Davis, J., concurring:
In this proceeding the majority opinion has issued a writ of prohibition that prevents the circuit court from allowing John Edens (hereinafter referred to as Mr. Edens) from pursuing a common law cause of action against Abraham Linc Corporation (hereinafter referred to as Abraham Linc). I concur in the decision to issue the writ. However, as illustrated below, I believe the writ should have issued for another reason.
[s]tanding is a jurisdictional requirement that cannot be waived,
and may be brought up at any time in a proceeding. Franklin D. Cleckley,
Robin Jean Davis & Louis J. Palmer, Litigation Handbook on West Virginia
Rules of Civil Procedure, § 12(b), p. 21 (Supp. 2004). The decisions
of this Court and other jurisdictions have pointed out that an appellate
court has the inherent authority and duty to sua sponte address the
issue of standing, even when the parties have failed to raise the issue at
the trial court level or during a proceeding before the appellate court. See State
ex rel. Youngblood v. Sanders, 212 W. Va. 885, 894, 575 S.E.2d 864,
575 (2002) (Davis, J., concurring) ([T]his Court ha[s] the authority
and the duty to address the issue of standing . . . sua sponte.);
Syl. pt. 2, in part, James M.B. v. Carolyn M., 193 W. Va. 289,
456 S.E.2d 16 (1995) (Where neither party to an appeal raises, briefs,
or argues a jurisdictional question presented, this Court has the inherent
power and duty to determine unilaterally its authority to hear a particular
case. Parties cannot confer jurisdiction on this Court directly or indirectly
where it is otherwise lacking.). (See
footnote 1) It is my opinion that this Court should have sua sponte invoked the issue
of standing, and resolved this case on that issue.
The decisions of this Court have recognized two types of standing inquiries. First, the issue of standing may be presented in the context of a litigant asserting an alleged right that is unique to him or her. This is known as first party standing[.] Romano v. Harrington, 664 F. Supp. 675, 679 (E.D.N.Y. 1987). In this specific context, we articulated the elements for establishing standing in syllabus point 5 of Findley as follows:
is comprised of three elements: First, the party attempting to establish standing
must have suffered an injury-in-fact -- an invasion of
a legally protected interest which is (a) concrete and particularized and (b)
actual or imminent and not conjectural or hypothetical. Second, there must be
a causal connection between the injury and the conduct forming the basis of the
lawsuit. Third, it must be likely that the injury will be redressed through a
favorable decision of the court.
213 W. Va. 80, 576 S.E.2d 807. (See footnote 2)
The second context in which standing may be analyzed occurs when a litigant seeks to assert the rights of a third party. This standing issue is also commonly known as jus tertii standing. Pennsylvania Psych. Soc. v. Green Spring Health Servs., Inc., 280 F.3d 278, 287 n.7 (3rd Cir. 2002). In this situation [i]t is a well-established rule that a litigant may assert only his own legal rights and interests and cannot rest a claim to relief on the legal rights or interests of third parties. (See footnote 3) Coalition of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153, 1163 (9th Cir. 2002). We have previously noted that
[t]raditionally, courts have been reluctant to allow persons to claim standing to vindicate the rights of a third party on the grounds that third parties are generally the most effective advocates of their own rights and that such litigation will result in an unnecessary adjudication of rights which the holder either does not wish to assert or will be able to enjoy regardless of the outcome of the case.
Snyder v. Callaghan, 168 W. Va. 265, 279, 284 S.E.2d 241, 250
(1981) (citation omitted). See also State ex rel. Leung v. Sanders,
213 W. Va. 569, 578, 584 S.E.2d 203, 212 (2003) (per curiam) (In
light of our clear and long-standing precedent against third-party standing,
the circuit court committed clear legal error in permitting Ms. Schell to
litigate Dr. Wanger's and Shenandoah's potential rights. (footnote
omitted)); Board of Educ. of County of Taylor v. Board of Educ. of County
of Marion, 213 W. Va. 182, 189, 578 S.E.2d 376, 383 (2003) (To
the extent that the transfer request form used by the Marion County Board
contains a similar clause, the Taylor County Board is simply without standing
to seek its enforcement.); Kessel v. Leavitt, 204 W. Va. 95,
117, 511 S.E.2d 720, 742 (1998) ([W]e discern [no] authority to permit
a defendant [standing] to challenge the personal jurisdiction of a codefendant
when that codefendant, by his/her acts or omissions, has waived his/her right
to challenge such personal jurisdiction.); Guido v. Guido, 202
W. Va. 198, 203, 503 S.E.2d 511, 516 (1998) (per curiam) (In the
instant matter it is quite clear that Mr. Guido lacks standing to bring any
appeal issues which directly involve his parents. He has no justiciable interest
in the claims of his parents.); West Virginia AAA Statewide Ass'n
v. Public Serv. Comm'n of West Virginia, 186 W. Va. 287, 288 n.3,
412 S.E.2d 481, 482 n.3 (1991) (Because appellant is not an entity
who is subject to the tariffs at issue, AAA does not have standing to raise
procedural issues pertaining to a PSC-administered rate increase.).
While this Court has recognized exceptions to the general rule that a litigant may not assert the rights of a third party, we have never articulated a general jus tertii standing test for determining whether a litigant may assert the rights of a third party. See, e.g., Local Div. No. 812 of Clarksburg, W. Va., of Amalgamated Transit Union v. Central West Virginia Transit Auth., 179 W. Va. 31, 34 n.2, 365 S.E.2d 76, 79 n.2 (1987) ([L]abor organization may sue or be sued as an entity and in behalf of the employees whom it represents.); Syl. pt. 2, Snyder v. Callaghan, 168 W. Va. 265, 284 S.E.2d 241 (1981) (An association which has suffered no injury itself, but whose members have been injured as a result of the challenged action, may have standing to sue solely as the representative of its members when: (1) its members would have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.); Syl. pt. 2, Shobe v. Latimer, 162 W. Va. 779, 253 S.E.2d 54 (1979) (For standing under the Declaratory Judgments Act, it is not essential that a party have a personal legal right or interest.); Tug Valley Recovery Ctr., Inc. v. Mingo County Comm'n, 164 W. Va. 94, 103, 261 S.E.2d 165, 170-171 (1979) (holding that any interested resident or taxpayer has standing to contest assessment of land not belonging to him or her). Because of the facts presented in the instant case, I believe the Court was obligated to set out a general test for determining when a litigant may assert the rights of a third party.
Under the first prong of the Powers test, it is only possible to find third party standing when there is also an injury in fact alleged by the first party plaintiff. Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 299 (3rd Cir. 2003). Thus, a party must show that he or she suffered a concrete injury[.] Wauchope v. United States Dep't of State, 985 F.2d 1407, 1411 (9th Cir. 1993). To satisfy the second prong of Powers a litigant must show that the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, . . . [or] the relationship between the litigant and the third party [is] such that the former is fully, or very nearly, as effective a proponent of the right as the latter. Singleton v. Wulff, 428 U.S. 106, 114-15, 96 S. Ct. 2868, 2874, 49 L. Ed. 2d 826 (1976). Under the third prong of Powers, it must be shown that there is some genuine obstacle to [the third party's] assertion [of his rights.] Singleton, 428 U.S. at 116, 96 S. Ct. at 2875.
I believe that the Powers factors
are sound for assessing whether a litigant may assert the rights of a third
party. Therefore, I believe the following principle of law should have been
adopted in this case: The jus tertii standing requirements that must
be established by a litigant seeking to assert the rights of a third party are: (1) the
litigant must have suffered an injury-in-fact; (2) the litigant must have
a close relation to the third party; and (3) there must exist some hindrance
to the third party's ability to protect his/her own interests.
D. Applying Jus Tertii Standing Principles to Mr. Edens'
Applying the jus tertii standing requirements to the facts of this case, I need go no further than the first requirement. In order for Mr. Edens to litigate the employment status of Mr. Johnson, he must establish an injury-in-fact that flows from Mr. Johnson's employment status as an independent contractor. This he cannot do.
In this proceeding there
are no allegations that Abraham Linc failed to inform the Workers' Compensation
Commission that Mr. Edens was an employee. There is no dispute that after
Mr. Edens was injured he obtained workers' compensation benefits. Mr. Edens
was covered by Abraham Linc's compliance with the reporting and premium payment
requirements of the Workers' Compensation Commission. (See
footnote 7) Consequently, the fact that Abraham Linc listed
Mr. Johnson as an independent contractor and paid no workers' compensation
premiums on his behalf did not cause an injury-in-fact to Mr. Edens. Absent
specific facts establishing distinct and palpable injuries fairly traceable
to [Mr. Johnson's employment status], [Mr. Edens] cannot satisfy [his] burden
at the summary judgment stage to establish the injury in fact requirement
for [jus tertii] standing[.] Arkansas ACORN Fair Housing, Inc. v.
Greystone Dev., Ltd. Co., 160 F.3d 433, 435 (8th Cir. 1998).
Thus, Mr. Edens does not have jus tertii standing on the dispositive issue
that would permit a common law negligence action to proceed against Abraham
Linc. Under these circumstances, Abraham Linc is entitled to the writ. See Burke
v. City of Charleston, 139 F.3d 401, 405 n.2 (4th Cir. 1998)
([J]us tertii plaintiff is obligated as an initial matter to [establish]
a distinct and palpable injury[.]).
In view of the foregoing, I concur.
3 [and 6] of Article VIII of the West Virginia Constitution refers to the word "controversy[.]" One of the incidents
of [the] controversy requirement is that a litigant have "standing[.]"
Coleman, 194 W. Va. at 95 n.6, 459 S.E.2d at 373 n.6.