THERE OUGHT TO BE A LAW: It’s standing-room only at the seat of justice

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Based on a couple of recent Indiana cases, it seems someone has parked a “No standing” zone around the Seventh Circuit Court of Appeals.

The first case involved Indiana Right to Life and its judicial candidate questionnaires. The group claimed two provisions of the Indiana Code of Judicial Conduct violated the First Amendment by preventing judicial candidates from answering questions about topics such as abortion and other social issues. Although a federal district court judge agreed with the group’s arguments, the Seventh Circuit held that Right to Life had no right to sue, and tossed the case out of court.

And my liberal friends cheered the result.

Then, four days later, the appeals court took up the second case, the so-called legislative prayer case. A group of plaintiffs had convinced a federal district court judge that the Indiana General Assembly’s practice of allowing overtly sectarian supplications also violated the First Amendment. The Seventh Circuit, which art in Chicago, held that the plaintiffs’ case didn’t have a prayer after all, and bounced them out of court.

And my conservative friends all said, “Amen.”

Now frankly, all this cheering and praising is kind of silly, because the appellate court didn’t rule on the merits of either case. The judges didn’t decide judicial questionnaires were bad or legislative prayers were good.

Instead, the judgments were set aside because the court decided the wrong people had filed the lawsuits. And if that strikes you as an odd outcome, let me introduce you to the delightfully arcane legal doctrine known as “standing.”

Of course, I’m not talking about “standing” in the sense of what you’re supposed to do when the judge enters the courtroom. Different concept. No, I’m talking about a threshold jurisdictional requirement rooted in the “cases and controversy” clause of Article III of the U.S. Constitution.

Oh, so why didn’t I just say so in the first place, right?

You might recall from some boring cocktail party chat with a litigator that federal courts are considered “courts of limited jurisdiction.” Although the founders were big fans of the whole checks and balances thing among the three branches of government, they were also a bit concerned about letting the federal judiciary run amok.

So, in Article III, the founders provided that judges could decide only actual cases and controversies. That meant the courts couldn’t go around issuing advisory opinions that second-guessed or struck down the actions of Congress or the president.

Well, what do you need to have a good, old-fashioned case or controversy? For starters, you need to have a plaintiff who’s actually been harmed by whatever the person is complaining about. But it’s not quite that simple, because that doesn’t answer the real question: How harmed must you be to be harmed enough to sue?

The recent jurisprudence on this point can be reduced to these layman’s terms:You pretty much have to be smacked upside the head before you can complain about the guy swinging the 2-by-4. And that was the problem for our erstwhile plaintiffs, in the Seventh Circuit’s view: too much complaining, not enough head smacking.

Indiana Right to Life claimed the Judicial Code inhibited judicial candidates from answering the group’s survey. Problem was, the group couldn’t find any actual candidates who were afraid to respond because of the code. Indiana Right to Life claimed it had standing because it had a constitutional “right to listen,” but that argument fell on deaf ears at the Seventh Circuit-the group couldn’t prove anyone was willing to talk to its members.

The prayer case ruling is a bit different. See, those plaintiffs invoked what’s known as “taxpayer standing,” a doctrine in which people claim a right to sue the government for spending tax dollars on unconstitutional activities. Being an angry taxpayer might work for you in a mayoral election, but it won’t get you in the front door of the federal courthouse anymore.

Well, who can challenge this practice? Probably a legislator, a staffer or someone else who has no choice but to be in the legislative chamber during the altar call. In other words, unless you’re standing in the premises while they’re singing “Standing on the Promises,” you’re pretty much throwing a Hail Mary if you think you can make a federal case out of it.

So the next time the government does something to tick you off-oh, and we all know there will be a next time-you’ll have to channel that anger into something other than your lawyer’s office. Because the courts are playing by playground rules now: no harm, no file.

Gifford is a partner at the law firm of Baker & Daniels in Indianapolis. His column appears monthly. This article is provided for general information purposes only and should not be regarded as legal advice for any particular situation. Gifford can be reached at 237-1409 or at

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