Gary Dickey Jr. v. Iowa Ethics and Campaign Disclosure Board

IN THE SUPREME COURT OF IOWA
No. 19–0094
Filed May 1, 2020
GARY DICKEY JR.,
Appellant,
vs.
IOWA ETHICS AND CAMPAIGN DISCLOSURE BOARD,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Jeanie K.
Vaudt, Judge.
A citizen appeals the dismissal of his petition for judicial review of a
ruling by the Iowa Ethics and Campaign Disclosure Board. AFFIRMED.
Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and David M. Ranscht,
Assistant Attorney General, for appellee.
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MANSFIELD, Justice.
I. Introduction.
At the end of 2017, the Governor and her spouse traveled to
Memphis, Tennessee, on a corporate jet. An individual donor to her
campaign paid for the trip. While in Memphis, the Governor engaged in
activities related to her 2018 election campaign and also attended the
Liberty Bowl football game. Her campaign committee reported the trip as
a $2880.00 campaign contribution from the individual, relying on an Iowa
Ethics and Campaign Disclosure Board (Board) rule that requires a
candidate who receives noncommercial air transportation from a
corporation to reimburse the corporation at the rate of the undiscounted
coach class airfare.
An attorney with campaign finance experience complained to the
Board that the Governor had underreported the fair market value of the
trip. When the Board dismissed the complaint, the attorney petitioned for
judicial review pursuant to Iowa Code section 17A.19 (2017). The district
court dismissed the petition for lack of standing, and the court of appeals
affirmed.
On further review, we affirm the judgment of the district court and
the decision of the court of appeals, substantially for the reasons set forth
in their cogent opinions. We conclude the attorney is not an “aggrieved or
adversely affected” party within the meaning of Iowa Code section 17A.19.
While parties who allege they are missing information that the campaign
laws require to be disclosed may have standing, see FEC v. Akins, 524 U.S.
11, 21, 118 S. Ct. 1777, 1784 (1998), this case is different. The attorney
in this case does not allege he is lacking any relevant information and
merely voices a disagreement over the reporting method used by the
candidate committee.
3
II. Facts and Procedural History.
On December 30, 2017, the Governor and her spouse traveled to
Memphis, Tennessee, on a corporate private jet. 1 The jet was owned by
Sedgwick Claims Management Services, Inc.—a Memphis-based company
that does business with the state, administering workers’ compensation
claims filed by injured state employees. Sedgwick’s President and CEO,
David North, paid for the flight by reimbursing the company for the cost of
the private jet service provided. While in Memphis, the Governor engaged
in activities related to her election campaign and also attended the Liberty
Bowl football game in which Iowa State University was a participant. 2
To comply with campaign disclosure requirements, on its January
19, 2018 disclosure report, the Kim Reynolds for Iowa candidate
committee reported an in-kind contribution of $2880.00 as the fair market
value of the airfare. See Iowa Code §§ 68A.402–.402A (2017) (outlining
disclosure requirement and information to be disclosed). The committee
listed the donor, North; the description of the in-kind contribution,
travel/flight; and the estimated fair market value, $2880.00.
After a news article appeared regarding the Governor’s late-
December trip, attorney Gary Dickey filed a complaint with the Board. In
the complaint, Dickey alleged the committee underreported the fair market
value of the in-kind contribution from North. Dickey claimed that the fair
market value of the round-trip service for the Governor and her spouse on
1Two adult children of the Governor and her spouse also came on the trip but did
not participate in campaign activities. Another citizen filed a complaint with the Board
about that issue. The Board dismissed that complaint, finding that Iowa law permitted
the adult children’s acceptance of the plane trip as a gift. See Iowa Code §§ 68B.2(11)
(limiting “[i]mmediate family members” to “the spouse and dependent children of a public
official or public employee”), .22(1) (prohibiting a public official “or that person’s
immediate family member” from accepting or receiving a gift “from a restricted donor”).
2The Governor’s family paid personally for their football tickets.
4
the private jet was higher than $2880.00. To support this assertion,
Dickey attached three round-trip quotes for private charter seats on a
Gulfstream G200, the kind of jet on which the Governor and her spouse
had flown to Memphis on December 30, 2017.
The matter went before the Board on September 20, 2018. After
discussion, the Board dismissed the complaint. In its written order of
dismissal, the Board relied in part on Iowa Administrative Code
rule 351—4.47(4)(a), which states that when a candidate “uses
noncommercial air transportation made available by a corporate entity,”
the candidate shall reimburse the corporate entity in advance for “the
coach class airfare (without discounts)” if the destination is served by
regularly scheduled commercial service. The Board added,
While the rule expressly allows a candidate . . . to
reimburse a corporate entity for the use of a corporate
airplane, we never intended for this rule to prohibit a
candidate’s committee or permissible contributor to similarly
reimburse a corporation for the fair market value of the use of
an airplane.
In sum, the Board found no indication that the Governor’s campaign
committee had violated any law.
On October 9, Dickey filed a petition for judicial review in the District
Court for Polk County. The petition alleged that the Board had improperly
relied on rule 351—4.47(4)(a) and Internal Revenue Service regulation
26 C.F.R. § 1.61-21. According to Dickey, based on quotes from three
private jet service providers, the value of the December 30, 2017 round-
trip flight was “far in excess of $2,880.00.” Dickey sought reversal and
remand.
The Board filed a pre-answer motion to dismiss. It urged that Dickey
lacked standing to seek judicial review of the Board’s ruling. Dickey
resisted the motion, and the court heard oral argument on November 16,
5
2018. Thereafter, on December 26, the district court granted the Board’s
motion. The court reasoned in part as follows,
Regardless of which party is more correct about
valuation, Mr. Dickey has not been injured by the Board’s
action. The committee has reported the in-kind contribution
and its estimated value. Mr. Dickey has access to that
reported value and is free to disagree with that reported value.
...
....
. . . Mr. Dickey has not been deprived of any
information. He simply disagrees with the reported valuation.
The quotes he obtained demonstrate that he can
independently evaluate the reported value.
Dickey filed a notice of appeal on January 16, 2019. We transferred
the case to the court of appeals. On September 11, the court of appeals
affirmed the district court’s dismissal of Dickey’s petition. The court
concluded, “We agree with the district court Dickey has not demonstrated
‘a specific and injurious effect’ such that he may obtain judicial review of
the Board’s ruling.”
On October 1, Dickey applied for further review, and we granted his
application.
III. Standard of Review.
“We review a decision by the district court to dismiss a case based
on the lack of standing for errors at law.” Hawkeye Foodservice Distrib.
Inc., v. Iowa Educators Corp., 812 N.W.2d 600, 604 (Iowa 2012) (quoting
Godfrey v. State, 752 N.W.2d 413, 417 (Iowa 2008)).
IV. Analysis.
Iowa Code section 68B.33 provides that “[j]udicial review of the
actions of the [B]oard may be sought in accordance with chapter 17A.”
The Iowa Administrative Procedure Act (IAPA), chapter 17A, provides that
“a person or party who is aggrieved or adversely affected by agency action
6
may seek judicial review of such agency action.” Iowa Code § 17A.19.
Thus, to have standing to challenge an administrative action in court
under the IAPA, “the complaining party must (1) have a specific, personal,
and legal interest in the litigation; and (2) the specific interest must be
adversely affected by the agency action in question.” Medco Behavioral
Care Corp. of Iowa v. Iowa Dep’t of Human Servs., 553 N.W.2d 556, 562
(Iowa 1996); see also Polk County v. Iowa State Appeal Bd., 330 N.W.2d
267, 273 (Iowa 1983). Notably, “a person may be a proper party to agency
proceedings and not have standing to obtain judicial review.” Richards v.
Iowa Dep’t of Revenue & Fin., 454 N.W.2d 573, 575 (Iowa 1990).
A “general interest” in the proper enforcement of the law cannot
support standing to obtain judicial review. Id. “A general interest shared
by all citizens in making sure government acts legally is normally
insufficient to support standing . . . .” Godfrey, 752 N.W.2d at 423–24.
For example, in Richards, we held that an individual’s interest in seeing
the tax laws properly enforced was not enough to support standing, but
the pecuniary effects of a higher tax burden due to the improper grant of
a tax exemption to somebody else could be sufficient. 454 N.W.2d at 575–
76.
In this case, Dickey’s petition alleges the Governor and her spouse
flew to Memphis on December 30, 2017, to attend a campaign event and
watch the Liberty Bowl. They traveled on a 2010 Gulfstream jet owned by
Sedgwick, a Memphis-based company that administers workers’
compensation claims filed by injured state employees. The chief executive
officer of the corporation, North, personally reimbursed the corporation for
the use of the plane, and the Governor’s candidate committee reported the
trip as a contribution from the CEO with an estimated fair market value
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of $2880. The petition alleges that the value of the flights taken by the
Governor and her spouse was actually “far in excess of $2,880.”
The petition seeks review of the Board’s decision that the Governor’s
candidate committee properly reported the fair market value of the flights
taken by the Governor and her spouse. The Board found the fair market
value of the trip could be reported using coach class airfare between Des
Moines and Memphis, based on the Board’s own rule 351—4.47(4). 3
Dickey alleges that rule 351—4.47(4) was inapplicable and that the
candidate committee “underreported” fair market value. 4
Critically, for standing purposes, Dickey does not allege that he
lacks any relevant information concerning this December 30 campaign
contribution that took the form of a plane trip. In fact, Dickey includes
considerable detail in his petition and also incorporates by reference a
newspaper article with additional detail. Dickey contends only that a
higher value of the flights should have been reported than actually was
reported.
Dickey’s declaration is of the same ilk. It too does not suggest that
he personally is injured by deficient campaign reporting concerning the
3Iowa Administrative Code rule 351—4.47(4) provides in part,
a. Air travel. A candidate, candidate’s agent, or person traveling
on behalf of a candidate who uses noncommercial air transportation made
available by a corporate entity shall, in advance, reimburse the corporate
entity as follows:
(1) Where the destination is served by regularly scheduled
commercial service, the coach class airfare (without discounts).
4Dickey notes that rule 351—4.47(4) by its terms speaks to the amount the
candidate committee must reimburse the corporation for the campaign’s use of the jet,
not the amount the campaign must report as a contribution if another individual
reimburses the corporation for the use of the jet. Of course, even if rule 351—4.47(4) is
limited to its literal terms, this means that North could have contributed $2880 to the
Governor’s campaign committee and the committee could have turned around and paid
$2880 to Sedgwick for the flights. The Board evidently viewed the distinction between
the two scenarios as immaterial.
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December 30 flight. Dickey instead recites in three paragraphs his prior
expertise in advising campaigns. He then states that he “regularly
consult[s] with candidate committee reports filed with the [Board] and the
Federal Election[] Commi[ssion] to aid in [his] evaluation of candidates for
public office.” He adds that he has voted in every Iowa gubernatorial
election since becoming legally eligible to vote, that he reviews campaign
disclosure reports before casting his vote, and that he “find[s] access to
accurate campaign finance information necessary for [him] to evaluate the
gubernatorial candidates and track whether a candidate’s most generous
donors receive special favors in return.”
These general statements about the desirability of accurate
campaign finance reporting, however, are not tied to the specific complaint
in this case. Dickey does not allege that he needs (or needed) any
additional information before deciding whether or not to vote for the
Governor. Dickey does not allege that he lacks (or lacked) any information
relevant to the Governor’s trip to Memphis on December 30. His own
petition describes the mode of travel, whose plane it was, who paid for the
trip, and what the payor’s relationship to the State was.
Perhaps Dickey’s unstated position is that the Board should
abandon rule 351—4.47(4) and develop a different rule for future use. But
that is not what his complaint and petition seek. Dickey did not ask for
rulemaking or a declaratory order. Instead, Dickey’s complaint was
directed at the Governor’s candidate committee alleging specific
underreporting of a dollar amount in regard to a specific trip.
Dickey argues he has standing under the United States Supreme
Court’s decision in FEC v. Akins, 524 U.S. 11, 118 S. Ct. 1777 (1998). In
that case, a group of voters sought judicial review of a Federal Election
Commission (FEC) determination that the American Israel Public Affairs
9
Committee (AIPAC) was not a political committee under federal election
law. Akins, 524 U.S. at 13–14, 118 S. Ct. at 1780–81. The Court found
that the voters had standing because registration as a political committee
would require AIPAC to disclose its donors, contributions, expenditures,
and disbursements. Id. The voters in turn were being injured by lacking
this information. Id. at 20–21, 118 S. Ct. at 1784. As the Court explained,
The “injury in fact” that respondents have suffered
consists of their inability to obtain information—lists of AIPAC
donors (who are, according to AIPAC, its members), and
campaign-related contributions and expenditures—that, on
respondents’ view of the law, the statute requires that AIPAC
make public. There is no reason to doubt their claim that the
information would help them (and others to whom they would
communicate it) to evaluate candidates for public office,
especially candidates who received assistance from AIPAC,
and to evaluate the role that AIPAC’s financial assistance
might play in a specific election. Respondents’ injury
consequently seems concrete and particular.
Id. at 21, 118 S. Ct. at 1784.
This case is different. The relief that Dickey seeks from the Board—
a determination that the Governor’s candidate committee underreported
the fair market value of the trip—will not provide him any additional
information. Dickey already knows the facts about the trip. In fact, he
attached to his complaint three different air charter quotes for a
Gulfstream G200 to support his views that the trip was worth more than
the candidate committee reported. He even came up with his own fair
market value, stating that the seats on the plane should be valued at
“$4,580 on the low-end, $8,458 on the high-end, and an average of
$6,216.”
An administrative decision that the Governor’s candidate committee
underreported the fair market value of the plane trip might result in some
adverse publicity for the Governor. Still, even if a petitioner desired that
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result, it would not be the kind of personal interest that would support
standing. Courts exist to hear claims brought by injured parties; Dickey
is not injured.
As the United States District Court for the District of Columbia has
explained, there is a critical distinction between denials of requests for
information and denials of “requests for information concerning ‘whether
a violation of the law has occurred.’ ” Friends of Animals v. Jewell,
115 F. Supp. 3d 107, 113 (D.D.C. 2015) (quoting Common Cause v. FEC,
108 F.3d 413, 418 (D.C. Cir. 1997)). The complaint in the present case
falls into the latter category, and such requests do not satisfy the injury-
in-fact requirement. Id.; accord Vroom v. FEC, 951 F. Supp. 2d 175, 179
(D.D.C. 2013) (“Mr. Vroom seeks no additional facts but, rather, a legal
determination . . . .”).
In Citizens for Responsibility & Ethics in Washington (CREW) v. FEC,
799 F. Supp. 2d 78 (D.D.C. 2011), a watchdog group complained to the
FEC that a political action committee had disbursed money in travel
expenses to benefit a congressman’s presidential campaign which should
have been reported as a contribution to the campaign. Id. at 81–82. The
FEC dismissed CREW’s complaint, reasoning that at most half the funds
spent by the PAC should have been reported as a contribution to the
campaign, which would have resulted in a de minimis excessive
contribution of only $100. Id. at 83–84. Subsequently, the district court
found that CREW had no standing to pursue judicial review, observing
that “Plaintiffs’ Amended Complaint demands only amended FEC filings to
reclassify disbursements of which they are already aware . . . .” Id. at 89.
That is essentially the situation here. Dickey simply wants the
Board to say that the original filing was wrong and to require the
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Governor’s candidate committee to make an amended filing that values
the plane trip at $6216.
An earlier case involving CREW is also relevant. In Citizens for
Responsibility & Ethics in Washington v. FEC, 401 F. Supp. 2d
115 (D.D.C. 2005), aff’d, 475 F.3d 337 (D.C. Cir. 2007), the watchdog
group had complained about the delivery of a potential donor master list
to the Bush-Cheney reelection campaign, which it contended was an illegal
in-kind contribution. Id. at 116–17. The FEC agreed the contact list
constituted an in-kind contribution but closed the investigation. Id. at
117. CREW then filed a judicial-review complaint. Id. CREW wanted “the
FEC to require the administrative defendants to assign a monetary value
to the list, and to disclose publicly that dollar figure . . . .” Id. The district
court dismissed CREW’s complaint for lacking of standing, reasoning in
part,
Whether the list is worth one hundred dollars or one
thousand, for example, is of no moment because the public
already knows: (1) that an illegal in-kind contribution took
place; (2) that the in-kind contribution was a master contact
list containing the names and contact information of
conservative activists; (3) that the list’s monetary value is
negligible; and (4) the identities of the individuals and
campaign involved in the illegal transaction. This readily
available information, rather than the precise value that
CREW seeks, is what appears to be “useful in voting.”
Id. at 121.
Arguably, Dickey’s position is weaker here. He is not suing as a
watchdog group and has no members’ interests to assert. He can only
assert his own informational interest. His petition and exhibits make clear
that there is no gap in his knowledge regarding the December 30, 2017
trip that would be filled by granting his Board complaint.
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V. Conclusion.
For the foregoing reasons, we affirm the judgment of the district
court and the decision of the court of appeals.
AFFIRMED.
All justices concur except Appel, J., who dissents and McDermott,
J., who takes no part.
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#19–0094, Dickey v. Iowa Ethics & Campaign Disclosure Bd.
APPEL, Justice (dissenting).
I respectfully dissent. The sole issue raised in this case is whether
the Iowa legislature in Iowa Code chapter 68B (2017) established the cause
of action that Gary Dickey asserts in this action. I conclude that the best
interpretation of the statute is that it establishes a statutory right to
disclosure of accurate information and that when inaccurate information
is allegedly provided and the Iowa Ethics and Campaign Disclosure Board
(Board) takes no action, the statutory right may be enforced by Dickey or
any other complainant under the Iowa Administrative Procedures Act
(IAPA).
I. Overview of Relevant Campaign Finance Legislative
Provisions.
A. Disclosure Requirements for In-Kind Contributions. In Iowa
Code section 68A.402A, the legislature imposed substantive requirements
for disclosure of campaign contributions and expenditures by candidate
committees. Iowa Code section 68A.402A(1)(d) requires disclosure of in-
kind contributions, and the committee receiving an in-kind contribution
is required to “report the estimated fair market value of the in-kind
contribution.” If a candidate receives an in-kind contribution but does not
disclose its fair market value in its report, a violation of Iowa Code chapter
68A occurs. Id.
B. Enforcement Provisions. The legislature provided for
enforcement of the substantive provisions of Iowa Code chapter 68A in the
succeeding chapter, Iowa Code chapter 68B. The legislature provided that
“[a]ny person may file a complaint alleging that a . . . committee . . . has
committed a violation of chapter 68A.” Id. § 68B.32B(1). Upon receipt of
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a complaint, the Board staff reviews the complaint to determine “if the
complaint is sufficient as to form.” Id. § 68B.32B(2).
If a complaint is “sufficient as to form,” it is referred “for legal
review.” Id. Upon completion of legal review, the chairperson of the Board
is advised whether, in the opinion of the legal advisor, the complainant
states an allegation which is “legally sufficient.” Id. § 68B.32B(4). After
receiving the opinion of the legal advisor, the chairperson refers the matter
to the Board for a formal determination of the sufficiency of the allegations
in the complaint. Id. § 68B.32B(5).
If the Board determines that the complaint is not sufficient, the
complaint is dismissed, with notice of dismissal stating the reason or
reasons for the dismissal sent to the complainant. Id. § 68B.32B(6). The
Board may, however, initiate an investigation. Id. § 68B.32B(7). If the
Board determines after investigation that there is no probable cause, the
complaint may be dismissed, with notice to the complainant. Id.
§ 68B.32B(9).
If the Board determines there is probable cause, it may initiate a
contested case proceeding. Id. If the Board concludes that a violation
occurred after a contested case hearing, it may issue various remedial
orders. Id. § 68B.32D(1). If a person fails to comply with an action of the
Board, the Board may petition the district court for an order for
enforcement of the action of the Board. Id. § 68B.32D(3).
C. Judicial Review. Iowa Code section 68B.33 is a two-pronged
provision related to judicial oversight. It states, “Judicial review of the
actions of the board may be sought in accordance with chapter 17A.
Judicial enforcement of orders of the board may be sought in accordance
with chapter 17A.” Id. § 68B.33. This provision authorizes judicial review
both of actions and the failure to act by the Board. Iowa Code section
15
17A.19 provides for judicial review of agency action by “a person or party
who is aggrieved or adversely affected by agency action.”
II. Akins, “Informational Standing,” and Legislative Action.
A. Introduction. For the most part, the parties characterize the
question of whether Dickey may challenge the Board’s dismissal of his
complaint as a question of standing. Dickey spends considerable time in
his brief urging that this case involves “informational standing” under the
important case of FEC v. Akins, 524 U.S. 11, 118 S. Ct. 1777 (1998). He
also claims, however, that “[t]he question is whether the statute grants the
plaintiff the cause of action that he asserts.” Bank of Am. Corp. v. City of
Miami, 581 U.S. ___, 137 S. Ct. 1296, 1302 (2017). The Board suggests
that Dickey does not qualify for informational standing under applicable
precedents because he already knows the information which he
purportedly seeks and that his efforts simply amount to an attempt to
force the Board to enforce what Dickey sees as the law against the
candidate committee in this case.
To the extent the question of standing is involved in this case, it
raises an issue of state law. While the United States Constitution in Article
III limits the exercise of judicial power to “cases” and “controversies,” there
is no comparable provision in the Iowa Constitution. U.S. Const. art. III,
§ 2.
With the notable exception of Akins and its progeny, some federal
caselaw has tended to emphasize the limits on access to the federal courts.
In particular, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 563–66, 112
S. Ct. 2130, 2138–39 (1992), the Supreme Court departed from its prior
trajectory by discovering new, more restrictive standing requirements to
be applied in federal courts.
16
State courts as courts of general jurisdiction, however, operate
under a different tradition. See Dep’t of Revenue v. Kuhnlein, 646 So. 2d
717, 720 (Fla. 1994). The state court tradition tends to emphasize a
preference for expeditious determination of controversies on the merits.
See, e.g., Jen Elec., Inc. v. County of Essex, 964 A.2d 790, 801–02 (N.J.
2009) (“ ‘[O]verall we have given due weight to the interests of individual
justice, along with the public interest, always bearing in mind that
throughout our law we have been sweepingly rejecting procedural
frustrations in favor of “just and expeditious determinations on the
ultimate merits” ’ . . . premised on a core concept of New Jersey
jurisprudence, that is, that our ‘rules of procedure were not designed to
create an injustice and added complications but, on the contrary, were
devised and promulgated for the purpose of promoting reasonable
uniformity in the expeditious and even administration of justice.’ ” (first
quoting Crescent Park Tenants Ass’n v. Realty Equities Corp. of N.Y., 275
A.2d 433, 438 (N.J. 1971); and then quoting Handelman v. Handelman,
109 A.2d 797, 802 (N.J. 1954))).
A body of scholarship has emerged suggesting that state courts
should decline to follow the federal model on standing issues in light of
their own constitutional traditions. See, e.g., F. Andrew Hessick, Standing
in Diversity, 65 Ala. L. Rev. 417, 418 (2013) (“One consequence of
understanding standing to be bound up in the merits is that, in cases
involving state law brought under diversity jurisdiction, standing should
turn on state law.”); Jack L. Landau, State Constitutionalism and the Limits
of Judicial Power, 69 Rutgers U. L. Rev. 1309, 1315–16 (2017) [hereinafter
Landau, State Constitutionalism] (“[S]tate courts are mistaken in relying on
federal justiciability doctrine at all in determining the existence of
constitutional limitations on the exercise of state judicial power . . . [since]
17
federal and state courts are different in significant ways . . . [and the]
federal justiciability analysis does not stand up to scrutiny on its own
terms.” (Emphasis omitted.)); Hans A. Linde, The State and the Federal
Courts in Governance: Viva La Différence, 46 Wm. & Mary L. Rev. 1273,
1274 (2005) [hereinafter Linde, State and Federal Courts] (“We should not
assume one common analysis in the face of legal differences that are truly
constitutional—that is to say, ‘constitutive’ of government—and for which
state courts take on responsibilities that federal courts decline.”).
A number of states have used the textual difference between Article
III and provisions of state constitutions to reject the federal standing
jurisprudence. For instance, in Lansing Schools Education Ass’n v.
Lansing Board of Education, 792 N.W.2d 686 (Mich. 2010), the Michigan
Supreme Court declared, “There is no support in either the text of the
Michigan Constitution or in Michigan jurisprudence . . . for recognizing
standing as a constitutional requirement or for adopting the federal
standing doctrine.” Id. at 693. Similarly, the Mississippi Supreme Court
in SASS Muni-V, LLC v. DeSoto County, 170 So. 3d 441 (Miss. 2015),
declared, “ ‘It is well settled that “Mississippi’s standing requirements are
quite liberal” ’ compared to the standing requirements set out in Article III
of the United States Constitution.” Id. at 445–46 (quoting State v. Quitman
County, 807 So. 2d 401, 405 (Miss. 2001)). Indeed, the Mississippi
Supreme Court has stated that “while federal courts adhere to a stringent
definition of standing, limited by Art. 3, § 2 of the United States
Constitution to a review of actual cases and controversies, the Mississippi
Constitution contains no such restrictive language.” Quitman County, 807
So. 2d at 405. Similarly, the New Jersey Supreme Court has observed that
“[u]nlike the Federal Constitution, there is no express language in
New Jersey’s Constitution which confines the exercise of our judicial
18
power to actual cases and controversies.” Crescent Park Tenants Ass’n,
275 A.2d at 437 (citing U.S. Const. art. III, § 2; N.J. Const. art. VI, § 1);
see also ACLU of N.M. v. City of Albuquerque, 188 P.3d 1222, 1226–27
(N.M. 2008); Couey v. Atkins, 355 P.3d 866, 899–900 (Or. 2015) (en banc).
Several states have held that standing generally is determined by
reference to the individual cause of action, approximating older state and
federal caselaw. For instance, in Save Homosassa River Alliance, Inc. v.
Citrus County, 2 So. 3d 329 (Fla. Dist. Ct. App. 2008), in a dissent,
standing was equated with access to a cause of action. Id. at 343 (Pleus,
J., dissenting). Similarly, the North Carolina Supreme Court in Goldston
v. State, 637 S.E.2d 876 (N.C. 2006), declared that access to the court was
dependent upon the cause of action. Id. at 879–80.
Some states, however, have taken the position that standing
requirements under a state constitution are similar to that imposed by
Article III and that, as a result, federal caselaw may be persuasive
authority. See, e.g., Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd., 226
P.3d 567, 569 (Mont. 2010). Even where the question of standing is
prudential rather than jurisdictional, federal caselaw may be used for
guidance on discretionary standing questions. For instance, in Greer v.
Illinois Housing Development Authority, 524 N.E.2d 561 (Ill. 1988), the
Supreme Court of Illinois noted that while it was not required to follow
federal caselaw, Illinois would look to the federal caselaw for guidance
selectively rather than automatically adopting the federal approach
wholesale. Id. at 574. In Dover Historical Society v. City of Dover Planning
Commission, 838 A.2d 1103 (Del. 2003), the Delaware Supreme Court
stated that although it applied the concept of standing as a matter of self-
restraint, Delaware courts generally apply the same standards as the
federal courts. Id. at 1111. The approach that simply looks for state
19
exceptions to federal doctrine has been criticized as “incoherent.” Landau,
State Constitutionalism, 69 Rutgers U. L. Rev. 1324–25.
Even when federal caselaw may be used as guidance on the standing
question, state courts have departed from federal standing doctrine in a
number of important areas. For instance, a number of states have a
“public interest” exception to their prudential standing requirements. See,
e.g., Sears v. Hull, 961 P.2d 1013, 1019 (Ariz. 1998) (en banc) (finding an
exception under state law to waive standing requirements for “issues of
great public importance that are likely to recur”); Higgins v. Hale, 476
N.E.2d 95, 96 (Ind. 1985) (granting standing to a court of appeals case
“[b]ecause the issues involved are of great public interest”); Perella v. Mass.
Tpk. Auth., 772 N.E.2d 70, 73 (Mass. App. Ct. 2002) (exploring
Massachusetts law related to the invocation of public right doctrine in
standing); Narragansett Indian Tribe v. State, 81 A.3d 1106, 1110 (R.I.
2014) (“On rare occasions . . . this Court will overlook the standing
requirement by invoking the so-called ‘substantial public interest’
exception in order to decide the merits of a case of substantial public
importance.”); ATC S., Inc. v. Charleston County, 669 S.E.2d 337, 341 (S.C.
2008) (“In cases which fall within the ambit of important public interest,
standing will be conferred ‘without requiring the plaintiff to show he has
an interest greater than other potential plaintiffs.’ ” (quoting Davis v.
Richland Cty. Council, 642 S.E.2d 740, 742 (S.C. 2007))); Gregory v.
Shurtleff, 299 P.3d 1098, 1102–03 (Utah 2013) (“While it is ‘the usual rule
that one must be personally adversely affected before he has standing to
prosecute an action . . . it is also true this Court may grant standing where
matters of great public interest and societal impact are concerned.’ ”
(quoting Jenkins v. State, 585 P.2d 442, 443 (Utah 1978))); Wash. Nat’l
Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish Cty., 459 P.2d 633, 635
20
(Wash. 1969) (finding exception when “a controversy is of serious public
importance and immediately affects substantial segments of the
population and its outcome will have a direct bearing on the commerce,
finance, labor, industry or agriculture generally”); see also John Dimanno,
Beyond Taxpayers’ Suits: Public Interest Standing in the States, 41 Conn.
L. Rev. 639, 640 (2008) (applying the federal standing requirements and
states’ public interest exception and finding that the public interest
exception is “appropriate in state courts, given the significant differences
in constitutional background, governance structures, and historical
common law developments between federal and state judicial systems”).
But see M. Ryan Harmanis, States’ Stances on Public Interest Standing, 76
Ohio St. L.J. 729, 729 (2015) (analyzing generally the legal and policy
rationales underlying states’ rejection of federal standing doctrine in cases
implicating the public interest exception, yet “concluding that its
underlying rationales are insufficient to warrant bypassing standing’s
requirement of an actual injury”).
Others allow broad taxpayer standing to challenge official action well
beyond the confines of federal caselaw established in Valley Forge
Christian College v. Americans United for Separation of Church & State, Inc.,
454 U.S. 464, 102 S. Ct. 752 (1982). See, e.g., Chapman v. Bevilacqua, 42
S.W.3d 378, 383 (Ark. 2001) (explaining that under Arkansas law, citizens
must only be a citizen and taxpayer to have standing in public fund cases,
noting also that interest for standing in like cases is to be given “a very
broad construction”); Reeder v. Wagner, No. 435, 2008, 2009 WL 1525945,
at *2 (Del. June 2, 2009) (“Even absent the showing of a particularized
injury, however, this Court has recognized in certain cases that a plaintiff
may have standing, as a taxpayer, to enjoin the unlawful expenditure of
public money or the misuse of public property.”); McKee v. Likins, 261
21
N.W.2d 566, 570 (Minn. 1977) (observing that “[i]n contrast with the
Federal courts, it generally has been recognized that a state or local
taxpayer has sufficient interest to challenge illegal expenditures”). See
generally Joshua G. Urquhart, Disfavored Constitution, Passive Virtues?
Linking State Constitutional Fiscal Limitations and Permissive Taxpayer
Standing Doctrines, 81 Fordham L. Rev. 1263 (2012) (contrasting the state
and federal approached regarding taxpayer standing, and expounding on
the theories undergirding each approach).
In addition, states have not necessarily accepted the serpentine
course of federal caselaw on standing. For instance, in the highly
controversial case of Lujan, the majority of the Supreme Court announced
a new and more restrictive approach to standing. 504 U.S. at 572–73, 112
S. Ct. at 2142–43. A number of state courts have rejected application of
Lujan under their state constitutions. See, e.g., City of Greenwood Vill. v.
Petitioners for Proposed City of Centennial, 3 P.3d 427, 437 n.8 (Colo. 2000)
(en banc) (considering the narrowed standing requirements under Lujan
and specifically finding that “[o]ur standing doctrine does not require these
refinements”); Andross v. Town of West Hartford, 939 A.2d 1146, 1157–59
(Conn. 2008) (weighing federal and Connecticut caselaw on standing and
ultimately resolving their rejection of federal norms in favor of more liberal
state standards); Citizens for Prot. of N. Kohala Coastline v. County of
Hawai’i, 979 P.2d 1120, 1127 (Haw. 1999) (“[Defendant’s] reliance on
Lujan . . . [is] misplaced, inasmuch as the United States Supreme Court’s
doctrine on the issue of standing does not bind us.”); Stockmeier v. Nev.
Dep’t of Corr. Psychological Review Panel, 135 P.3d 220, 225–26 (Nev.
2006) (examining the Lujan approach, examining the history of state-
crafted standing, and ultimately rejecting the Lujan approach under
Nevada law), abrogated on other grounds by Buzz Stew, LLC v. City of North
22
Las Vegas, 181 P.3d 670, 672 n.6 (Nev. 2008); Kellas v. Dep’t of Corr., 145
P.3d 139, 143 (Or. 2006) (“[W]e cannot import federal law regarding
justiciability into our analysis of the Oregon Constitution and rely on it to
fabricate constitutional barriers to litigation with no support in either the
text or history of Oregon’s charter of government.”); West v. Seattle Port
Comm’n, 380 P.3d 82, 86 (Wash. Ct. App. 2016) (finding the restrictive
Lujan approach as fundamentally opposed to the broad Washington
approach). Other state courts, however, have embraced the federal
standing doctrine as articulated in Lujan. See, e.g., Blackmon v. Tenet
Healthsys. Spalding, Inc., 667 S.E.2d 348, 350 n.6 (Ga. 2008) (adopting
implicitly the Lujan approach to standing); ABC Agra, LLC v. Critical Access
Grp., Inc., 331 P.3d 523, 525 (Idaho 2014) (outlining the Idaho caselaw
favoring the Lujan standing doctrine); Plan Helena, Inc., 226 P.3d at 569
(likening the narrowness of federal justiciability under Article III to that
found in article VII, section 4 of the Montana Constitution); Moore v.
Middletown, 975 N.E.2d 977, 982 (Ohio 2012) (adopting Lujan outright
regarding standing); Cable v. Union Cty. Bd. of Cty. Comm’rs, 769 N.W.2d
817, 825 (S.D. 2009) (adopting the Lujan standard for standing, and
ultimately rejecting petitioner’s claim on that basis). See generally
Benjamin T. Sharp, Stepping into the Breach: State Constitutions as a
Vehicle for Advancing Rights-Based Climate Litigation, 14 Duke J. Const.
L. & Pub. Pol’y Sidebar 39, 46–52 (2019) (examining the federal standing
doctrine as it relates to state constitutional claims for climate litigation).
At least three states, however, have engaged in wholesale
reformulation of their standing requirements. In Lansing Schools
Educational Association, the Michigan Supreme Court gave its standing
doctrine an overhaul. 792 N.W.2d at 699–702. The Oregon Supreme
Court did the same in Couey, 355 P.3d at 875–76. And finally, in Kuhnlein,
23
646 So. 2d 717, the Florida court reexamined its reliance on federal
standing doctrine. Id. at 720.
More than fifteen years ago, Hans Linde noted that “many lawyers,
judges, and academics assume that federal formulas for review of official
actions equally apply to state law.” Linde, State and Federal Courts, 46
Wm. & Mary L. Rev. at 1273. Parties appearing before our court have
generally simply assumed that the federal caselaw on standing is
applicable in Iowa notwithstanding the lack of “case” or “controversy”
language in the Iowa Constitution.
Following the limited advocacy, our caselaw suggests that we look
to federal cases for guidance as we consider, as a self-imposed prudential
matter, whether to provide access to the courts to specific litigants. See
Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 452 (Iowa
2013) (characterizing standing as “[o]ur self-imposed standing inquiry”);
Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 869 (Iowa 2005) (“[T]he federal
test for standing is based in part upon constitutional strictures and
prudential considerations while our rule on standing is self-imposed.”);
Hawkeye Bancorp. v. Iowa Coll. Aid Comm’n, 360 N.W.2d 798, 802 (Iowa
1985) (“Unlike the federal courts, state courts are not bound by
constitutional strictures on standing.”).
Thus, our standing doctrine is not constitutionally based. In
applying the prudential doctrine, we recognized a public interest exception
to mootness and have at least indicated a willingness to consider a public
interest exception generally to conventional standing doctrine. Godfrey v.
State, 752 N.W.2d 413, 419–20 (Iowa 2008) (stating willingness to consider
a public interest exception to standing requirements, generally); Rush v.
Ray, 332 N.W.2d 325, 326 (Iowa 1983) (finding a public interest exception
to the mootness doctrine). We have also allowed taxpayer standing more
24
broadly than would be the case under federal jurisprudence. Godfrey, 752
N.W.2d at 420–24, 429.
In sum, the question of whether Dickey has standing in this case to
litigate his claim is a question of state law. Further, under state law,
standing is a self-imposed prudential doctrine that does not have
constitutional dimension. In the exercise of self-imposed prudential
discretion, we may follow federal caselaw to the extent it is persuasive but
are under no obligation to do so.
B. Contours of Relevant Federal Jurisprudence Regarding
Standing by Legislative Action.
1. Introduction. This case involves the question of whether Dickey
has standing as a result of legislative action in Iowa Code chapters 68A
and 68B. The question arises: what role does legislative action have in
determining whether a party has standing to litigate in court?
2. Early recognition of congressional power to create causes of action
brought by strangers. Article III of the United States Constitution, as a
textual matter, contains no reference to an injury-in-fact requirement,
often cited in some recent federal cases as a requirement for standing. The
notion of standing does not appear in Supreme Court cases until 1944
when the Court decided Stark v. Wickard, 321 U.S. 288, 306, 64 S. Ct.
559, 569 (1944). And the concept of “injury in fact” did not surface until
around 1970. See generally Cass R. Sunstein, What’s Standing After
Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 201
(1992) [hereinafter Sunstein, After Lujan] (finding the Supreme Court, in
analysis of its own caselaw, suggested that injury in fact was a
requirement under the Article III framework).
Scholars have noted that English practice prior to the United States
Constitution allowed strangers to have standing in a number of cases.
25
See, e.g., id. at 171 (“In both England and America [from the founding until
1920], actions by strangers, or by citizens in general, were fully
permissible and indeed familiar.”). Further, early congressional action
authorizing qui tam 5 and informer’s actions 6 suggest that suits without
personal injury by persons who were acting as representatives of others
were not viewed as raising constitutional problems under Article III. See
id. at 170–77. The congressional enactment of qui tam and informer’s
actions in the era of the constitutional adoption has been cited as
demonstrating that Article III was not intended to limit congressional
power to create a cause of action and remedies even on behalf of relative
strangers to an event or transaction. Id. at 177.
3. Legislative power to create citizen standing. The Supreme Court
has historically recognized the power of the legislature to authorized
aggrieved parties to appeal from agency action. For instance, in FCC v.
Sanders Bros. Radio Station, 309 U.S. 470, 60 S. Ct. 693 (1940), the
Supreme Court rejected the government’s argument that the plaintiff did
not have standing. There, the Court emphasized that “[i]t is within the
power of Congress to confer such standing to prosecute an appeal.” Id. at
477, 60 S. Ct. at 698.
Another example of legislative power to create causes of action with
remedies for strangers is Havens Realty Corp. v. Coleman, 455 U.S. 363,
102 S. Ct. 1114 (1982). In Havens Realty, the Court noted that Congress
declared it unlawful “[t]o represent to any person because of race, color,
religion, sex, or national origin that any dwelling is not available for
5A qui tam action gives citizens a right to bring a civil suit to enforce federal
criminal law. Sunstein, After Lujan, 91 Mich. L. Rev. at 175.
6An informer’s action allowed a person to bring an action to enforce public duties.
Sunstein, After Lujan, 91 Mich. L. Rev. at 175.
26
inspection, sale, or rental when such dwelling is in fact so available.” 455
U.S. at 367 n.2, 102 S. Ct. at 1118 n.2 (quoting section 804 of the Fair
Housing Act of 1968, 42 U.S.C. § 3604(d)). In Havens Realty, the Supreme
Court held that Congress created the injury, namely, a “statutorily created
right to truthful housing information.” Id. at 374, 102 S. Ct. at 1122; see
also Sunstein, After Lujan, 91 Mich. L. Rev. at 189–92.
These United States Supreme Court cases stand for the proposition
that to the extent standing doctrine is based on prudential concerns, the
legislative branch has the power to override them by statute. If we were to
choose to follow these federal cases, since standing is entirely prudential
in Iowa, the legislature may establish who has standing to litigate a
particular cause of action it has established.
4. Splintered departures in Lujan. The Supreme Court in Lujan took
the law of standing, in fits and starts, in a new direction. In Lujan, two
members of Defenders of Wildlife asserted injury arising from EPA action
announcing that the Endangered Species Act would only apply to actions
in the United States or on the high seas. 504 U.S. at 557–59, 112 S. Ct.
at 2135. One person swore she traveled to Egypt and viewed the habitat
of the endangered Nile crocodile and intended to do so again. Id. at 563,
112 S. Ct. at 2138. Another person visited Sri Lanka in 1981 and observed
the habitat of the Asian elephant and leopard. Id. at 563–64, 112 S. Ct.
at 2138. The Supreme Court found that the plaintiffs lacked injury in fact
as their plans to visit impacted areas were too indefinite to support injury
in fact. Id. at 566–67, 112 S. Ct. at 2139–40. Further, the Lujan majority
suggested that there was an “irreducible constitutional minimum” of
standing elements: (1) injury in fact, (2) traceability, and (3) redressability.
Id. at 560–61, 112 S. Ct. at 2136.
27
The development by the Supreme Court of a constitutionally based
injury-in-fact requirement was foreshadowed by a 1983 article written by
then-Judge Antonin Scalia. See Antonin Scalia, The Doctrine of Standing
as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev.
881, 881–82 (1983) (suggesting that “courts need to accord greater weight
than they have in recent times to the traditional requirement that the
plaintiff’s alleged injury be a particularized one, which sets him apart from
the citizenry at large”). The development of an injury-in-fact constitutional
requirement has been highly contested, as demonstrated by the academic
criticism 7 and the number of state courts that have declined to follow it. 8
In a concurring opinion, however, Justice Kennedy noted that had
the plaintiffs actually purchased an airplane ticket, had a specific date to
visit, or used the sites on a regular basis, they might have had standing.
Lujan, 504 U.S. at 579–80, 112 S. Ct. at 2146 (Kennedy, J., concurring in
part and in the judgment). Importantly, Justice Kennedy emphasized that
courts “must be sensitive to the articulation of new rights of action that do
not have clear analogs in our common-law tradition.” Id. at 580, 112 S. Ct.
at 2146. And, he emphasized that “Congress has the power to define
injuries and articulate chains of causation that will give rise to a case or
controversy where none existed before.” Id. According to Justice Kennedy,
7See, e.g., F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93
Cornell L. Rev. 275, 320–21 (2008) (“The Constitution charges Congress with enacting
laws. The injury-in-fact requirement, however, restricts Congress’s power to create rights
. . . thus prevent[ing] Congress from exercising the full extent of its power to create
rights.”); Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially
Imposed Limit on Legislative Power, 42 Duke L.J. 1170, 1170–71 (1993) (stating that the
majority opinion “is an insupportable judicial contraction of legislative power to make
judicially enforceable policy decisions”); Sunstein, After Lujan, 91 Mich. L. Rev. at 217
(claiming that the opinion “reads Article III broadly, invests it with general, controversial
values, and ultimately recommends judicial invalidation of the outcomes of democratic
processes”).
8See cases cited in division IIA above.
28
Congress failed to “identify the injury it seeks to vindicate and relate the
injury to the class of persons entitled to bring the suit.” Id. at 580, 112
S. Ct. at 2147; see Sunstein, After Lujan, 91 Mich. L. Rev. at 201–02.
There was, obviously, some tension between the majority’s reference
to an “irreducible constitutional minimum,” Lujan, 504 U.S. at 560, 112
S. Ct. at 2136 (majority opinion), and Justice Kennedy’s opinion
emphasizing the power of Congress to define injuries, id. at 580, 112 S. Ct.
at 2146–47 (Kennedy, J., concurring in part and in the judgment).
Certainly the notion that Congress had a role in determining who had
standing to litigate was not foreclosed under the concurring opinion. See
Massachusetts v. EPA, 549 U.S. 497, 516, 127 S. Ct. 1438, 1453 (2007)
(stating congressional authorization is of “critical importance to the
standing inquiry”); Mark Seidenfeld & Allie Akre, Standing in the Wake of
Statutes, 57 Ariz. L. Rev. 745, 748 (2015) (finding Congress can “recognize
interests and thereby influence judicial evaluation of whether an interest
is sufficiently concrete and immediate to justify standing”).
5. Informational standing under Akins. The United States Supreme
Court considered an important standing issue in Akins. In Akins, voters
attempted to convince the Federal Election Commission (FEC) to treat the
American Israel Public Affairs Committee (AIPAC) as a political committee
within the meaning of the Federal Election Campaign Act of 1971 (FECA).
Akins, 524 U.S. at 13–14, 118 S. Ct. at 1780–81. The FEC came to the
conclusion that AIPAC was not a political committee subject to regulation
under the FECA. Id. at 18, 118 S. Ct. at 1783. The plaintiffs brought an
action claiming they were statutorily entitled to challenge the action of the
FEC. Id. The FEC asserted, among other things, that the voters lacked
standing in their capacity as citizens and that the suit should be
dismissed. Id.
29
In an important opinion by Justice Kennedy, the Supreme Court
found sufficient injury in fact to conclude that the voters had standing.
Id. at 20, 118 S. Ct. at 1784. The Akins Court first found that, because
Congress had granted standing to “[a]ny party aggrieved,” the prudential
limits had been overcome. Id. at 19, 118 S. Ct. at 1783 (alteration in
original) (quoting 2 U.S.C. § 437g, now found at 52 U.S.C. § 30109(a)(8)(A)
(2018)). The Court then found injury in fact because the statute requires
that information about AIPAC donors and campaign contributors be made
public. Id. at 21, 118 S. Ct. at 1784. In the opinion of the Court, there
was a nexus between voter standing and the statutory harm that was
suffered––failure to disclose donor and expenditure information. Id. at 22,
118 S. Ct. at 1785. The Akins Court recognized that while prior decisions
favored the political process for resolution of widely shared grievances, the
availability of the political remedy “does not, by itself, automatically
disqualify an interest for Article III purposes.” Id. at 24, 118 S. Ct. at 1786.
On the question of redressability, the Akins Court held that plaintiffs had
standing to challenge a decision of the FEC based on improper legal
grounds. Id.
The Akins case was examined shortly after it was decided by
Professor Cass Sunstein, a leading constitutional scholar. Sunstein noted
that in Akins, the Court rooted standing “firmly in Congress’s
instructions.” Cass Sunstein, Informational Regulation and Informational
Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613, 637 (1999). The
injury-in-fact requirement was satisfied, according to Sunstein, because
the plaintiffs “were denied information to which they had a legal right.” Id.
at 638. In short, although labeled “injury in fact,” the determination turns
on what the law is: what does the law require to be made public? Id.
Sunstein concluded that “at least where the plaintiff seeks information,
30
and where Congress has created a legal interest and a right to bring suit,
the Constitution does not stand as an obstacle.” Id. at 643.
6. Post-Akins caselaw. There are a handful of post-Akins cases that
deal with the issue of standing to challenge an action by an administrative
agency in the context of election law. Most of them are federal cases
dealing with standing under Article III of the United States Constitution.
There is one case, however, that considers the standing of a voter in the
context of disclosure required pursuant to a state election disclosure
statute. In Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) (per
curiam), a nonpartisan political organization sought review of an FEC
action to dismiss a complaint concerning alleged violations of the federal
campaign elections law. The gist of the claim was that the Montana
Republican Party and the National Republican Senatorial Committee
violated federal law by making contributions in excess of legal limits to a
senatorial campaign and by failing to accurately report those contributions
and expenditures. Id. at 415. Although the FEC voted 3–2 to find probable
cause to believe violations occurred, four votes are requires to act under
federal law. Id. As a result of the deadlock, the FEC voted to dismiss the
matter. Id.
In a per curiam opinion, the court in Common Cause emphasized
that Common Cause was “less than clear in articulating the nature of the
information of which its members and the organization itself allegedly have
been deprived.” Id. at 417. The Common Cause court noted that Akins
declared that “[a] voter deprived of useful information at the time he or she
votes suffers a particularized injury” but characterized the Common Cause
complaint as simply seeking disclosure to the public of the fact that a
violation of federal law occurred. Id. at 418 (quoting Akins v. FEC, 101
F.3d 731, 737 (D.C. Cir. 1996), vacated, 524 U.S. 11, 118 S. Ct. 1777
 31
(1998)). While Common Cause alleged that federal law provided that “any
person” could file a complaint with the FEC and that “any person”
aggrieved by an order could seek judicial review, the Common Cause court
held that, notwithstanding the statutory provisions, Article III of the United
States Constitution required more. Id. at 418. In support of their
conclusion, the Common Cause court cited Lujan for the proposition that,
notwithstanding the statutory provisions allowing a citizen to sue to
enforce the law, Common Cause was required to show discrete injury
flowing from the violation. Id. at 418–19.
A federal district court dealt with campaign finance matters in
Alliance for Democracy v. FEC, 362 F. Supp. 2d 138 (D.D.C. 2005). In
Alliance for Democracy, the petitioners claimed that a political committee
provided the John Ashcroft senatorial campaign with a valuable campaign
list of 100,000 donors and that neither the political action committee nor
the Ashcroft campaign reported the contribution. Id. at 139–40. After an
investigation, the FEC entered into a conciliation agreement which
concluded that the list was not a reportable contribution and did not
require disclosure of its value. Id. at 141. Alliance for Democracy (AFD)
sought to challenge the action of the FEC on appeal. Id. The district court
conducted an Article III analysis and held that because AFD had already
obtained the information it sought, it lacked standing to maintain the
action. Id. at 148–49.
In Mallof v. District of Columbia Board of Elections & Ethics, 1 A.3d
383 (D.C. 2010), the District of Columbia Court of Appeals considered a
case where plaintiffs challenged a determination of the Office of Campaign
Finance that a candidate had not violated local campaign finance law by
using government resources in a political campaign. Id. at 385. The gist
of the claim was that the incumbent candidate for city council used
32
government resources by using his council office as a backdrop for
photographs of himself and the uniformed chief of police that were used
in a campaign advertisement. Id. at 387. After an investigation, the board
elected to dismiss the action “because the photograph was not taken for a
campaign-related purpose and because [the chief of police] consented to
pose [with the councilman] in the photograph for a personal, not
campaign-related purpose.” Id. In administrative proceedings after the
election, the board held that the plaintiffs lacked standing to raise their
claims. Id. at 389–90.
On appeal, the Mallof court agreed. It focused its analysis on the
“case” or “controversy” requirement of Article III of the United States
Constitution. Id. at 395. According to the Mallof court, the plaintiffs
merely sought a declaration that a violation of campaign finance law
occurred, and such an allegation was insufficient under Article III. Id. at
399. The Mallof court emphasized that the plaintiffs were not seeking
information of any kind and, as a result, Akins had no bearing on the case.
Id. at 398–99.
Finally, in Lindemann v. Commission on Governmental Ethics &
Election Practices, 961 A.2d 538 (Me. 2008), the Supreme Judicial Court
of Maine considered a case in which the petitioner sought to appeal a
ruling of the Maine Commission on Governmental Ethics and Election
Practices. Id. at 540. The petitioner claimed that because of the
involvement of the Maine Heritage Policy Center (MHPC) in a statewide
campaign to enact a taxpayer bill of rights law (TABOR), MHPC was a
political action committee under Maine campaign finance law, requiring
MHPC to register and file reports with the commission. Id. In the
alternative, the petitioner asserted that the MHPC was required to report
its expenditures in support of TABOR under regulations related to efforts
33
to support or defeat ballot measures. Id. The commission found that the
MHPC was not a political action committee, but was required to report its
expenditures in support of the ballot initiative. Id. at 541. The report was
filed within thirty days of the decision. Id.
The Lindemann court noted that in Maine, standing is prudential
rather than constitutional. Id. In considering the standing question, the
Lindemann court noted that under the relevant Maine election finance
statute, “Only a ‘person aggrieved by the failure or refusal of the agency to
act’ ” is entitled to judicial review. Id. at 542 (quoting Me. Rev. Stat. tit. 5,
§ 11001(2) (2007)). In this case, the Lindemann court noted the agency
did act, and as a result, this statutory right did not kick in. Id. at 542–43.
In the alternative, the Lindemann court held that the petitioner was
not “aggrieved” in this case. Id. at 543. The Lindemann court noted that,
as a matter of statutory interpretation, the term “aggrieved” party under
the Maine Administrative Procedures Act (MAPA) had been interpreted by
the court to require particularized injury, that an agency action or inaction
must operate “prejudicially and directly upon the party’s property,
pecuniary or personal rights.” Id. at 543 (quoting Nelson v. Bayroot, LLC,
953 A.2d 378, 382 (Me. 2008)). Under Maine statutory precedent, “[b]eing
affected by a government action is insufficient to confer standing in the
absence of any showing that the effect in an injury.” Id. (quoting Collins
v. State, 750 A.2d 1257, 1260 (Me. 2000)). As a result of its statutory
interpretation of the term “aggrieved,” the Lindemann court determined
that the petitioner lacked standing in this case. Id. at 544.
The Lindemann court briefly reviewed Akins and emphasized that
unlike the FECA, Maine’s campaign statutes do not expressly provide a
right to judicial review. Id. In any event, the Lindemann court noted that
unlike in Akins, the petitioner was not deprived of useful political
34
information. Id. at 545. Under the commission’s alternate ruling, the
petitioner received information sought on MHPC’s financial involvement
with TABOR. Id. As a result, the Lindemann court held that Akins did not
apply. Id.
There were several important footnotes to the Lindemann opinion.
First, in footnote 9, the Lindemann court emphasized other statutes
afforded broader access to the courts than the MAPA. Id. at 543 n.9.
Specifically, the court noted that under Superintendent of Insurance v.
Attorney General, 568 A.2d 1197 (Me. 1989), the legislature provided that
“a party did not need show particularized aggrievement in order to have
standing pursuant to the Insurance Code statutes.” Lindemann, 961 A.2d
at 543 n.9. The Lindemann court emphasized that the Maine election
finance statutes did not “include an independent or more expansive grant
of standing.” Id.
The legislature’s prerogatives were further reinforced by the
Lindemann court in footnote 11. There, the court noted that “[b]ecause
standing in administrative appeals is statutorily based, whether standing
to challenge a determination of the Commission should extend to the
general public is a decision to be made by the legislature, not the
judiciary.” Id. at 545 n.11.
C. Cases from Other State Jurisdictions Related to
Legislatively Established (or Not) Causes of Action. I now turn to
caselaw in state jurisdictions dealing with the question of the power of the
legislature to enact statutes that enable broad groups of persons to
challenge administrative actions in the courts. As will be seen below, there
is substantial authority in state courts for the proposition that the
legislature has the power to establish causes of action that provide
litigants with the right to litigate in the state courts without interference
35
or restrictions by a state court unhappy with the substance of the
legislation.
By way of example, in Housing Authority v. Pennsylvania State Civil
Service Commission, 730 A.2d 935 (Pa. 1999), the Pennsylvania Supreme
Court considered an appeal by a county housing authority of a
determination by the state civil service commission that the appointment
of an applicant as executive director violated Pennsylvania’s Veterans’
Preference Act. Id. at 937. In considering standing issues in the case, the
Pennsylvania Supreme Court noted that the drafters of the Pennsylvania
Constitution did not restrict the courts to jurisdiction in matters involving
a “case” or “controversy.” Id. at 941. According to the Pennsylvania
Supreme Court,
if a statute properly enacted by the Pennsylvania legislature
furnishes the authority for a party to proceed in
Pennsylvania’s courts, the fact that the party lacks standing
under traditional notions of our jurisprudence will not be
deemed a bar to an exercise of this Court’s jurisdiction . . . .
. . . [T]he Pennsylvania legislature may vest a
governmental agency like the Commission with the authority
to enforce the veterans’ preference provisions . . . regardless
of whether the Commission itself has suffered any cognizable
injury which would afford it standing under our
jurisprudence.
Id. Similarly, in Lansing Schools Education Association, the Michigan
Supreme Court considered whether teachers could bring a cause of action
under a statute against a schoolboard for failing to comply with its
statutory duty to expel students that have allegedly physically assaulted
those teachers. 792 N.W.2d at 688. The district court granted a motion
for summary judgment on the ground the plaintiffs lacked standing to
litigate. Id. at 689.
 36
In reversing and remanding the case, the Michigan Supreme Court
employed its “long-standing historical approach to standing.” Id. at 699.
According to the Michigan Supreme Court, “[u]nder this approach, a
litigant has standing whenever there is a legal cause of action.” Id. The
Michigan Supreme Court further noted that standing may be conferred “if
the statutory scheme implies that the Legislature intended to confer
standing on the litigant.” Id.
Another case emphasizing the role of the legislature in creating
enforceable causes of action is Small v. Federal National Mortgage Ass’n,
747 S.E.2d 817 (Va. 2013). In Small, the Virginia Supreme Court
answered certified questions regarding the authority of a clerk of court to
initiate litigation related to the enforcement of a real estate transfer tax.
Id. at 819–20. The Virginia Supreme Court declared that the question was
not whether the plaintiff had a personal stake in the controversy or
whether the plaintiff’s rights would be affected, but rather whether “the
plaintiff . . . possess[es] the ‘legal right’ to bring the action, which depends
on the provisions of the relevant statute.” Id. at 820. The Small court cited
Virginia precedent involving procurement, noting that it had “examined
those statutes to determine whether the plaintiffs had standing” to litigate
their claims. Id. at 821. After canvassing the relevant statutes, the
Virginia Supreme Court concluded that the clerk lacked the authority to
litigate under the applicable statutes. Id. at 824; see Zachary D. Clopton,
Procedural Retrenchment and the States, 106 Calif. L. Rev. 411, 425 n.210
(2018) (noting that many states recognize statutorily created standing).
D. Relevant Iowa Caselaw. In older cases under the IAPA, we
indicated that in determining the meaning of the term “aggrieved,” a party
must show “(1) a specific personal and legal interest in the subject matter”
and “(2) a specific and injurious effect on this interest by the decision.”
37
Iowa Power & Light Co. v. Iowa State Commerce Comm’n, 410 N.W.2d 236,
239 (Iowa 1987) (quoting Iowa-Ill. Gas & Elec. Co. v. Iowa State Commerce
Comm’n, 347 N.W.2d 423, 426 (Iowa 1984)); see also Iowa Bankers Ass’n
v. Iowa Credit Union Dep’t, 335 N.W.2d 439, 443 (Iowa 1983).
In Godfrey, however, we altered the first prong of the test to require
only a specific personal or legal interest in the subject matter. 752 N.W.2d
418–19. Thus, under our current law, a party may satisfy the standing
test by showing a “legal interest” in the subject matter of the litigation and
demonstrating the challenged decision has a specific and injurious effect
on that “legal interest.”
In our caselaw, we did not permit the federal zone-of-interest test
articulated in Association of Data Processing Service Organizations, Inc. v.
Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 830 (1970), to limit standing in
challenges to agency action. See Iowa Bankers Ass’n, 335 N.W.2d at 442–
44. Nothing in Iowa Bankers, however, undermines the proposition that
determination of the scope of “legal interest” created by the statute
allegedly violated by an administrative agency is critical in determining
whether a legal interest has been violated and if that legal interest has
been injured.
Finally, as noted above and is briefly reprised here, our standing
doctrine is not constitutionally imposed but is prudential in nature. See,
e.g., Horsfield Materials, Inc., 834 N.W.2d at 452 (describing Iowa standing
requirements as “self-imposed”). As a result, the question of who is
aggrieved under the IAPA is purely a question of statutory interpretation.
III. Discussion.
Based on my review of the above authorities, I am convinced that
the sole question before us today is whether the legislature provided
Dickey with a substantive “legal interest” under Iowa Code chapters 68A
38
and 68B. Such a legal interest would support a right to bring an
enforcement action under the IAPA to require the Board to insist that
political committees submit accurate information for public disclosure.
The scope of the statutory legal interest, if any, is determined by looking
at whether the legislature has provided Dickey with a legal interest
supporting the claim he seeks to pursue in this case. If so, he has standing
to bring the claim. If not, he is not entitled to relief as he has not alleged
a common law or constitutional claim.
This approach is consistent with the state court cases cited above,
considering whether citizens have standing to enforce various statutory
provisions. In these cases, the key question is whether the legislature
provided the plaintiff with a substantive legal right to the relief sought,
and, if so, whether there is sufficient “injury in fact” to bring the action
when that right has been threatened by administrative action. See, e.g.,
Lansing Schools, 792 N.W.2d at 733; Housing Auth., 730 A.2d at 941;
Small, 747 S.E.2d at 820.
This basic principle is illustrated by the Iowa Public Records Act.
Iowa Code ch. 22. Under chapter 22, “[a]ny aggrieved person, any taxpayer
to or citizen of the state of Iowa . . . may seek judicial enforcement of the
requirements of this chapter . . . .” Iowa Code § 22.10(1). The legislature
has thus made it abundantly clear that any citizen may bring an action
without any injury other than the injury that arises from the violation of
the citizen’s substantive right to inspect and copy a public record. Id. A
plaintiff bringing an action under chapter 22, as evidenced by the broad
standing language included in section 22.10(1) and the lack of additional
requirements, may have a good reason or no reason at all for requesting
the disclosure, and therefore may even already know the information
contained in the public document. The key is that the legislature has
39
provided a substantive legal interest in the inspection and production of
public documents, and as a result, an injury to that legal interest occurs
whenever a custodian wrongfully withholds the documents. The legal
interest of the citizen under chapter 22 is in public disclosure and not
information for personal use.
In my view, the legislature, in enacting the provisions of chapters
68A and 68B related to campaign finance created a disclosure statute like
Iowa Code section 22.10(1). The legislature created an Iowa Ethics and
Campaign Disclosure Board. See id. § 68B.32(1). The legislature directed
the Iowa Ethics and Campaign Disclosure Board to review content and
verify information in the reports of campaign committees “to assure
accurate disclosure.” Id. § 68B.32A(4). Further, the legislature directed
the Iowa Ethics and Campaign Disclosure Board to assure that statements
and reports filed in accordance with this chapter “are available for public
inspection.” Id. § 68B.32A(7).
The substantive disclosure requirements are provided in Iowa Code
chapter 68A and include disclosure of expenditures and campaign
contributions. See generally id. § 68A.402A (outlining the information to
be disclosed in campaign finance reports). The legislature has provided
that “[a] committee receiving an in-kind contribution shall report the
estimated fair market value of the in-kind contribution.” Id.
§ 68.402A.1(d). The language of the statutes demonstrate that the
purpose of Iowa Code chapters 68A and 68B is public disclosure of
accurate campaign finance information.
The legislature provided in Iowa Code section 68B.32B that “[a]ny
person may file a complaint alleging . . . a violation of [the public disclosure
requirements].” Id. § 68B.32B(1). The fact that the legislature allowed
“any person” to file a complaint suggests that “any person” has been
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broadly vested with a “legal interest” in accurate campaign finance
disclosure. After a person files a complaint, the Board reviews such
complaint under procedures outlined in the statute. Id. § 68B.32B(2)–(11).
Judicial review of the actions of the Board may then be sought in
accordance with chapter 17A. Id. at § 68B.33. If Dickey has a “legal
interest” in the disclosure he seeks, he is “aggrieved” under Iowa Code
section 17A.19(1) by the unfavorable action of the Board.
The question then becomes whether the provisions of Iowa Code
chapters 68A and 68B provide for “any person” a legal interest in public
disclosure of information related to expenditures and contributions. The
principle that the legislature may establish standing to bring a claim was
critical to the Akins decision. In Akins, Congress expressly declared that
a person whose complaint was dismissed by the FEC was entitled to seek
judicial enforcement. Akins, 524 U.S. at 19–21, 118 S. Ct. at 1783–84. As
Justice Kennedy noted in his concurrence in Lujan, the courts “must be
sensitive to the articulation of new rights of action that do not have clear
analogs in our common-law tradition.” 504 U.S. at 580, 112 S. Ct. at
2146. And, Justice Kennedy noted that the legislative branch may
“identify the injury it seeks to vindicate and relate the injury to the class
of persons entitled to bring suit.” Id. at 580, 112 S. Ct. at 2147.
The notion that the legislative branch may establish a cause of
action and vest members of the public with standing to litigate has
substantial support in the academic commentary. See, e.g., Richard J.
Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed
Limit on Legislative Power, 42 Duke L.J. 1170, 1181, 1192, 1201 (1993)
(observing that Congress has the power to confer standing legislatively and
that the courts should enforce the legislature’s policy decisions against
state agencies); Cass R. Sunstein, Standing and the Privatization of Public
41
Law, 88 Colum. L. Rev. 1432, 1433 (1988) (suggesting that the “principal
question [for standing] should be whether Congress has created a cause
of action”). As noted by Professor Chayes many years ago, “the legitimacy
of judicial action can be understood to rest on the delegation from the
people’s representatives.” Abram Chayes, The Role of the Judge in Public
Law Litigation, 89 Harv. L. Rev. 1281, 1314 (1976).
Note the critical difference between this case and Lindemann. In
Lindemann, the statute made no mention at all of a right to seek
enforcement. But Dickey’s position is stronger than in Lindemann. Iowa
Code section 68B.33 expressly authorizes Dickey to file his complaint with
the Board. Iowa Code § 68B.32B(1). It then goes on to state that
“aggrieved” persons may bring challenges to Board action under the Iowa
Administrative Procedures Act. So, as stated in footnotes 9 and 11 in
Lindemann, the question is: what substantive legal rights did the
legislature intend to bestow on Dickey? Unlike in Lindemann, it is clear
that the Iowa legislature provided a substantive right of some kind to be
enforced in the Iowa courts. The question then becomes: what is the scope
of that legal right that Dickey may enforce?
The majority, in essence, declares that Dickey may have a legal right
to force accurate disclosure of the names of contributors to a political
committee but does not have a substantive right to require accurate
disclosure in the amount of the contribution when he has a pretty good
idea of the actual cost of a private jet to ferry the Governor and others to
the Liberty Bowl.
But there is nothing in the Iowa campaign finance disclosure
statutes that makes that distinction. The campaign finance disclosure
statutes require that political committees accurately and publically
disclose the names of their contributors and that they accurately and
42
publicly disclose the amount of the contribution. Dickey has a statutory
legal right to complain to the Board about inaccurate disclosures in public
reports of any kind, not just the failure to list campaign contributors. His
statutory legal interest established by the statute is not solely in informing
himself, but in requiring accurate public disclosure for all to see. And, if
he is aggrieved by the action of the Board, he has the right to an appeal
under the IAPA.
The question then is whether he is aggrieved when he has filed a
complaint with the Board seeking an accurate public disclosure of the
costs of the Memphis trip. First, the majority suggests that his grievance
is too general to give rise to standing under Iowa Code section 17A.19(1).
See Godfrey, 752 N.W.2d at 423–24. But as noted in Akins, the term
“aggrieved” in the Federal APA suggests an intent to “cast the standing net
broadly.” 524 U.S. at 19–20, 118 S. Ct. at 1783. Further, as Akins states,
a harm can be concrete even though widely shared. Id. at 24, 118 S. Ct.
at 1786. The Akins Court further observed that an informational injury
related to voting, the most basic of political rights, is sufficiently concrete
to allow a party to litigate the issue. Id. at 24–25, 118 S. Ct. at 1786.
The Akins Court, in rejecting the prudential standing challenge,
noted that, like here, the legislature had “specifically provided . . . that
‘[a]ny person who believes a violation of this Act . . . has occurred, may file
a complaint with the Commission.’ ” Id. at 19, 118 S. Ct. at 1783 (quoting
2 U.S.C. § 437g, now found at 52 U.S.C. § 30109 (a)(8)(A)). Like Akins,
this case does not merely involve “harm to the ‘common concern for
obedience to law.’ ” Id. at 23, 118 S. Ct. at 1785 (quoting L. Singer & Sons
v. Union Pac. R.R., 311 U.S. 295, 303, 61 S. Ct. 254, 258 (1940)). The
harm of inaccurate public disclosure alleged in this case, like the harm in
Akins, “is sufficiently concrete and specific such that the fact that it is
43
widely shared does not deprive [the legislature] of constitutional power to
authorize its vindication in . . . courts.” Id. at 25, 118 S. Ct. at 1786.
Under the reasoning of Akins, Dickey has been aggrieved by the
denial of a statutory legal right established in Iowa Code chapters 68A and
68B. In my view, the substantive statutory legal right is broad enough to
include not only a right to enforce disclosure of the names of donors, as in
Akins, but also the right to force accurate public disclosure of amounts of
the donation. Where the legislature establishes a broadly applicable legal
right and provides that any person can seek enforcement before the Board,
a person is aggrieved under Iowa Code section 17A.19(1) when the Board
denies the party the relief sought.
The majority, however, interprets the statute more narrowly,
suggesting that the statute provides Dickey only with the substantive
statutory legal right to enforce it to obtain information that he does not
already possess. Under the majority opinion, there is no right to force
public disclosure, but only a personal right to obtain information. But
public disclosure, and not personal disclosure, is at the very core of Iowa
Code chapters 68A and 68B. There is little public interest in disclosure to
Dickey himself, but substantial public interest in disclosure to the public
generally.
Of course, the legislature could have employed more specific
language in chapter 68B. It could have said, for instance, that any
complainant denied relief by the Board is an aggrieved party under the
IAPA. Or, it could have said more clearly that any citizen could bring an
action to force accurate public disclosure of both the names of contributors
and the amounts of contributions.
I thus concede that the scope of the legal right created by the
legislature when it enacted Iowa Code chapters 68A and 68B is not entirely
44
clear. Of course, the legal right may be express, or it may be implied. See
Lansing, 792 N.W.2d at 699. In my view, there is adequate indication that
the legal right should be interpreted broadly enough to encompass
Dickey’s complaint.
What is crystal clear, however, is that nothing in the majority
opinion should be read as defeating the general proposition that the Iowa
legislature has the plenary power to create substantive legal interest that
citizens are generally entitled to enforce in the event the established legal
right is not recognized by an administrative agency. The legislature has
the right to create statutory causes of action that can be enforced by
citizens generally. Any “prudential” considerations must give way to the
legislature’s directive. When it enacts statutes that create statutory rights
and enforcement mechanisms, the legislature holds the keys to the
courthouse door that cannot be boarded up by the judiciary.
IV. Conclusion.
For the above reasons, I conclude that the district court erred in
concluding that Dickey lacked standing to litigate in this case. I take no
view, of course, on the underlying merits of his claim. As the Board
correctly asserts, if Dickey has standing in this case, the legal merit of his
claim should be determined by the district court in the first instance.