Fraternal Order of Police, Capital City Lodge No. 9 v. City of Columbus

* * * I respectfully dissent from the majority's disposition of the first assignment of error.

While it is uncontroverted that plaintiff serves its members in various beneficial capacities, my review of R.C. 2721.03 and the case law defining the elements that must be considered in determining whether an association may represent its members in a legal action of this nature, causes me to conclude that plaintiff has no legal standing to represent some of its members in their individual claims against the city of Columbus for additional compensation. In State, ex rel. Dallman, v. Court (1973), 35 Ohio St.2d 176 [64 O.O.2d 103], the Ohio Supreme Court, in holding that the superintendent of a correctional institution did not have standing to proceed with a writ of prohibition to stop an inmate from receiving shock probation, stated in its syllabus that: "A party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action." In its opinion, the court observed that the petition revealed no allegation that the superintendent had a personal stake in the outcome of the case. In the court's words:

"As stated in Sierra Club v. Morton (1972), 405 U.S. 727,31 L.Ed. 2d 636, 641: `* * * Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186 * * * as to ensure that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Flast v. Cohen, 392 U.S. 83 * * *.'" Id. at 178-179.

In Warth v. Seldin (1975), 422 U.S. 490, the Supreme Court of the United States reviewed the principles of standing applicable to constitutional limitations on federal court jurisdiction and prudential limitations. The Supreme Court pronouncements on standing are important because our own Supreme Court has relied upon them. See State, ex rel. Dallman, v. Court, supra. In holding, inter alia, that Rochester Home Builders Association, whose members consisted of *Page 5 several residential construction firms, could not intervene as a party plaintiff in a suit challenging a city's zoning ordinance on the ground that it excluded persons of low and moderate income from living and building in the town, the court held that, even though some of the members of the Home Builders Association would lose substantial business opportunities and profits, their interest was not enough to give standing to the association. The court stated that:

"* * * [W]hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. * * * [Citations omitted.]" (Id. at 515.)

The court continued:

"The present case, however, differs significantly as here an association seeks relief in damages for alleged injuries to its members. Home Builders alleges no monetary injury to itself, norany assignment of the damages claims of its members. No awardtherefore can be made to the association as such. Moreover, in the circumstances of this case, the damages claims are not common to the entire membership, nor shared by all in equal degree. To the contrary, whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extentof injury would require individualized proof. Thus, to obtain relief in damages, each member of Home Builders who claims injury as a result of respondents' practices must be a party to the suit, and Home Builders has no standing to claim damages on his behalf." (Emphasis added.) (Id. at 515-516.)

In 1977, the Supreme Court again reviewed the principles of standing as they applied to a state commission whose sole purpose was the promotion of Washington state apples. In Hunt v.Washington State Apple Advertising Comm. (1977), 432 U.S. 333, the Supreme Court held that the commission had standing to bring a declaratory and injunctive action challenging the constitutionality of a North Carolina statute which prohibited the display of Washington state apple grades on closed containers shipped into North Carolina. In concluding that the commission had standing, the Supreme Court found, inter alia: (1) the claim did not require individualized proof, (2) the interest of the commission itself would be adversely affected by the outcome of the litigation because the apple growers paid assessments to the commission which would be diminished if the apple growers sold less apples, and (3) the commission's attempt to secure the apple growers' right to publicize their grading system was central to the commission's purpose of protecting and enhancing the market for Washington state apples.

Whatever the merits may be of the claims of the individual police officers whom plaintiff seeks to represent in this case, it is clear that, if the test stated by the United States Supreme Court and the Supreme Court of Ohio is applied to the case before us, plaintiff does not have standing to assert those claims. Plaintiff's complaint alleges no injury to plaintiff. Nor is there an allegation or evidence that plaintiff, as a separate entity, has any interest in the cause of action of some of its members. Therefore, plaintiff fails to comply with the most frequently cited principle in determining whether a plaintiff has standing to sue in a representative capacity. Even in a declaratory judgment action, the plaintiff who is pursuing a cause of action in a representative capacity *Page 6 must allege not only that its members have been injured but that it, too, is injured or at least has a personal stake in the outcome of the controversy. Hunt v. Washington State AppleAdvertising Comm., supra; Warth v. Seldin, supra.

Moreover, as the Supreme Court found in Warth, the damage claims in the case before us are not common to the entire membership or shared by all in equal degree. The injury suffered by any of the members of plaintiff by not being compensated commensurate with the duties they performed are peculiar to the individual member and would require individualized proof.

The Supreme Court of the United States and the Supreme Court of Ohio have provided us with fairly clear principles to be used in determining whether a person or an association has standing to pursue a cause of action in a representative capacity. The principles are unusually clear and straightforward and appear to me to unquestionably apply to plaintiff's pursuit of this cause of action on behalf of some of its members. The first assignment of error should be sustained and the judgment of the trial court reversed.