A system of fair elections is foundational to self- government. Our state constitution acknowledges this principle and allows the General Assembly broad authority to enact laws to protect the integrity of elections and thus encourage public trust and confidence in the election process. Under that authority, the General Assemb ly enacted a “stand by your ad” law in 1999, requiring political ads to contain particular information it deemed necessary to inform the public of the ad sponsor. A nonconforming ad provides inadequate information, thus harming the public generally and an affected candidate specifically. Part of that statute allowed a candidate affected by the illegal ad to enforce the regulations by bringing suit and established statutory damages he or she could seek. This provision is one of many where our General Assembly has provided for such private enforcement. Misinformation harms the public, particularly when the misinformation
concerns candidates for elected office. Indeed, the North Carolina Constitution recognizes the people’s right to free elections, N.C. Const. art. I, § 10, which means that elections must be free from “interference,” John V. Orth & Paul Martin Newby, The North Carolina State Constitution 56 (2d ed. 2013). The General Assembly, under its constitutional mandate to protect fair play in elections, addressed the generally
2021-NCSC-6
Newby, C.J., concurring in the result
recognized threat that improper advertising poses to that goal.
See, e.g.
,
Citizens
United v. FEC
,
penalty for intentional violations of disclosure laws.
See Friends of Joe Sam Queen v.
Ralph Hise for N.C. Senate
,
2021-NCSC-6
Newby, C.J., concurring in the result Specifically, the General Assembly provided that when any entity creates a
¶ 89 political campaign ad that violates certain disclosure requirements, the candidate affected by the unlawful ad “ shall have a monetary remedy in a civil action against” the violator. N.C.G.S. § 163-278.39A(f) (2011) (emphasis added) (repealed 2014). The injuries to the public, to the election process, and to the individual candidate are hard to quantify: what is the monetary value of misleading information that may affect an election? The General Assembly thus provided for statutory damages. That monetary remedy is, according to the statute, equal to the amount the violating party spent to broadcast the unlawful ad. N.C.G.S. § 163-278.39A(f)(2). Only those candidates who have not violated any of the statutory provisions themselves may sue. N.C.G.S. § 163-278.39A(f). The candidate must file a notice of the complaint with the Board of Elections by the Friday following Election Tuesday. N.C.G.S. § 163-278.39A(f)(1). By the language of the statute, the General Assembly has decided that a candidate who complies with these requirements and shows a violation is entitled to statutory damages. Plaintiff here has complied with all the statutory requirements. First, there is
no evidence that plaintiff has violated any disclosure requirement; plaintiff has clean hands, as the General Assembly required. Next, both defendant and the Board of Elections received notice of the violation within the statutory period. Thus, sufficient evidence exists to show that plaintiff complied with any condition precedent to suing.
2021-NCSC-6
Newby, C.J., concurring in the result
There is no dispute that plaintiff’s complaint precisely tracks the requirements of the statute. The only remaining question, then, is whether subsection 163-278.39A(f) is
¶ 91 enforceable as written; in other words, is the statute constitutional? It is. Here the General Assembly used its longstanding constitutional authority to create causes of action like this one. All political power resides in the people, N.C. Const. art. I, § 2, and the people
act through the General Assembly.
State ex rel. Ewart v. Jones,
2021-NCSC-6
Newby, C.J., concurring in the result
power must be express and demonstrated beyond a reasonable doubt.
E.g., Hart v.
State,
¶ 93
authority to recognize threats to the public good, identify an injury, and provide for
the appropriate remedy. A statute may create a private cause of action even if the
common law would not provide that right.
See Rhyne v. K-Mart Corp.
,
Private attorney general actions allow nongovernmental actors to enforce laws. These
actions are integral to the well- being of this State’s citizens. They are often used when
the harm is to the public generally and is difficult to quantify. Such a statute by its
own accord recognizes that an injury has occurred and allows a specified party to sue
for recovery.
See, e.g.
,
Mayton v. Hiatt’s Used Cars, Inc.
,
2021-NCSC-6
Newby, C.J., concurring in the result
general, the action usually must address a right that is important to the public
interest and provide for private enforcement.
See, e.g.
,
Stephenson v. Bartlett
, 177
N.C. App. 239, 244,
¶ 95 mechanism like the one in this case in several other statutes. For example, North Carolina’s Open Meetings Law, which requires certain government meetings to be open to the public, allows for such suits. It says that “ [a] ny person” may bring a suit for an injunction to force the government entity to comply with the law, and “the plaintiff need not allege or prove special damage different from that suffered by the public at large.” N.C.G.S. § 143 -318.16A(a) (2019). The law allows the plaintiff to be awarded attorney’s fees upon prevailing in such a suit. N.C.G.S. § 143-318.16B (2019). Some laws go even further, mirroring the statute in this case, by providing for
specified statutory damages without requiring the plaintiff to prove actual injury. See N.C.G.S. § 75- 56(b) (2019) (“Any debt collector who fails to comply with any provision of this Article with respect to any person is liable to such person in a private action in an amount equal to the sum of (i) any actual damage sustained by such person as a result of such failure and (ii) civil penalties the court may allow, but not less than
2021-NCSC-6
Newby, C.J., concurring in the result
five hundred dollars ($500.00) nor greater than four thousand dollars ($4,000) for each violation.”); see also N.C.G.S. § 75-118(a)(2) (2019) (providing that any recipient of an unsolicited facsimile may bring a suit to recover “five hundred dollars ($500.00) for the first violation, one thousand dollars ($1,000) for the second violation, and five thousand dollars ($5,000) for the third and any other violation that occurs within two years of the first violation”). The General Assembly has therefore used its constitutional authority to recognize public injuries, declare an appropriate plaintiff, and fashion a proper remedy on several occasions, including in this case. Private attorney general actions with statutory damages serve to vindicate the
¶ 97 rights of an injured public when harm is hard to quantify. The General Assembly, within its constitutional authority, provided for such a cause of action and such damages in this case. Plaintiff has the right to sue under this statute, and neither the North Carolina Constitution nor this Court’s precedent limit courts from hearing the case. I respectfully concur in the result.
Notes
[1] We also hold that discretionary review was improvidently allowed as to the additional issue.
[2] N.C.G.S. § 163-278.39A was repealed by the General Assembly effective 1 January 2014. Session Law 2013-381, § 44.1.
[3] A subsection of this section provided that, as a condition precedent to bringing suit under the statute, the complaining party must file a notice with the State Board of Elections or a county board of elections (for statewide and nonstatewide candidates, respectively) “after the airing of the advertisement but no later than the first Friday after the Tuesday on which the election occurred.” N.C.G.S. § 163-278.39A(f)(1). The other subsections provided a formula for calculating damages, including treble damages in certain circumstances, and shifted attorneys’ fees to a party found to be in violation of the statute. Id. §§ 163- 278.39A(f)(2), (3).
[4] In order to preserve a claim under the Disclosure Statute, the Committee was required to file a Notice of Complaint with the State Board of Elections within a certain time period after the election. N.C.G.S. § 163-278.39A(f)(1) (2011). While the Forest Committee presented evidence that it had filed such a notice in a timely manner, the notice contained only the allegation of the incorrectly-sized picture, not the allegation relating to the identity of the disclosing individual. As a result, the Committee has not preserved the claim that this aspect of the Disclosure Statute was violated.
[5] We note it is not clear from the trial court’s wording whether by this rationale it meant that plaintiff had not suffered injury sufficient to give it standing to sue or that the damage award imposed by the statute was constitutionally excessive without a showing of “actual demonstrable damages.” The parties and the Court of Appeals addressed both of these arguments on appeal, so both arguments are preserved.
[6] U.S. Const., Art. III, sec. 2.
[7] We note, as Chief Judge McGee did in dissent below, our Court of Appeals has
previously decided that in some circumstances the federal standing requirements also apply
to North Carolina law.
See, e.g., Neuse River Foundation, Inc. v. Smithfield Foods, Inc.
, 155
N.C. App. 110, 113 – 15 (2002);
Coker v. DaimlerChrysler Corp.
,
[8] Indeed, the term “standing” is of relatively recent vintage.
See
Joseph Vining,
Legal
Identity: The Coming of Age of Public Law
55 (1978) (“The word
standing
is rather recent in
the basic judicial vocabulary and does not appear to have been commonly used until the
middle of our own century. No authority that I have found introduces the term with proper
explanations and apologies and announces that henceforth
standing
should be used to
describe who may be heard by a judge. Nor was there any sudden adoption by tacit consent.
The word appears here and there, spreading very gradually with no discernible pattern.
Judges and lawyers found themselves using the term and did not ask why they did so or
where it came from.”). One scholar’s search locates the United States Supreme Court’s first
use of the term “standing” as an Article III limitation in
Stark v. Wickard
, 321 U.S. 288
(1944).
See
Cass R. Sunstein,
What’s Standing After
Lujan
? Of Citizen Suits, “Injuries,” and
Article III
, 91 Mich. L. Rev. 163, 169 (1992);
see also id.
(“The explosion of judicial interest in
standing as a distinct body of constitutional law is an extraordinarily recent phenomenon.”).
Another scholar identifies the first use of the term in this sense by a justice of that court in
Coleman v. Miller
,
[9] Although the Constitution of 1776 did not include this provision, it did provide for the appointment of judges to the “Supreme Court of Law and Equity” by the General Assembly, and the Declaration of Rights enacted at that time included the familiar constitutional touchstone “[t]hat the l egislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other.” N.C. Const. of 1776, Declaration of Rights, § IV (1776).
[10] We are not the first state supreme court to plough the fields of English common law as it pertains to standing under state constitutions. See, e.g., Couey v. Atkins ,357 Or. 460 (2015).
[11] The prerogative writ of certiorari was the antecedent of this Court’s own writ of
certiorari.
See
N.C. R. App. P. 21;
see also
N.C. Const. art. IV, § 12 (“the [Supreme] Court
may issue any remedial writs necessary to give it general supervision and control over the
proceedings of the other courts.”). As used by the King’s Bench, however, it had a narrower
function, generally reviewing the decisions of lower courts only for exceeding their
jurisdiction in particular cases. Daniel R. Coquillette,
The Anglo-American Legal Heritage
248 (1999). However, the writ was also used to regulate administrative agencies performing
judicial functions.
See
Berger,
Standing to Sue
,
[12] Prohibition was “[a]n extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a nonjudicial officer or entity from exercising a power.” “Prohibition,” Black’s Law Dictionary (11th ed. 2019). “The writ is so ancient that forms of it are given in Glanville . . . , the first book of English law, written in the year 1189.” Forrest G. Ferris & Forrest G. Ferris, Jr., The Law of Extraordinary Legal Remedies 414 – 15 (1926). Like the writs of certiorari and mandamus, it persists today. See N.C. R. App. P. 22.
[13] Professor Raoul Berger makes the following observation regarding this passage: “No
English court, so far as I can discover, has ever rejected the authority of
Articulo Cleri
or
denied that a writ of prohibition may be granted at the suit of a stranger. On the contrary,
Coke was cited by the 18 th century Abridgments and by English courts throughout the 19 th century, and his rule remains the law in England today. Thus, at the time of the [American]
Revolution, the ‘courts in Westminster’ afforded to a stranger a means of attack on
jurisdictional excesses without requiring a showing of injury to his personal interest.” Berger,
Standing to Sue
,
[14] In Arthur v. Commissioners of Sewers , 88 Eng. Rep. 237 (K.B. 1725), for instance, the King’s Bench distinguished between a party with a personal stake and “one wh o comes merely as a stranger,” in determining whether the remedy of a writ of certiorari was mandatory or merely discretionary.
[15] Mandamus being then, as now, “[a] writ issued by a court to compel performance of
a particular act by a lower court or a gover nmental officer or body[.]” “Mandamus,” Black’s
Law Dictionary (11th ed. 2019);
see Sutton v. Figgatt
,
[16] Lord Coke’s rationale for the assertion of jurisdiction through mandamus is, as further discussed below, an exposition of Magna Carta that two-and-a-half centuries later
[19]
See also Martin v. Trout
,
[20]
See
Jaffe,
Standing to Secure
,
[21] Although this Court did not address what, if any, interest the relator must have to
invoke the court’s jurisdiction, William J. Gaston, who would become a justice of this Court,
was one of the trustees and is reported to have argued before the Court that North Carolina
law permitted a writ of mandamus filed by a relator in the absence of a personal interest to
vindicate the public’s interest.
[22] Although this Court limited the class of persons who could bring the action to
citizens or taxpayers as opposed to “mere strangers,” this was a matter of statutory, rather
than constitutional, interpretation. This Court later cited
Hall
in dismissing a complaint
brought by a relator under the statute for failing to allege as a matter of substantive law
under the relevant code section that he was a citizen or taxpayer of the county and thus did
not show he was a “party in interest” under the Code of Civil Procedure.
State ex rel. Hines
v. Vann
,
[23] Standing is not the only modern “justiciability” doctrine not located in the North
Carolina Constitution in the nineteenth century. For instance, despite the lack of statutory
or common law authority, this Court at times has approved of courts in equity advising
trustees as to the discharge of trusts.
See, e.g., Simpson v. Wallace
,
[24] One might query whether this digression is necessary. As the law of standing evolved essentially and originally as a matter of federal law in the twentieth century, and our courts have on certain occasions turned to federal law to apply standing under our own laws, we believe it is. See Wright & Miller, 13A Fed. Prac. & Proc. Juris. § 3531.1 (3d ed. 2020) (“As academic as the history may seem, it serves vitally important purposes. Current standing law is an incredibly rich tapestry woven from all the strands that have been twisted by the wheels of time. No single approach has become finally dominant; none has gone to eternal rest. Workaday answers to many specific questions can be found in some areas, but other questions can be argued and answered only with full knowledge of the intellectual heritage.”). It is particularly necessary to understand the odd federal “strands twisted” into the fabric of the law of North Carolina.
[25] The political question doctrine, another justiciability doctrine, has its roots in part in Article III, but also in the “textually demonstrable constitutional commitment” of certain questions to the other “political departments” by other parts of the Constitution’s text, see, e.g., Nixon v. United States , 506 U.S . 224, 229 (1993) (holding nonjusticiable Senate’s impeachment proceedings due to Article I’s provision that Senate has “sole Power to try all Impeachments”), and prudential considerations regarding the appropriate role of federal courts in the federal constitutional schema. See Baker v. Carr ,369 U.S. 186 , 217 (1962).
[26] See F. Andrew Hessick, Standing, Injury in Fact, and Private Rights , 93 Cornell L. Rev. 275, 278 (2008) (quoting 2 Records of the Federal Conventions of 1787 at 430 (Max Farrand ed., rev. ed. 1966)).
[27] As several commentators have noted, in a pair of decisions, Justice Frankfurter
attempted to ground the new standing requirements in the historical practice of the “courts
at Westminster,” even though these requirements are essentially incons istent with the
history summarized above.
See, e.g.,
Sunstein,
Standing After
Lujan,
[28] Although as Professor Sunstein notes the direct cause of action arising under the
constitution recognized in
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics
,
[29] The Supreme Court’s first dismissal under this rationale was decided a year before in an opinion authored by Justice Brandeis. See Fairchild v. Hughes , 258 U.S. 126 (1922) (“Plaintiffs alleged interest [as a taxpayer] in the question submitted is not such as to afford a basis for this proceeding.”). See Winter, Metaphor , 40 Stan. L.R. at 1376.
[30] The clause in question provides that “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which . . . the Emoluments whereof shall have been [i]ncreased during such
[33]
See, e.g.
,
United States v. Richardson
,
[34] Although, notably, Flast was not discussed.
[35]
See Spokeo
,
[36] Notably, the Supreme Court has largely jettisoned
Baker
’s concrete adverseness
rationale.
See Lewis v. Casey
,
[37] Other states have reco gnized the “plenary” nature of their judicial power under
state constitutions.
See, e.g., Couey
,
[38] This Court has also cited
Ex parte Levitt
for a near-identical proposition.
See Turner
v. City of Reidsville
,
[39] This is not the only vital question of justiciability we have recognized is a matter of
prudential self-restraint. In
In re Peoples
, we recognized that while “[i]n federal the mootness
doctrine is grounded primarily in the ‘case or controversy’ requirement of Article III, Section
2 of the United States Constitution and has been labeled ‘jurisdictional’ by the United States
Supreme Court . . . [i]n state courts [including North Carolina] the exclusion of moot
questions from determination is not based on a lack of jurisdiction but rather represents a
form of judicial r estraint.”
In re Peoples
,
[40] In the context of an action challenging the constitutionality of a legislative or executive action, we emphasize the requirement for “direct injury” or that the complaining party be “adversely affected” by the action does not incorporate the “injury -in- fact” requirement of federal law. As discussed in detail above, that test arose in 1970 in the context of an interpretation of a provision of the federal APA; whatever its merits as a requirement of the federal constitution, it has no connection to the text or history of our state constitutional provisions or the doctrines we have developed in accordance with them.
[41] As the Court of Appeals below noted, “[i]f EMPAC had
slandered
Mr. Forest in its
political ad, Mr. Forest would have had standing to seek at least nominal damages for this
tort, even though he won the election.”
See Comm. to Elect Dan Forest
,
[42] One possible exception is the private action for common law public nuisance, but while our courts have sometimes characterized the requirement of a showing of special damages or invasion of a right not considered merged in the general public right in such an action as a require ment for “standing,” see, e.g., Neuse River Foundation, Inc. v. Smithfield
[43] It is worth noting, though not strictly necessary to our present purposes, that the constitutionality of the act authorizing the commission was implicitly at issue in the claim because, if the act was valid, the plaintiff could not prevail on his substantive nuisance claim. Thus, this Court recognized, in this instance at least, that a statutory cause of action could
[44] To the extent the Court of Appeals’ opinion in
Neuse River Foundation, Inc. v.
Smithfield Foods, Inc.
,
[45] As an initial matter, we note that we did not impose a constitutional requirement
of “injury -in- fact” in
Mangum
; rather, we held only that, where a petitioner files an action in
the nature of certiorari to challenge a quasi-judicial decision under a zoning ordinance based
on standing conferred under 160A-393(d)(2) (2019) (recodified at N.C.G.S. § 160D-1402(c)(2)),
the petitioner must have alleged “special damages” to maintain the action and the allegations
of the petitioner there were sufficient in that regard.
See Mangum
,
[46] In Lamb , we expressly reserved the question whether “the legislature may constitutionally abolish altogether a commo n law cause of action.” Id. at 444.
[47] As Professor Winter notes, “if Blackstone’s definitions of these ‘injuries’ sound strange to modern ears, it is because today’s jurisprudence treats ‘injury -in- fact’ in literalist terms. But the common law usage of the term ‘injury’ was plainly metaphoric.” Id. at 1397.
[48] “Although Chief Justice Holt’s opinion was in dissent, his judgment prevailed on
appeal in the House of Lords. By the nineteenth century, both England and the United States
regarded Chief Justice Holt’ s view as correctly stating the law .” Hessick
, Standing, Injury in
Fact, and Private Rights
,
[49] Lord Holt’s rule in Ashby was well-established in North Carolina by 1855, prior to the 1868 Convention. See, e.g., Bond v. Hilton , 47 N.C. (2 Jones) 149, 150 – 51 (1855) (per curiam) (“Wherever there is a breach of an agreement, or the invasion of a right, the law infers some damage, and if no evidence is given of any particular amount of loss, it gives nominal damages, by way of declaring the right, upon the maxim, ubi jus ibi remedium .” (citing Ashby v. White , 1st Salk. 19)).
[50] Thirty-nine state constitutions have remedy clause provisions identical or similar
to ours.
See
Schuman,
The Right to a Remedy
,
[51] Showing a party falls within the class of persons on whom the statute confers a
cause of action may require a showing of some special injury depending on the statutory
terms. For instance, our zoning statutes confer standing to maintain a cause of action in the
nature of certiorari appealing a quasi-judicial zoning action on certain classes of persons,
including “person[s] who will suffer special damages as the resu lt of the decision being
appealed.” N.C.G.S. § 160D -1402(c)(2) (Supp. 2 2020);
see Mangum
, 362 N.C. at 644. In
certain cases, a cause of action may be implied from the statutory scheme. For example, to
be entitled to administrative hearing under the NCAPA, a petitioner must show they are a
“party aggrieved” by agency action, but where the unde rlying organic statute does not
expressly create a right to a hearing, we have nevertheless held that those who “alleged
sufficient injury in fact to interests within the zone of those to be protected and regulated by
the [underlying] statute,” would have a right to an administrative hearing under the NCAPA
as a “person aggrieved.”
Empire Power Co.
,
[52] EMPAC and the dissent below argued that the Committee did not comply with the “condition precedent” of the Disclosure Statute. We disagree an d hold the Committee has satisfied this condition precedent for the reasons stated in the majority opinion below.
[53] We originally granted EMPAC’s petition for discretionary review on the constitutionality of the Disclosure Statute. We decline to address that issue here.