Bailey v. Preserve Rural Roads of Madison County, Inc.

NOBLE, J.,

Dissenting:

The majority recognizes that the standing of Preserve Rural Roads of Madison *362County, Inc. (“Rural Roads”) depends solely on the standing of its member Ida Wall. If she does not have individual standing or if Rural Roads cannot adequately represent her interests, Rural Roads does not have standing in this case. I dissent because I would find that Rural Roads cannot base its associational standing on Wall, at least as the record presently stands.

My problem with relying on Wall as the basis for Rural Roads’ associational standing is that we do not have enough information about Wall’s interests to tell whether Rural Roads can adequately represent them. Wall did not testify, provide an affidavit, or otherwise participate in this case. Under the majority’s opinion, Rural Roads is able to claim Wall as a member, assert that her interests are the same as Rural Roads’, and ask for relief based upon her interests — all without any involvement or comment from Wall.

For the reasons explained below, I would require an organization asserting associational standing to define its member’s affected interests and to show that there is enough of a relationship between the member and the organization that the organization can adequately represent those interests. Unless this is done, the burden cannot shift to the opposing party; there is rather a failure of the proponent to make his case, and summary judgment is not appropriate. Otherwise, standing based upon “associational interest” will become the new battle cry of any kind of an association that wants to be a party to a specific suit, no matter how slight their nexus is with the “member.” The majority view literally means that the Kentucky Retirement Systems, Humana Health Care, and Sam’s Club could intercede in any lawsuit in which I might have an interest in which they shared — simply because I am a “member” of those organizations.

That is not what my membership in those organizations was intended to accomplish, and I certainly would not endorse every concept that might appeal to any one of them.

Bailey filed a motion for summary judgment based in part on Rural Roads’ lack of standing. I would remand to the trial court to determine whether Ida Wall is a member of Rural Roads and whether she consents to be represented by the organization. Even if the majority is correct that Rural Roads has provided evidence sufficient to show that Wall is a member, the organization has not provided any evidence that she wants Rural Roads to represent her interests in the litigation. Therefore, in my view, summary judgment is not appropriate.

A. Background on Associational Standing

In order to have standing in a case, a party must show that it has “a judicially recognizable interest in the subject matter of the suit.” HealthAmerica Corp. of Kentucky v. Humana Health Plan, Inc., 697 S.W.2d 946, 947 (Ky.1985). The purpose of requiring standing is to make sure that the party litigating the case has a “personal stake in the outcome of the controversy” such that he or she will litigate vigorously and effectively for the personal issues. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Requiring a party to demonstrate a personal interest in the case helps to ensure that, by the time a court has to make a decision, the issues and facts have been fully developed. Id. Furthermore, the requirement of standing prevents courts from being presented with hypothetical or abstract questions. Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

The doctrine of associational standing recognizes that sometimes organizations will be able to litigate the interests of their *363members as well as or better than the members would on their own when the interests of the organization and its members are indeed the same. In International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock (UAW), 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), the Supreme Court identified the reasons for recognizing associational standing: “Besides financial resources, organizations often have specialized expertise and research resources relating to the subject matter of the lawsuit that individual plaintiffs lack.” Id. at 289, 106 S.Ct. 2523 (quoting Note, From Net to Sword: Organizational Representatives Litigating Their Members’ Claims, 1974 U. Ill. L. Forum 663, 669).

This Court has allowed associational standing in the past, e.g., City of Ashland v. Ashland F.O.P. No. 3, Inc., 888 S.W.2d 667 (Ky.1994), but it has only recently begun outlining the requirements and limits of the doctrine, see Commonwealth ex rel. Brown v. Interactive Media Entertainment and Gaming Ass’n, Inc. (iME-GA I), 306 S.W.3d 32 (Ky.2010); Interactive Media Entertainment and Gaming Ass’n, Inc. v. Wingate (iMEGA II), 320 S.W.3d 692 (Ky.2010). Because there are few Kentucky cases on associational standing, this dissent turns to federal cases for guidance.

In defining the limits of associational standing, the federal courts have focused on the underlying goal of standing: to ensure “concrete adverseness” so that cases are vigorously litigated and clearly presented to the courts. Baker, 369 U.S. at 204, 82 S.Ct. 691. The Supreme Court in UAW discussed how the structure of organizations will often guarantee zealous advocacy:

[T]he doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others.... The very forces that cause individuals to band together in an association will thus provide some guarantee that the association will work to promote their interests.

477 U.S. at 290, 106 S.Ct. 2523. Given this concern that the association adequately represent its members’ interests, "organizations like unions and trade associations, which have clearly defined membership and leadership structures, have generally had an easier time showing associational standing in the federal courts. See Kelsey McCowan Heilman, Comment, The Rights of Others: Protection and Advocacy Organizations’ Associational Standing to Sue, 157 U. Pa. L.Rev. 237, 239 (2008).

Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), provided the foundational three-part test for associational standing:

Thus we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Id. at 343, 97 S.Ct. 2434. Kentucky has not adopted this entire test, but this Court has held that “at least the first requirement must apply.” iMEGA I, 306 S.W.3d at 38. “An association can have standing only if its members could have sued in their own right.” Id. This case is the next opportunity to clearly define the law of associational standing in Kentucky, and we must take care to clearly advance when and how it applies.

*364In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the Supreme Court addressed the claim of an advocacy organization, which is the type of organization this case is about. The Supreme Court rejected a claim that a conservation organization could have standing based on its own longstanding goal of conserving natural lands. Id. at 738-40, 92 S.Ct. 1361. Although the Sierra Club had tens of thousands of members, some of whom may have had a personal interest in the affected lands, it had not provided any information or evidence about the personal interests of its members. Id. at 735 & n. 8, 92 S.Ct. 1361. The Sierra Club and other advocacy organizations (like Rural Roads) differ from unions and trade associations because unions and trade associations are organized for the purpose of protecting and promoting their members’ 'personal interests. Advocacy organizations like the Sierra Club, in contrast, aim to protect a wider set of interests such as the public’s interest in preserving natural areas for public use, or even a general interest in preserving wild areas even if no one ever goes to visit them. Cf. Karl S. Coplan, Is Voting Necessary? Organizational Standing and Non-Voting Members of Environmental Advocacy Organizations, 14 Southeastern Envtl. L.J. 47 (2005) (describing the trend toward “mission-driven” advocacy organizations).

To address the uncertainty about the plaintiffs stake in the litigation, the Supreme Court in Morton said that the organization would have to show that one or more of its members had suffered a personal injury. 405 U.S. at 738, 92 S.Ct. 1361. This requirement “serve[s] as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.” Id. at 740, 92 S.Ct. 1361.

Morton seems to be directly on point with the present facts. Rural Roads does not have the singular goal of preserving landowners’ access to roads; its goal is to preserve all rural roads in the county for public use. Therefore, we should consider what the individual member’s interest is and whether the organization can adequately represent that interest. This gives rise to two specific questions relevant to this case: What must an association do to show who is a member? "What must an association do to show that its member would have standing to sue individually?

B. Who Is a “Member” for Associational Standing Purposes?

The U.S. Supreme Court has never defined the requirements for “membership,” Heilman, 157 U. Pa. L.Rev. at 251, and the lower federal courts have reached varying conclusions on how to define it. At least one court has allowed the organization to define its own membership. Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d 826 (5th Cir.1997). In Friends of the Earth, an environmental organization considered everyone who had made a contribution to the organization, or who had a contribution made in their honor, to be a member. Id. at 827. The court held that the organization could assert standing on behalf of its members despite its loose requirements for membership because the members voluntarily associated themselves with the organization, elected the governing body of the organization, and financed its activities. Id. at 829. Importantly, the court noted that the individuals who were claimed as members for the purposes of litigation testified in court that they were in fact members of the organization. Id. Thus there was evidence that the members wanted the organization to represent their interests in the case.

*365At least a few cases have held that members must indicate their consent to have the organization represent their interests. In Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, 507 F.2d 905 (9th Cir. 1974), an environmental organization asserted standing to challenge an Arizona state action on behalf of its 107 members who lived in the state. Id. at 910. It did not name the members, submit affidavits from them, or have them participate in any way. Id. The court noted that there had been “no allegation or showing on the record in this court that the Arizona members have either requested to be represented or consented to be represented by the NRDC in this action.” Id. The court dismissed the NRDC’s claim because the organization had not made the required showing under Morton. Id. Other courts have reached similar conclusions. See Local 194, Retail, Wholesale and Dep’t Store Union v. Standard Brands, Inc. (Local 194), 540 F.2d 864, 867-68 (7th Cir.1976) (requiring a union seeking associational standing to “give notice of its representation to all its members” and creating a way for members who chose not to be repre sented by the union to opt out); Nat’l Coal. Gov’t of Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 344 n. 16 (C.D.Cal. 1997) (noting, in dicta, that “an organization only has associational standing when it has a clear mandate from its membership to take the position asserted in the litigation”).

I favor the view that the member must consent in writing or by testimony to the association’s representational standing on the member’s behalf, as a matter of Kentucky law on associational standing. Without some indication that the member wants the organization to assert his or her interests, there is little guarantee that the organization can adequately represent them.

C. What Must an Association Do to Show that its Member Would Have Standing to Sue Individually?

In order to get associational standing, an organization must show that it has at least one member who would have standing to sue individually. UAW, 477 U.S. at 281-82, 106 S.Ct. 2523. To meet this requirement, the orgánization will usually have to identify the member and establish that member’s interest in the litigation. iMEGA I, 306 S.W.3d at 38-39. I would add that the member must consent to have the organization represent her interests, unless every member of the organization shares the same interest and injury, as discussed below. With those safeguards, there is less likelihood of some hapless member finding himself as the poster child for an issue he may not truly be ready for.

In iMEGA I, this Court considered the standing of gaming associations that claimed to represent a number of unnamed registrants of gaming websites. The Court held that each gaming association had to identify at least one member who had suffered an injury in order to establish standing. Id. at 39.

In iMEGA I, the Court recognized that in some situations naming a specific member who had suffered a specific injury would not be necessary. The Court cited City of Ashland v. Ashland F.O.P. No. 3, 888 S.W.2d 667 (Ky.1994), for this contention. In that case, this Court held that an organization “had sufficient standing because the nature of police work was such that the lodge members had a real and substantial interest in [the dispute].” Ashland F.O.P., 888 S.W.2d at 668. In Ashland F.O.P., it was stipulated that the organization represented the majority of the police officers in the city, but the organization apparently did not provide a membership list. Id. This Court distin*366guished Ashland F.O.P. from the organizations in iMEGA I because the membership of the F.O.P. was stipulated — the organization represented the majority of officers in the city — and all of the officers who belonged to the organization would be affected by the ordinance that was being challenged. iMEGA I, 306 S.W.3d at 39 (citing Ashland F.O.P., 888 S.W.2d at 668). The injury would be suffered by all the members in the same way. Id. In iMEGA I, in contrast, it was not clear who the members were or which members would be injured by the challenged action. Id. The Court noted, “In cases where the harm is specific, the proof of standing must be equally specific.” Id.

This case is more similar to iMEGA I than Ashland F.O.P. The potentially re-dressable harm is more specific than the organization-wide harm in Ashland F.O.P. To show associational standing, then, Rural Roads must first identify a member and show that the member consents to have her interests represented by the organization. Then the organization must show that the member has a judicially recognizable interest such that she would have standing to bring the case individually. Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

This individual member’s standing must be proved to the same extent that other facts must be proved at each successive stage of the litigation. The association bears the burden of showing that the member has standing. iMEGA I, 306 S.W.3d at 38 (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). At the pleading stage, general allegations will suffice; by the summary judgment stage, “more particulars regarding the association’s membership must be introduced or referenced”; and in order to get a favorable judgment, the association must establish concrete evidence that at least one of its members who consents to be represented by the organization has been injured, or under our law, that all members have been injured sufficient to constitute standing to all. Id. at 40 (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130, and Sierra Club v. SCM Corp., 747 F.2d 99, 107 (2d Cir.1984)); Ashland F.O.P., 888 S.W.2d at 668. In other words, the ordinary Rules of Civil Procedure apply to standing just as they apply to any other “indispensable part of the plaintiffs case.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

D. Analysis of this Case

I would find that Rural Roads has not established its standing because it has not shown that Ida Wall consented to Rural Roads’ representation in writing or by testimony.

As the majority points out, Rural Roads has provided some evidence that Wall is a member of the organization. Curtis Tate, one of the directors of the corporation, testified that Wall was a member; her name was on a typed membership list for the corporation; and Wall made out a check to her relative Dorothy Wall noting “Preserve Our Roads Committee” on the memo line. So there is at least some evidence that she was a member of the organization and agreed with its goals.

There is no evidence, however, that Wall has consented to have her interests represented by Rural Roads or that she even knows that the organization is asserting her interests. Several other courts have found that an organization’s failure to get the consent of the members it claims to represent is problematic for associational standing, and so should we. See Nat’l Resources Defense Council, 507 F.2d at 910; Local 194, 540 F.2d at 867-68; Nat’l Coal. Gov’t of Union of Burma, 176 F.R.D. at 344 n. 16. Without some indication from Wall that she consents to Rural Roads asserting her interests, there is no guaran*367tee that her interests will be adequately represented.

Wall is the only member of Rural Roads who has even a potential claim for standing because she is the only member who owns land on Dunbar Branch Road. The other members of the organization have only generalized injuries; their claimed injuries of being forced to take a longer route across the county and of being unable to visit historic sites are no different from the injuries suffered by other members of the general public. Wall’s harm is specific to her because of her ownership of land, and “[i]n cases where the harm is specific, the proof of standing must be equally specific.” iMEGA I, 306 S.W.3d at 39.

If Wall, in fact, objects to having the gates across the road, then her ownership Of land on the road gives her standing to sue. The inconvenience caused by the gates would be “injury” enough to establish standing. But it is not obvious, without some input from Wall, that she would object to the gates. Every other landowner along the road apparently wanted the gates to remain in place. Bailey testified in his deposition that he provided Wall with a key to the gates; specifically, he gave Gary Owens, who was “acting for Ida Wall,” a key to the gates with instructions to make copies. If Wall and her family had access to their land through the gates, it is not obvious that she would want the gates taken down. In fact, Wall may be benefitted rather than injured by Bailey’s actions. Bailey’s reason for putting up the gate was to minimize the wear and tear on the road caused by public use of the road, and thereby to minimize the costs of repair which would be borne by landowners along the road — including, presumably, Wall.

Without any indication of Wall’s consent, there is no way for a court to know whether the controversy is purely hypothetical because there is no real disagreement between Wall and Bailey or, stated differently, whether Rural Roads is actually litigating against the interests of the person it claims to represent.

I would require a showing that Wall consents to have Rural Roads represent those interests. Proof that she is a member is not, by itself, sufficient to show that she has consented to the representation. Probably the easiest way for an organization to do this at the summary judgment stage is to have the member sign an affidavit stating that she is a member of the organization and she consents to having her interests represented by the organization, and explaining how she is injured by the defendant’s actions. An affidavit is enough to avoid summary judgment. See CR 56.05. The organization may also choose to present the information in a deposition or other form of discovery.

This requirement would not put a large burden on plaintiff-organizations, but it would help to ensure that organizations can adequately represent their members’ interests. And it would serve the underlying goal of associational standing — ensuring vigorous litigation of members’ interests — because it would define the individual member’s interests in the case and confirm that the member wants those interests to be litigated by the organization.

Consequently, I would remand this case to the trial court for further development of the proof that Rural Roads has associational standing. Summary judgment was premature.

CUNNINGHAM and SCOTT, JJ„ join.