Foster v. State

MOORE, Justice,

with whom BURKE, Justice, joins, concurring.

I concur. However, in my opinion, Schnabel lacks standing to contest the adequacy of notice given by the Territory prior to its 1957 foreclosure.

The test for standing previously set forth by this court is broad: “[A]ll that is necessary is a ‘sufficient personal stake in the controversy to guarantee “the adversity which is fundamental to judicial proceedings.” ’ "1 The court has “departed from a restrictive interpretation of the standing requirement ... adopting instead an approach ‘favoring increased accessibility to judicial forums.’ ” Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987) (citations omitted).

Yet, to say that any potential litigant who is willing to risk attorney’s fees is adverse enough to have standing would be incorrect. Each case is examined on its facts. See, e.g., id. at 329; Hoblit v. Commissioner of Natural Resources, 678 P.2d 1337, 1341 (Alaska 1984) (remanded for a determination whether a sale of neighboring state land without shoreline easements would increase pedestrian traffic on plaintiff’s land, thereby injuring him).

We have identified two kinds of standing: interest-injury standing, and citizen-taxpayer standing. Trustees, 736 P.2d at 327. Schnabel’s claim lies in the interest-injury category, in which “a plaintiff must have an interest adversely affected by the conduct complained of.” Id. While the degree of injury need not be great, id., we have never held that standing can be created by wagering on whether someone else’s injury will ultimately be vindicated.

Under the interest-injury approach, a litigant can have standing either to protect his own rights, or, in rare cases, to protect the rights of third parties by acting in a representative capacity. See Wagstaff v. Superior Court, Family Court Division, 535 P.2d 1220, 1225-26 (Alaska 1975).

If Schnabel’s claim of standing is based on protecting his own rights, there is a gap in the causal connection between the allegedly-improper notice and Schnabel’s injury. Even had the Territory tried to send personal notice by registered mail to the record owner of M.S. 572, to whom would they have sent it? To this day, the record owner is unknown. Perhaps the strongest candidate is Porcupine Mining Co., a corporation dissolved years before the foreclosure, with unknown successors in interest.2 Thus, even if the Territory had used its best efforts to provide notice, in all likelihood the foreclosure would have occurred anyway. It is too speculative to say *467that the former record owner would have received the notice, would have prevented foreclosure by paying off the State’s lien, and then would have allowed Emerson to continue his adverse possession. The causal connection between the allegedly defective notice and Schnabel’s present predicament is too attenuated to confer standing upon him.

The causation aspect of standing has never been well developed by this court. However, federal courts have addressed the issue at length. To have standing in federal court, a litigant must show that but for the challenged action, his injury would not have occurred. See Warth v. Seldin, 422 U.S. 490, 504-08, 95 S.Ct. 2197, 2207-2210, 45 L.Ed.2d 343, 358-59 (1975) (in a challenge of restrictive zoning practices, litigants lacked standing because they failed to allege facts showing that, “absent the respondents’ restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield”). In Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 40-45, 96 S.Ct. 1917, 1225-1227, 48 L.Ed.2d 450, 462-64 (1976), the Court held that the causation requirement of standing is not merely prudential, but is mandated by Article III.3

In Alaska state courts, standing restrictions are prudential, rather than constitutionally mandated. In this case, the party entitled to notice was the 1957 record owner. That person, whomever he may be, does not claim that the notice was defective. Under these circumstances, it is imprudent to entertain such a claim by one who was not injured by the alleged violation. To do so would be a misallocation of judicial resources.

Schnabel’s alternative basis for standing is that he seeks to protect not his own rights but the rights of a third party— namely, the former record owner. A litigant can have standing to protect the constitutional rights of a third party when a special relationship exists between the two, and when the third party’s rights would otherwise go unasserted. This court allowed standing on this basis in Wagstaff v. Superior Court, Family Court Division, 535 P.2d 1220, 1226 (Alaska 1975). However, in Schnabel’s case, this basis for standing is totally inapposite: Schnabel seeks to vindicate the rights of the former record owner not to protect that person, but instead to possess adversely against him. In other words, Schnabel is not an appropriate representative.

For these reasons, I would affirm the superior court’s holding that Schnabel lacks standing. As for the defense of lach-es, I agree that it would otherwise bar Schnabel’s claim. However, a person who lacks standing to raise a claim cannot unreasonably delay in asserting it.

. Adams v. Pipeliners Union 798, 699 P.2d 343, 346 (Alaska 1985) (quoting State v. Lewis, 559 P.2d 630, 635 (Alaska 1977), appeal dismissed, 432 U.S. 901, 97 S.Ct. 2943, 53 L.Ed.2d 1073 (1977) (quoting Moore v. State, 553 P.2d 8, 23 (Alaska 1976))).

. Foster, in his second amended complaint, alleges the record owner in 1957 was the Porcupine Mining Co. The DNR decision regarding Foster’s repurchase application states: "According to information available at the Department of Commerce and Economic Development, Porcupine Mining Co. (a Delaware corporation) was ‘dissolved’ on January 2, 1946” (footnote omitted).

. The Warth and Simon opinions have been criticized, primarily because the Supreme Court required such a high degree of certainty in the causal connection. See L. Tribe, American Constitutional Law 129-34 (2d ed. 1988).