IN THE UNITED STATES DISTRICT COURT

  WESTERN DISTRICT OF ARKANSAS .

FAYETTEVILLE DIVISION

 

JOHN S. LA TOUR                                             PLAINTIFF

                VS.                                                                                                                 CASE NO.: 02-5001

CITY OF FAYETTEVILLE, ARKANSAS          DEFENDANT
                                                                                              

 

CITY OF FAYETTEVILLE'S SUPPLEMENTAL RESPONSE TO PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT STANDING

        The Plaintiffs Motion for Partial Summary Judgment on the Issue of the Facial Constitutionality of the Fayetteville, Arkansas Sign Ordinance, UDO Chapter 174 is currently before this Court. Before addressing the merits of that Motion and related pleadings, this Court, via its order of February 6, 2003, requested, sua sponte, that the parties provide additional briefs on the specific issue of whether the plaintiff has standing to bring a facial challenge to the constitutionality of the sign ordinance It is for that   reason that this Supplemental Response is filed.

        A fundamental aspect of the judicial system in this country is the "cases and controversies" requirement embodied in Article III of the United States Constitution and enforced by the "standing" doctrine - all of which reflect traditional and underlying notions of separation of powers. Standing focuses on the party seeking to get his or her claim before a federal court and not on the issues that he or she wishes to present to that court. Flast v. Cohen, 392 U.S. 83, 99 (1969)(emphasis added) The standing doctrine requires that the person bringing a cause of action in any court of law have standing to bring that particular cause of action at that particular time in that particular forum. Otherwise, the action will not be heard.

 

        As previously mentioned, Article III is the source for the standing requirement and it limits judicial review to actual cases and controversies, which cannot exist where the person before the court lacks standing. See generally: Allen v. Wright, 468 U.S. 737, 750 (1984) quoting: Valley Forge, 454 U.S. at 471 citing: Liverpool S.S. Co. -v. Commissioners of Emigration, 113 U.S. 33, 39, (1885) The case or controversy doctrine and its related standing requirement are "fundamental limit(s)" on the power of the federal judiciary. Allen, 468 U.S. at 750 In fact, the, standing requirement is "perhaps the most important" limit on the invocation of federal judicial power. Id. Moreover, landmarks have always defined the judiciary, and one of those landmarks has long been the standing doctrine, which sets apart and identifies justiciable issues that are

-, or should be appropriately resolved through the judicial, process from those issues that. '- should not. Lujan v. Defenders of Wildlife, 504 U.S. 555,560 (1992) citing: Whitmore v. Arkansas, 495 U.S. 149 (1990) To enforce the cases and controversies requirement of Article III, the standing doctrine has been used as a shield by which a court can protect itself from potential litigants who lack standing. Valley Forge, 454 U.S. at 471 Over the years, courts have established the "irreducible constitutional minimum of standing" requires that the plaintiff establish the following 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 the result [of] the independent action of  some third party before the court.

    Third, it must be 'likely,' as opposed to 'speculative,' that the injury will be redressed by a favorable decision.

                                                                                            Lujan, 504 U.S. at 560-561 citations omitted (emphasis added)

        Each of these factors are "indispensable part(s)" of the plaintiffs case and the plaintiff has the burden of establishing each factor. [d. at 561 (emphasis added) See also: Valley Forge .454 U.S. at 472 citing: Gladston, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979) citing: Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26; 38, 41 (1976)

 

        The United States Supreme Court has noted that the "gist of the question of standing" is whether the party who seeks relief from the court 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." Baker v. Carr, 369 U.S. 186, 204 (1962) The adverseness referred to by the court is the requirement that the complaining party have suffered or be subject to an "injury in fact" - the first element set forth above. Valley Forge Christian College v. Americans United, 454 U.S. 464,482-486 (1982).

           It has been held that an ideological interest in the matter or its outcome is not an injury in fact and that a person whose complaint is based upon his ideological interest does not have sufficient standing to bring his cause of action. Valley Forge 454 U.S. 464, 482-486 Additionally, the injury in fact test requires more than an injury to a "cognizable interest" and, in actuality, requires that the party seeking review be actually injured or among the injured. Lujan, 504 U.S. at 505 An injury in fact does not exist where all a person can show is that he or she has an interest or has suffered an alleged injury that is shared by all members of the public or, as referred to in the case law, presents an "injury in the abstract" sense only. Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208 (1974) Finally, the injury alleged must be "distinct and palpable," "not abstract," not "conjectural," not "hypothetical," and must be "fairly traceable" to the complained of conduct or regulation. Allen, 468 U.S. at 751 citations omitted.

        In this case, it is clear, in fact it has been noted in prior orders of this Court, that the Plaintiff has not pleaded or otherwise averred that he has bee~ injured. See: February 6,2003 Order, pg. 2 Moreover, this Court has found that the Plaintiff has not suffered an irreparable injury, that his First Amendment rights have not been deprived, that the Ordinance in question does not amount to a content based regulation, and that the Ordinance would not prevent plaintiff from displaying time / temperature readings in a ..' flashing mode if he chose to do so ember 13, 2 order, pg. 5-8 As such, because the Plaintiff has not pleaded or alleged that he suffered an injury in fact due to the Ordinance he has not sustained an injury in fact and does not have standing to bring this claim.

        Even assuming arguendo that Plaintiff had pled that he sustained an actual injury, because the Court has failed to find that the claimant suffered any actual injury or injury in fact he would, nonetheless, not have standing to bring this cause of action. As such, the only possible basis for Plaintiff to assert standing lies, at best, in the abstract sense or is purely conjectural or hypothetical, none of which are sufficient to support the establishment of an injury in fact having been suffered by the Plaintiff. For all of these reasons, Plaintiff does not have standing to bring this action.

        Moreover, the standing doctrine prevents an overzealous litigant from turning the 'judicial system into 'no more than a vehicle for the vindication of the value interests of concerned bystanders.'" Valley Forge 454 U.S. at 473 citing: United States v. SCRAP, 412 U.S. 669, 687 (1973) The standing doctrine is not met merely because a citizen requests that a district court "declare its legal rights, and has couched that request for relief in terms that have a familiar ring to those trained in the legal process."  Valley Forge, 454 U.S. at 471 As succinctly stated in Valley Forge:

 

                [W]ere the federal courts merely publicly funded forums for the ventilation of public grievances or the refinement of  jurisprudential understanding, the concept of 'standing' would be quite unnecessary. But the 'cases and controversies' language of Art. III forecloses the conversion of courts of the United States into r a 1 judicial version of college debating forums.

 

    Moreover, the United States Supreme Court has "consistently held:" a plaintiff raising only a generally available grievance about government ~ claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large - does not state and Article II case or controversy.

Lujan, 504 U.S. at 573-574

    As previously mentioned, Plaintiff has not been harmed, has not been injured, and has failed to meet or establish the requisite factors that would grant him standing before this Court. Additionally, it is clear that, if anything, Plaintiff is only an overzealous advocate who has brought this action in an attempt to right a non-existent wrong and to convert this Court into a forum for debate about the parameters of the Ordinance. Additionally, because the Plaintiff has not been injured, he cannot be seeking relief that directly and tangibly benefits him over and above the public at large because without any injury or harm, their can simply be no damage. The standing doctrine is in place to. prevent these exact types of litigants from reaching the courts and flooding their dockets with cases of questionable merit. For these reasons, in addition to the aforementioned, the Plaintiff lacks standing to bring this cause of action.

           Finally, simply meeting the standards of Article III is not always sufficient to obtain court review of a potential grievance. The federal courts have "refrained from adjudicating 'abstract questions of wide public significance' which amount to 'generalized grievances,' pervasively shared and most appropriately addressed in the representative branches." Id. In this case, there is little doubt that the heart of Plaintiffs Complaint is his general criticism of the Ordinance and the employees tasked with enforcing the Ordinance. As such, at best, Plaintiffs complaints are only abstract questions regarding a valid Ordinance that has not resulted in any injury or harm to Plaintiff. This type of criticism is better suited to treatment by the local body that promulgates ordinances for the City of Fayetteville and not this Court.

        Based on the record now before the Court as well as the precedent and argument set forth hereinabove, it is clear that the Plaintiff lacks standing to bring his facial challenge. For that reason, the City of Fayetteville respectfully requests that this Court deny the Plaintiffs Motion for Partial Summary Judgment and also respectfully requests that, because the plaintiff lacks standing, his cause of action be dismissed.