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The Procedural Puzzles of SB8, Part V: Standing in State-Court Litigation

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Howard Wasserman and Charles Rhodes | 9.15.2021 11:08 AM

Our fourth post explained that providers and advocates will have to raise their constitutional challenges to SB8 in a defensive posture in state court after being sued by a claimant for violating SB8. But before addressing defensive federal constitutional provisions, a preliminary state-law matter should be considered: standing for an SB8 claim.

An SB8 "any person" claimant, as discussed in our last post, will not have standing in federal court. But state courts may develop unique standing doctrines outside the "case or controversy" limits of Article III.

Although the Texas Supreme Court often states that it follows the more extensive federal jurisprudence on standing, the court has declined to follow federal principles in certain contexts. Taxpayer standing is one example, and statutory standing is another example. We agree with others that an SB8 claimant should not have standing in state court, but the analysis is more nuanced than simply relying on Texas Supreme Court statements that it follows federal jurisprudence.

In Texas Association of Business v. Texas Air Control Board, the Texas Supreme Court grounded standing doctrines in the Texas Constitution's explicit separation-of-powers provision and the implicit requirement in the state's open-courts provision that each litigant seeking access to the courts must suffer an injury. As under the U.S. Constitution, state separation-of-powers principles preclude the judiciary from exercising governmental authority vested in other government departments, explaining the state judiciary's refusal to issue advisory opinions when that power is vested in the executive branch. While the Texas Constitution does not contain Article III's "cases or controversies" limitation, the court continued that a similar requirement was "implicit" in the Texas Constitution's open-courts requirement, which authorizes "remedy by due course of law" for "an injury."

Since TAB, the Texas Supreme Court has incorporated most familiar federal standing principles. The court employs the federal Lujan v. Defenders of........

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