The Volokh Conspiracy
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Our fourth post explained that providers and advocates will have to raise their constitutional challenges to SB8 in a defensive posture in state court after being sued by a claimant for violating SB8. But before addressing defensive federal constitutional provisions, a preliminary state-law matter should be considered: standing for an SB8 claim.
An SB8 "any person" claimant, as discussed in our last post, will not have standing in federal court. But state courts may develop unique standing doctrines outside the "case or controversy" limits of Article III.
Although the Texas Supreme Court often states that it follows the more extensive federal jurisprudence on standing, the court has declined to follow federal principles in certain contexts. Taxpayer standing is one example, and statutory standing is another example. We agree with others that an SB8 claimant should not have standing in state court, but the analysis is more nuanced than simply relying on Texas Supreme Court statements that it follows federal jurisprudence.
In Texas Association of Business v. Texas Air Control Board, the Texas Supreme Court grounded standing doctrines in the Texas Constitution's explicit separation-of-powers provision and the implicit requirement in the state's open-courts provision that each litigant seeking access to the courts must suffer an injury. As under the U.S. Constitution, state separation-of-powers principles preclude the judiciary from exercising governmental authority vested in other government departments, explaining the state judiciary's refusal to issue advisory opinions when that power is vested in the executive branch. While the Texas Constitution does not contain Article III's "cases or controversies" limitation, the court continued that a similar requirement was "implicit" in the Texas Constitution's open-courts requirement, which authorizes "remedy by due course of law" for "an injury."
Since TAB, the Texas Supreme Court has incorporated most familiar federal standing principles. The court employs the federal Lujan v. Defenders of Wildlife three-prong requirement of injury-in-fact, causation, and redressability for most standing questions and emphasizes twin constitutional principles of separation of powers and open courts.
But before TAB, the court had held that the legislature could confer statutory standing on individuals without a particularized individual injury that differentiates them from the public at large. In Spence v. Fenchler (1915), the Texas Supreme Court allowed litigants to maintain an action under a statute authorizing the state attorney general, local prosecutors, or "any citizen" to enjoin the operation of a "bawdy or disorderly house," without the citizen having "to show that he is personally injured by the actions complained of." Under the express language of the statute, the private plaintiffs' failure to allege any specific damages to their person or property did not render their pleading defective. Fifty years later, Scott v. Board of Adjustment upheld standing under a statute authorizing "any taxpayer" to file suit to challenge the legality of a zoning board's decision, such as granting a variance to allow the erection of a large sign.
Although the Texas Supreme Court has not issued a holding on statutory standing since TAB, it has expressed in dicta several times that statutory standing works an exception to the typical rule requiring a particularized injury caused by the defendant. Texas appellate courts have followed such dicta and approved legislatively conferred standing, including permitting "any taxpayer" to enjoin a contract awarded illegally or allowing "a citizen" to enjoin certain statutory violations.
But these cases do not support standing for "any person" to bring suit under SB8. The legislature in these cases authorized state citizens or taxpayers to check government officials by suing a government board or official to ensure compliance with a statutory enactment cabining the government's authority. Alternatively, statutes authorized private citizens to act when government officials failed to act. The statute allowing private suits against bawdy houses had a government-checking function with respect to a public nuisance—the statute authorized private suits because elected officials failed to enforce the law against such places of ill repute, whether because of bribery or because officials were partaking of the services provided.
SB8 does not authorize "any person" to check government officials—it makes private individuals the sole enforcement mechanism, offering these private individuals a monetary bounty to act as the government and in the government's stead. That exclusive delegation creates a new species of state statutory standing, beyond anything Texas courts have allowed.
In rejecting statutory standing in Lujan under Article III, the Supreme Court held that private enforcement interfered with the President's essential constitutional duty to "take care that the Laws be faithfully executed." In contrast, the executive power under the Texas Constitution is not vested in a single office but shared among various state and local executive officials; the governor lacks power to act alone to remove such officers for failing to faithfully execute the laws. Relying on private individuals to check the discretion of government officers is defensible under Texas separation-of-powers principles because private enforcement enlists the citizenry to do what the governor cannot.
But SB8 defies these state separation-of-powers principles by eliminating the enforcement authority of all state and local officials. Deputizing private individuals as sole enforcers of state law incentivizes ideological plaintiffs to proceed without the checks constraining government officials. The Texas Supreme Court has cautioned against legislative delegation of unchecked powers to private individuals in other contexts, holding legislative delegations of authority to private individuals without adequate safeguards violate the state constitution.
Additionally, unlike in prior cases upholding citizen or taxpayer standing, SB8 claimants suing as "any person" have no harm that can satisfy the "injury" requirement of the state constitution's open-courts guarantee. The plaintiffs in all the prior cases suffered at least a generalized (even if not particularized) potential financial harm—whether from the public nuisance of a neighborhood bawdy house, from a sign obstruction, or from an illegal expenditure of county funds—that injunctive relief redressed. In contrast, SB8's prohibition on claimants recovering the statutory damage award for a prohibited abortion if someone else has already recovered for that abortion is a state recognition that SB8 claimants are not suffering any injury that needs to be compensated. This is not a sufficient "injury" to satisfy the state's open-courts provision.
If state courts nevertheless do determine the statutory grant is sufficient to establish standing, the next consideration is raising the federal defenses in the suit despite the provisions in SB8 purporting to limit the availability of these defenses. Our next post addresses this issue.