Robbins: The legal concept of standing (column) |

Robbins: The legal concept of standing (column)

Rohn Robbins
Vail Law

You’ve got to give him credit.

One thing this Trump guy does is keep all of us on our toes. Or, perhaps better said, adopting my best Roseanne Roseannadanna muse, with President Donald Trump, “It’s always something — if it ain’t one thing, it’s another.” So it seems, lately.

This time, the “something” is the wall over which Mr. Trump has had conniptions and the Trumpian “national emergency” that was its outfall.

Think what you will of all of that, one thing it has led to is at least two lawsuits: The first by some property owners who have objected to the proposed wall bisecting their land, and the second by the attorneys general of 16 states. A common theme to the two is that of “standing.”

Standing where?

Well, OK then, what is it? What is standing?

“Like… um… being vertical?” you might ask, “On your feet and all? Your nose higher than your feet and your noggin closer to the heavens than the remainder of your Earthly vessel?”

Well, sort of.

This is a lot less intuitive than you might think. A bit of a trap, really.

In the parallel universe of law, standing means something entirely different than having your head up, your middle unplugged from your easy chair, your bottom down, and your splayed feet planted firmly on the green, green grass of home.

At law, standing is the right and ability to sue.

“Say what? I’ve seen enough TV,” you say. “Anyone can sue anyone.” You clench your Marlboro jaw and bluster, “This, for God’s sake, is America!”

Yeah. In a way. This is indeed America, the most litigious society since man first struck a couple of rocks together to create fire. Over which his neighbors undoubtedly sued for creating a nuisance, or environmental degradation, etc. And right again, anyone can sue anyone but whether or not the suit may be sustained is another question entirely. As Shakespeare eloquently placed in Hamlet’s mouth, “Ay, there’s the rub!”

“Standing to sue” means that the party bringing suit must have sufficient skin in the game — have a sufficient stake in an otherwise justiciable controversy to obtain judicial relief for some harm. In other words, the thing being sued over is “close” enough to the person suing that he has a reasonable hope of being compensated for what he claims to be his loss.

An extreme example

Say you enter into a contract with my best pal, Vaclav, to purchase Vaclav’s 1979 Lada. A Lada is sort of the Russian equivalent of a Fiat. The two of you reach terms, agree on a price, etc. Later, you have second thoughts. You’ve read about pre-perestroika Soviet-made cars and your blood has turned as cold as iced vodka.

You advise Vaclav that you have unilaterally determined not to buy his car and, damn the consequences, you breach the contract. Vaclav is apoplectic, but lacks the spine to sue you for his losses. I, an altruist and Vaclav’s pal, determine to take up the mantel for my feckless friend. I file suit against you, pillorying you before the court for the damages you caused poor Vaclav. Your breach of the contract has reduced poor Vaclav to penury during the slow offseason.

The only problem is, I’ve got no skin in the game, no dog in the fight. Fill in your own platitude.

The dispute is between you and Vaclav. No matter how pure my intention is to buck up and support poor spineless Vaclav, I have suffered no loss at your hands. If lowly, benumbed Vaclav won’t grow a pair and take you on himself, he will simply forfeit his right and neither I nor anyone else may stand in for him. Neither, having suffered no loss, may I assert an independent right. I can certainly file suit, but if and when the suit is contested for lack of standing — as it surely would be — you, poor Vaclav’s tormentor, will soon be celebrating my comeuppance.

In the current legal brouhaha, the landowners who are suing the Feds almost certainly have standing. The government is posturing to take their land and to run a vertical highway of concrete, or steel, or chicken wire — or something — over it. This will clearly deprive them of a right and create in them a compensable loss.

In the second circumstance, the various state’s standing is a bit more attenuated. What all of them are claiming, in one guise or another, is that if federal monies are put to erecting Trump’s wall, other programs will suffer and the citizens of (fill in the name of the state here) will suffer as a consequence. Although not necessarily fatal, the states’ standing is a little bit more far afield than that of the landowners.

Standing does not have to do with the ultimate merits of a claim. Think of standing as a gatekeeper; who gets to come in and rile things up before the court? Standing is a matter of the court’s jurisdiction, meaning the power of a particular court to hear and determine a judicial controversy. If I lack standing and, accordingly the court lacks jurisdiction, we never get to the merits of the case.

Standing is a requirement that the plaintiff has been injured or at least threatened with injury by the action complained of and focuses on the question of whether the litigant is the proper party to prosecute the lawsuit. It does not concern the issue itself, only who is the proper party to advance the ball of litigation.

Standing insures at least a modicum of fairness. And checks a potential donnybrook of needless, vexatious, and attenuated litigation. If it were otherwise, each of us could march to court at every perceived injustice, whether rightly ours to claim or not.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,

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