United States Court of Appeals,third Circuit, 952 F.2d 742 (3d Cir. 1991)

The parties' positions, in brief, are these: Chief Justice Wilentz argues that third party standing is generally disfavored, recognized only where the third party faces an obstacle to its own suit and where the plaintiff's interests coincide with the nonsuing third party's. In his view, Warner Brothers could easily have sued but deliberately chose not to, possibly because it presciently feared what in fact transpired as a result of the suit: a blanket ban on commercial filming. He also stresses that considerations of federalism and comity weigh heavily against according third party standing to a county to sue the state of which it is a subordinate governmental unit.

The County responds that courts routinely allow sellers who lose money because of violations of their customers' constitutional rights to assert claims on their customers' behalf, obstacle or not. Moreover, it notes, courts have long relaxed third party standing rules in First Amendment cases because of censorship's chilling effect on others not before the court. Finally, the County submits, Warner Brothers had no incentive to sue because it was on a tight schedule and succeeded in filming the scenes elsewhere with little if any monetary loss.

B. General Principles of Third Party Standing

The longstanding basic rule of third party standing is that "in the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties." Powers v. Ohio, --- U.S. ----, 111 S. Ct. 1364, 1370, 113 L. Ed. 2d 411 (1991). The rule serves at least two judicial purposes. First, the rule fosters judicial restraint: courts faced with unsettled questions avoid pronouncements that are perhaps unnecessary and undesirable because the rightholders do not wish to assert their rights. See Secretary of State of Maryland v. Munson, 467 U.S. 947, 955, 104 S. Ct. 2839, 2846, 81 L. Ed. 2d 786 (1984); Singleton v. Wulff, 428 U.S. 106, 113-14, 96 S. Ct. 2868, 2873-74, 49 L. Ed. 2d 826 (1976) (plurality opinion). Second, the rule assures concrete, sharp presentation of the issues and enables courts to avoid ruling on abstract grievances. Generally, the third party will be the best advocate of its own position, and the plaintiff may place a slightly different, self-interested "spin" on its presentation. See Munson, 467 U.S. at 955, 104 S. Ct. at 2846; Singleton, 428 U.S. at 114, 96 S. Ct. at 2874.

The general rule against third party standing is not ironclad, however. The rule does not reflect an Article III "Case or Controversy" requirement, but stems from prudential concerns. See, for example, Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n. 3, 109 S. Ct. 2646, 2651 n. 3, 105 L. Ed. 2d 528 (1989); Hodel v. Irving, 481 U.S. 704, 711, 107 S. Ct. 2076, 2080, 95 L. Ed. 2d 668 (1987); Craig v. Boren, 429 U.S. 190, 193, 97 S. Ct. 451, 454, 50 L. Ed. 2d 397 (1976). Accordingly, in limited circumstances where the policies supporting the general rule are not served, the Supreme Court has approved third party standing. See Singleton, 428 U.S. at 114-15, 96 S. Ct. at 2874. Where rightholders are unable to raise their own rights and their relationship with the plaintiff suggests an identity of interests, courts can be more certain that the litigation is necessary and that the issues will be framed clearly and effectively. See id. at 114-16, 96 S. Ct. at 2874-75. Moreover, other policy considerations, notably the fear of chilling expression in First Amendment cases, may at times outweigh the policies behind the general rule against third party standing. See, for example, Munson, 467 U.S. at 956-60, 104 S. Ct. at 2846-48.

The Supreme Court has thus recognized the dangers inherent in third party standing, yet has also recognized that third party standing may at times be appropriate. While the Justices have frequently disagreed on the proper outcomes in third party standing cases, the Court's opinions do give federal courts rather clear guidance on what factors are relevant in determining whether to make an exception to the general rule. Where a plaintiff asserting third party standing has suffered concrete, redressable injury (that is, the plaintiff has Article III standing), federal courts are to examine at least three additional factual elements before allowing the suit to proceed. Caplin & Drysdale, 491 U.S. at 623 n. 3, 109 S. Ct. at 2651 n. 3. First, the court must examine the relationship between the plaintiff and the third party whose rights are asserted; second, the court must consider the ability of the third party to advance its own rights--whether some obstacle impedes the rightholder's own suit; and third, the court must inquire into the impact on third party interests--whether the plaintiff and the third party have consistent interests. Id.

The Supreme Court has been less clear, however, about what to do with these factors. Its jurisprudence contains seemingly inconsistent strains about whether the factors, especially the "obstacle" factor, are in fact prerequisites to third party standing, or whether courts are instead to balance them. In some cases, the Court has explicitly or implicitly held that an obstacle to the rightholder's suit is not an absolute requirement for third party standing. In Caplin & Drysdale, for example, the Court held that a lawyer had third party standing to raise the Sixth Amendment rights of a client when challenging a statute that might have inhibited the client from paying his attorneys' fees. The Court concluded that even though a criminal defendant suffers no serious obstacles to advancing his or her own claim, the other two factors weighed strongly enough that the lawyer had standing. Id. Similarly, the Court has held that in First Amendment overbreadth challenges, the danger of chilling expression is so important that the showing of an obstacle is not required. Munson, 467 U.S. at 957, 104 S. Ct. at 2847 ("Although [failure to show an obstacle] might defeat a party's standing outside the First Amendment context, this Court has not found the argument dispositive in determining whether standing exists to challenge a statute that allegedly chills free speech."). See also Virginia v. American Booksellers Ass'n, 484 U.S. 383, 392-93, 108 S. Ct. 636, 642, 98 L. Ed. 2d 782 (1988) (no inquiry into obstacle in summarily upholding booksellers' standing to raise bookbuyers' First Amendment rights in facial challenge to statute).

On the other hand, in Powers v. Ohio, which upheld the standing of a litigant to raise the Equal Protection claims of jurors peremptorily challenged due to their race, the Court's language seemed to require certain showings from would-be third party claimants:

We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an "injury in fact," thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute ...; the litigant must have a close relation to the third party ...; and there must exist some hindrance to the third party's ability to protect his or her own interests....

111 S. Ct. at 1370-71 (citations omitted).⁷  Despite this language, however, we very much doubt that the Court in Powers intended silently to overrule its standing holdings in cases such as Caplin & Drysdale, Munson, and American Booksellers, especially in a case where it in fact allowed third party standing. Rather, the discussion in Powers may merely reflect that where, as in Powers, all three conditions exist, the Court will recognize third party standing.

Furthermore, the Caplin & Drysdale balancing approach has the virtue of incorporating the strength of the showings on each factor. For example, obstacles to suit do not come in one size. Even if an obstacle to the third party's suit exists, surely the severity of the hindrance is relevant. Similarly, the extent of potential conflicts of interests between the plaintiff and the third party whose rights are asserted matters a good deal. While it may be that standing need not be denied because of a slight, essentially theoretical conflict of interest, we have held that genuine conflicts strongly counsel against third party standing. See Polaroid Corp. v. Disney, 862 F.2d 987, 1000 (3d Cir. 1988).

In short, we read the body of Supreme Court precedent as (1) identifying factors that are relevant to determining third party standing and (2) rendering an overall balance of factors dispositive.⁸  Moreover, we do not read the list of factors in Powers and Caplin & Drysdale as exhaustive; in some cases, other factors may also be relevant to the ultimate prudential decision. For example, the Supreme Court has considered First Amendment cases different (or at least courts must balance differently) because of the overarching fear of chilling expression. We too will consider the potential chilling in this case, even though Essex County's claim is not a conventional one of statutory overbreadth. Another factor we believe that the Court would deem relevant is whether hearing a suit between state governmental units may conflict with federal courts' traditional federalism concerns about interfering with essentially state matters. We will therefore address that consideration also. All the while we will bear in mind that third party standing is exceptional: the burden is on the County to establish that it has third party standing, not on the defendant to rebut a presumption of third party standing.

We turn to the first consideration: whether obstacles blocked Warner Brothers' own suit. When the person whose rights were allegedly violated is impeded from bringing his or her own suit, courts cannot be assured that the rightholder believes that the right is not in fact at stake or is unimportant, and so a usual reason for denying third party standing may not hold. Singleton, 428 U.S. at 116, 96 S. Ct. at 2875. Obviously, a legal or physical inability to bring suit qualifies as an obstacle. For example, in Hodel v. Irving, 481 U.S. at 711-12, 107 S. Ct. at 2080-81, the Court ruled that Indian plaintiffs had standing to assert that their decedents' right to pass property at death had been statutorily taken without just compensation. The dead certainly could not assert their own rights, and the Court noted that because the statutory executor (the Secretary of the Interior) was charged with enforcing the statute, he could "hardly be expected to assert [plaintiffs'] rights." Id. at 711, 107 S. Ct. at 2081.

But the cases do not insist on an absolute impossibility of suit. At the other end of the spectrum, a practical disincentive to sue may suffice, although a mere disincentive makes for a less persuasive showing than an affirmative impediment. For example, just last Term in Powers v. Ohio, 111 S. Ct. at 1372-73, the Supreme Court noted that although a juror unconstitutionally excluded from a venire has the legal right to sue on his or her own behalf, as a practical matter such challenges are rare because the practical obstacles are daunting. Declaratory or injunctive relief against a particular prosecutor is unlikely because the violation is unlikely to recur, and the financial stake in the litigation is small relative to the costs of litigation. The Court concluded that a litigant has third party standing to raise an excluded venireperson's rights in part because the juror "possess [es] little incentive to set in motion the arduous process needed to vindicate his own rights." Id. at 1373.

Similarly, in Singleton v. Wulff, 428 U.S. at 115-18, 96 S. Ct. at 2874-76, the plurality held that doctors had standing to raise their patients' claims that a statute restricting abortion funding violated their constitutional rights. Justice Blackmun's opinion noted that a woman's concern for privacy might disincline her from suing, and that each woman's case would be physically, although not legally, mooted. The plurality conceded the dissent's point that those obstacles were not insurmountable (a pseudonymous or class action suit was possible, and a woman who gave birth might press her claim as "capable of repetition yet evading review"), but held that the doctors had standing nonetheless.

Here, Warner Brothers certainly faced no legal impediment to its own suit; the only question is whether it lacked sufficient practical incentive to sue. As Essex County notes, Warner Brothers was in a time bind and it easily located an acceptable alternative locale. But the change in venues must have inconvenienced Warner Brothers somewhat. More significantly, Warner Brothers is a major motion picture studio, and because movies with legal themes or courthouse scenes have become quite common, a precedent denying filming based on objectionable scene content might well disturb it.⁹  From a prospective perspective, then, Warner Brothers did have some and probably much reason to sue.

In sum, Warner Brothers faced no affirmative obstacle to suing. While it may have had limited practical incentive to sue, that disincentive was hardly so overwhelming that it weighs significantly in favor of third party standing.

D. The Relationship Between Warner Brothers and Essex County and The Consistency of Their Interests

The cases also search for a "relationship between the litigant and the third party ... such that the former is fully, or very nearly, as effective a proponent of the right as the latter." Powers, 111 S. Ct. at 1372 (quoting Singleton, 428 U.S. at 115, 96 S. Ct. at 2874). Standing is more likely if the plaintiff has some sort of relationship "of special consequence" with the third party, Caplin & Drysdale, 491 U.S. at 623 n. 3, 109 S. Ct. at 2651 n. 3, such as doctor-patient as in Singleton, 428 U.S. at 117, 96 S. Ct. at 2875, or lawyer-client as in Caplin & Drysdale, 491 U.S. at 623 n. 3, 109 S. Ct. at 2651 n. 3, and United States Dep't of Labor v. Triplett, 494 U.S. 715, 720-21, 110 S. Ct. 1428, 1432, 108 L. Ed. 2d 701 (1990) (lawyer has third party standing to challenge a fee restriction by raising client's due process rights). In such cases, the plaintiff and the third party are more likely to share the same concerns, and the strength of advocacy of the third party's rights will not be diluted. See also Frissell v. Rizzo, 597 F.2d 840, 849 (3d Cir. 1979) (" [Intimate relationships] provide strong circumstantial guarantees of community of interest.").

But a close personal relationship is neither necessary nor sufficient for third party standing. Even a close relative will not be heard to raise positions contrary to the interests of the third party whose rights he or she claims to represent: the litigant would then hardly be a vigorous advocate of the third party's position. See, for example, Gilmore v. Utah, 429 U.S. 1012, 97 S. Ct. 436, 50 L. Ed. 2d 632 (1976) (convicted murderer's mother could not seek stay of execution where murderer himself knowingly and intelligently waived his right to appeal). Moreover, the relationship between the third party and the plaintiff only counts insofar as it is linked to the right asserted, for it is when "the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue [that] the court can at least be sure that its construction of the right is not unnecessary...." Singleton, 428 U.S. at 114-15, 96 S. Ct. at 2874.

The key aspects of the "relationship" prong are thus a common link to the right asserted, consistency of the parties' interests, and effective advocacy--not the intimacy of the relationship per se. Hence the Supreme Court in Powers v. Ohio concluded that a litigant has third party standing to raise the rights of an excluded juror even though the two do not know each other personally. 111 S. Ct. at 1372 (voir dire establishes bond of trust between party and juror; both have common interests in eliminating racial discrimination from the courtroom and maintaining confidence in the judicial system). Similarly, and perhaps most relevantly to this case, the Court has frequently found that "vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market." Craig v. Boren, 429 U.S. at 195, 97 S. Ct. at 456. See also Eisenstadt v. Baird, 405 U.S. 438, 443-46, 92 S. Ct. 1029, 1033-34, 31 L. Ed. 2d 349 (1972) (distributor of contraceptives may raise rights of unmarried distributees). As Justice Scalia recently wrote for the Court in Triplett:

When ... enforcement of a restriction against the litigant prevents a third party from entering into a relationship with the litigant (typically a contractual relationship), to which relationship the third party has a legal entitlement (typically a constitutional entitlement), third party standing has been held to exist.

494 U.S. at 720, 110 S. Ct. at 1432.

The market access cases are consistent with the general standards of third party standing. In such cases, the right that the seller is asserting (the buyer's right to buy) is inseparably linked with the vendor-vendee market relationship. Also, the seller and an aggrieved would-be buyer ordinarily have identical interests. Moreover, because the vendor's monetary interests are greater, it has more incentive to sue, and its advocacy will be at least as vigorous as the vendee's. Of course, a nominal plaintiff could be sought and a class action brought, but recognizing third party standing instead costs little in terms of effective advocacy because the claim would be representative anyway. Singleton, 428 U.S. at 117-18, 96 S. Ct. at 2875-76; Craig, 429 U.S. at 194, 97 S. Ct. at 455.

Applying these principles to this case, Warner Brothers and Essex County certainly do not have an intimate familial or advisorial relationship, but that is not dispositive. And the licensor-licensee relationship between Essex County and Warner Brothers is analogous to the vendor-vendee relationship in Craig and the distributor-distributee relationship in Eisenstadt. But just as the general rule against third party standing does not apply where its assumptions do not hold, Singleton, 428 U.S. at 114-15, 96 S. Ct. at 2874, so a usual exception to that general rule should not apply where its assumptions do not hold. In this case, a critical assumption behind the market access exception summarized in Triplett--namely, an identity of interests--does not obtain.¹⁰ 

In most vendor-vendee or other commercial relationships we can assume that the interests of the vendor and vendee fully (or nearly fully) coincide when a sale is prevented. Here, however, Warner Brothers' interests potentially diverged from the County's in important ways. No doubt, Warner Brothers' ultimate preference for free (or at least non-viewpoint-discriminatory) access to film scenes in courthouses is congruent with the County's preference. And the County, as much as Warner Brothers, is probably displeased at the eventual result of the suit (the banning of all filming): Essex County will lose revenue and Warner Brothers has lost a filming venue.

But it does not follow that the two's views coincided at the time suit was brought. Essex County had suffered a large and certain financial loss, while its future losses from the suit failing or resulting in a Pyrrhic victory were speculative. Although the County too must have (or at least should have) considered the possibility of legal victory leading to an across-the-board ban on filming instead of unrestricted filming, surely the definite $250,000 injury loomed large compared to the possible future costs of a decision to ban all filming. In contrast, Warner Brothers had suffered little past injury and may have been much more concerned that the suit would fail in court (creating an undesirable legal precedent) or backfire in practice. Additionally, for a variety of reasons, Warner Brothers may simply not have wanted to ruffle the feathers of the New Jersey judiciary any further, especially when approaching the County after the Chief Justice's initial rejection at least appeared devious.

Furthermore, as noted above, in most cases the seller expects many repeated sales to different customers. The seller therefore has a greater monetary interest at stake than each individual customer, who have limited incentives to sue. Customers' comparatively limited incentive may also underlie the general exception allowing sellers to sue on behalf of their customers. The transaction here was singular, however, and, as noted above, Warner Brothers possessed more than a typical customer's incentive to sue.

In sum, Warner Brothers' decision not to sue might have been due solely to its limited incentives to sue (as the County suggests). But more likely, Warner Brothers was skeptical about the legal merits of the suit or had concerns about the costs and risks involved (as the Chief Justice argues). Most probably, all these considerations entered into Warner Brothers' calculus. Thus, although the County's advocacy of its own interests has been quite competent and extremely vigorous, we fear that the County may not have adequately advocated Warner Brothers' interests.¹¹  In such circumstances, we are disinclined to allow third party standing, absent strong countervailing factors in favor of it. See also Polaroid, 862 F.2d at 1000 (genuine conflict of interest "weighs heavily against" third party standing); Frissell, 597 F.2d at 848-49 (risk of conflict of interest is important, though not dispositive, factor against third party standing).

E. Factors Unique to First Amendment Litigation

One such countervailing factor might have been the First Amendment basis of this suit. The Supreme Court rather freely grants standing to raise overbreadth claims, on the ground that an overbroad statute or regulation may chill the expression of others not before the court. See, for example, American Booksellers, 108 S. Ct. at 642; Munson, 467 U.S. at 956-60, 104 S. Ct. at 2846-48. In such cases, application of ordinary third party standing rules "would have an intolerable, inhibitory effect on freedom of speech." Eisenstadt v. Baird, 405 U.S. at 445 n. 5, 92 S. Ct. at 1034 n. 5.

In this case, the County argues that Chief Justice Wilentz's decision has had the effect of deterring not only Warner Brothers but all other would-be filmers of movies with controversial scenes or themes from making films in real courthouse surroundings. While the County concedes that any such chill might be limited to New Jersey courthouses, in the County's view, even that geographically limited chill poses too much of a threat to free expression. The County also contends that the chill is not merely theoretical, but actually demonstrated. It notes that no studios sought permission to film in New Jersey courthouses between the Chief Justice's decision not to permit filming of the "Bonfire" scene and his subsequent suspension of all commercial filming. The Chief Justice counters that even if the County's factual claim is true (it cited no record basis), virtually all filming in New Jersey had come to a halt because a key union was on strike.

At all events, the overbreadth cases are not on point here. The County does not challenge a statute, a regulation, or even a general policy of the New Jersey judiciary. Rather, it complains about a specific ruling. Before the Chief Justice's "Bonfire" decision, no general policy about the content of films existed. After this litigation began, the Chief Justice did implement a new permit committee system that contained general policies that could conceivably face First Amendment challenge on grounds of overbreadth and inhibition of expression. But the County deliberately and explicitly chose not to challenge the committee system, even when the district court suggested that possibility.

In our view, if Essex or another county (or better, a filmmaker) had brought a challenge to the permit committee system, the overbreadth cases might well counsel in favor of according third party standing.¹²  But here the County is not suing to vindicate the rights of filmmakers in general; instead it raises the rights of one third party (Warner Brothers). Having made that strategic choice, the County cannot now complain when we inquire into whether Warner Brothers could have brought the claim itself and whether the County's interests conflict with Warner Brothers'. There are significant First Amendment concerns at stake in this case, including chilling concerns not directly raised by the complaint. But we must also concern ourselves with proper adversarial presentation of the claims that the County's complaint does actually raise. Accordingly, we do not believe that in this case First Amendment considerations trump our other concerns about recognizing third party standing.

F. Effect of the County Versus State Nature of the Suit

Federalism is the final factor that we think necessary to consider. Chief Justice Wilentz strongly presses upon us the federal courts' longstanding reluctance to inject themselves into intra-state-government disputes. Here, of course, a county (a subdivision of the state) is suing the state's Chief Justice (the head of a branch of state government). In the Chief Justice's view, of all the possible representatives to bring a third party action against a state officer, a county is among the least appropriate.

In support of that position, the Chief Justice cites case law dating from Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 660-61, 4 L. Ed. 629 (1819), which holds that counties, municipalities, and other subdivisions cannot assert constitutional claims against their own state governments. See, for example, Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40, 53 S. Ct. 431, 432, 77 L. Ed. 1015 (1932) (municipality, as creation of the state, may not invoke constitutional privileges or immunities against its creator); City of New York v. Richardson, 473 F.2d 923, 929 (2d Cir. 1973); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 233 (9th Cir. 1980). Judicial support for this rule may be waning with time. See, for example, City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 449 U.S. 1039, 1041-42, 101 S. Ct. 619, 620-21, 66 L. Ed. 2d 502 (1980) (White, joined by Marshall, dissenting from denial of certiorari); Rogers v. Brockette, 588 F.2d 1057, 1067-71 (5th Cir. 1979). But the rule may remain the law of the land, at least absent state waiver, which is probably not present here.¹³  The upshot is that under current law, at least, Essex County probably could not succeed in suing the Chief Justice for violating its own rights of free expression.

Of course, that is not this case: the County does not sue to vindicate its own First Amendment rights. But the Chief Justice argues that those cases, which frequently recite that counties and cities have no "standing" to sue their states, are also relevant to the question of third party standing. Although we agree with the County that these cases may not be standing cases (in the modern sense of the term) but instead holdings on the merits, see Rogers v. Brockette, 588 F.2d at 1067-71, we agree with the Chief Justice that the cases nevertheless reflect the general reluctance of federal courts to meddle in disputes between state governmental units. That reluctance must certainly factor into our prudential balance.

The County contends that this case involves a First Amendment claim, not a dispute over the structure of state government (where federalism implications are especially severe). But the case is also essentially about how the New Jersey judiciary controls access to and use of its own courthouses. While we are not endorsing a policy of federal court abstention from all suits between state governmental actors, we also do not wade into such frays enthusiastically, and we must be certain not to adjudicate them unnecessarily.

In ultimately balancing the factors, we return to the purposes of the general rule against third party standing. In this case, it is quite possible that the district court pronounced unnecessarily on a rather difficult constitutional issue of first impression. Warner Brothers' claim may never have come before any court if the County had not raised it. Our concern is heightened because Warner Brothers had only minor obstacles to its own suit, and we perceive significant potential conflicts of interest between it and the County--conflicts which may mean that the County's zealous advocacy of its own case was not an adequate presentation of Warner Brothers' position regarding its rights. When we also factor in federalism concerns and bear in mind that third party standing is exceptional, the balance is clearly tipped, and we conclude that the plaintiffs here lacked third party standing to raise Warner Brothers' First Amendment rights.

We hold that Essex County and its county executive lack third party standing to sue for harm caused by Chief Justice Wilentz's alleged violation of the First Amendment rights of Warner Brothers. Because that holding applies to all claims in the plaintiffs' complaint, we will vacate both the judgment of the district court with respect to the merits and its order for attorneys' fees, and we will direct the district court to dismiss the complaint. Costs will be taxed against County Executive Amato and the County of Essex.