Standing to Sue
Standing is a threshold requirement that a party must meet in order to maintain a lawsuit or to support that party’s participation in the case. “Any litigant must demonstrate that he or she has standing to invoke the power of the court to determine the merits of an issue.” Vaughan v. First Union Nat’l Bank, 740 So. 2d 1216, 1217 (Fla. 2d DCA 1999).
As the U.S. Supreme Court has stated, “[i]n essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975).
To establish standing to sue, a plaintiff must have a “legitimate or sufficient interest at stake in the controversy that will be affected by the outcome of the litigation.” DeSantis v. Fla. Educ. Ass’n, 306 So. 3d 1202, 1213 (Fla. 1st DCA 2020) (quoting Equity Res. v. Cty. of Leon, 643 So. 2d 1112, 1117 (Fla. 1st DCA 1994)).
Test for Standing
When determining whether a plaintiff has standing, courts consider these three elements:
First, a plaintiff must demonstrate an “injury in fact,” which is “concrete,” “distinct and palpable,” and “actual or imminent.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). Second, a plaintiff must establish “a causal connection between the injury and the conduct complained of.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Third, a plaintiff must show “a ‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact.” [Vermont Agency of Natural Res. v. Stevens, [529 U.S. 765, 771] [(2000)].
State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004) (internal citations edited).
To have standing, a plaintiff must have “a personal stake in the outcome of the proceeding, such as an injury that may be redressed by the suit.” See Sun State Utils., Inc. v. Destin Water Users, Inc., 696 So. 2d 944, 945 n.1 (Fla. 1st DCA 1997). That injury has to be “distinct and palpable, not abstract or hypothetical.” Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 117 (Fla. 2011). See also McCall v. Scott, 199 So. 3d 359, 366 (Fla. 1st DCA 2016) (explaining that speculative and conclusory allegations of harm cannot confer standing).
Standing is implicated in every lawsuit so cases addressing this issue are varied. See, e.g., Bd. of Adjustment v. Marelli, 728 So. 2d 1197, 1198 (Fla. 2d DCA 1999) (“A multitude of cases recognize that neighboring property owners affected by zoning changes have standing to challenge the changes.”); Khazaal v. Browning, 707 So. 2d 399 (Fla. 5th DCA 1998) (the grantor of a security interest being foreclosed has a sufficient stake in the litigation); Peregood v. Cosmides, 663 So. 2d 665, 668–69 (Fla. 5th DCA 1995) (minor “established a significant interest and demonstrated the necessary injury in fact to establish standing to challenge his [own] adoption.”); Passell v. Watts, 794 So. 2d 651, 652 (Fla. 2d DCA 2001) (intended third-party beneficiaries of will had standing to bring legal malpractice action if they could show that the testator’s intent as expressed in the will was frustrated by the negligence of the testator’s attorney).
Standing to Assert the Rights of Third Parties
“Ordinarily, of course, a litigant must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” United States Dep’t of Labor v. Triplett, 494 U.S. 715, 720 (1990) (quotation omitted). However, there are some notable but narrow exceptions to this rule, where litigants have been allowed to assert the rights of third parties. For example:
Whitmore v. Arkansas, 495 U.S. 149, 161-62 (1990) (“Although we have never discussed the concept of ‘next friend’ standing at length, it has long been an accepted basis for jurisdiction in certain circumstances. Most frequently, ‘next friends’ appear in court on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves.”);
Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392-93 (1988) (quotation omitted) (“[I]n the First Amendment context, ‘[l]itigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’”);
Craig v. Boren, 429 U.S. 190, 195 (1976) (quotation omitted) (standing where there was a close relationship between the rights of the litigant and the rights of third parties “that would be ‘diluted or adversely affected’ should her constitutional challenge fail and the statutes remain in force.”);
Singleton v. Wulff, 428 U.S. 106 (1976) (allowing physicians to assert the rights of women patients against interference with their right to an abortion);
Griswold v. Connecticut, 381 U.S. 479, 481 (1965) (allowing physicians to assert the rights of women patients against interference with their right to use contraceptives);
Barrows v. Jackson, 346 U.S. 249, 259 (1953) (owner of real estate subject to racial covenant granted standing to challenge such covenant in part because she was “the one in whose charge and keeping [reposed] the power to continue to use her property to discriminate or to discontinue such use.”).
Standing to Defend
“While the concept of ‘standing’ generally concerns the right of a party to sue, it also applies to a person’s right to defend.” RHPC, Inc. v. Gardner, 533 So. 2d 312, 314 (Fla. 2d DCA 1988). “Few persons volunteer to defend an action that is not brought against them. Even so, the doctrine applies and a person must have an interest in the subject matter of or relief sought by an action to have the right to defend it. If a person has an interest that may be adversely affected by the outcome of an action in which he was not sued by the plaintiff, he may intervene to protect his interest.” Id. (quotation omitted).
Standing Issues within a Proceeding
Standing issues can also arise during certain proceedings within a pending action. For example, a party, as well as the person subpoenaed, has standing to seek an order quashing a subpoena upon a showing of unreasonableness and oppressiveness. Sunrise Shopping Center, Inc. v. Allied Stores Corp., 270 So. 2d 32, 34 (Fla. 4th DCA 1972). However, only the person served has standing to seek an order quashing service of process. Kaufman v. Metro Limo Fund, Inc., 503 So. 2d 967, 968 (Fla. 3d DCA 1987).
How Standing is Determined
Standing is a question of law, which is decided by the presiding judge. See McCall v. Scott, 199 So. 3d 359, 364 (Fla. 1st DCA 2016). “Whether a party has standing to bring an action is a preliminary matter to be decided on the basis of the pleadings filed in that particular case.” In re Huff, 109 B.R. 506, 509 (Bankr. S.D. Fla. 1989) (citation omitted). “When standing is challenged on the basis of the pleadings, the Court must accept as true all material allegations and construe them in favor of the party whose standing is challenged.” Id. (citing Pennell v. City of San Jose, 108 S. Ct. 849, 855 (1988)).
However, it is important to remember that the issue of standing may be waived if not raised at the trial level. See Krivanek v. Take Back Tampa Political Comm., 625 So. 2d 840, 842 (Fla. 1993) (“The issue of standing should have been raised as an affirmative defense before the trial court, and Krivanek’s failure to do so constitutes a waiver of that defense, precluding her from raising that issue now.”).