Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Broadly speaking, an agency relationship may arise when one person (a “principal” ) and another person (an “agent” ) agree that the agent will perform certain actions on behalf of the principal, subject to the principal’s control.1 Such a relationship may also arise when the law authorizes one person to represent another person’s interests.2 Agency relationships may raise questions of representational standing when an uninjured litigant acts as the authorized agent for another individual who has suffered an injury-in-fact by seeking relief in federal court on behalf of that individual. For example, if authorized by law, a parent might sue on behalf of an injured minor child. In order for such a litigant to seek relief for another party he must be officially authorized to do so (either by consent or as a matter of law), and the advocate’s relationship with the third party must exhibit some of the “most basic features of an agency relationship,” such as the right to control the agent’s actions.3

One form of “agency standing” is the common-law concept of “next friend standing,” which involves an uninjured third party pursuing legal claims for the benefit of an injured party who cannot appear in court on his own behalf.4 This form of representational standing is often implicated in the context of habeas corpus proceedings, in which a litigant seeks a judicial determination that a prisoner should receive a new trial, new sentence, or be released.5 For instance, in Whitmore v. Arkansas, a death row inmate challenged the constitutional validity of a death sentence imposed on a fellow capital defendant as a “next friend” of the defendant when the defendant decided not to appeal his sentence to the Arkansas Supreme Court.6 The U.S. Supreme Court determined that the third-party inmate lacked standing to bring an Eighth Amendment objection as the “next friend” of the capital defendant.7 The Court stated that the two-part test for “next friend” standing that the proposed next friend must meet in order to invoke federal court jurisdiction requires: (1) the real party in interest to be unable to “appear on his own behalf to prosecute the action” because of inaccessibility, mental incompetence, or other disability; and (2) the “next friend” to “be truly dedicated to the best interests of the person on whose behalf he seeks to litigate” and to have a significant relationship with the real party in interest so that the next friend’s claims are not generalized grievances.8 In Whitmore, the proposed “next friend” failed to satisfy the first prong—and therefore lacked standing to sue—because he had not demonstrated that the real party in interest (i.e., the capital defendant) was unable to litigate the case due to disability after the defendant had voluntarily waived his right to appeal his sentence.9

The Supreme Court more recently discussed the limits of standing based on an agency theory in a case in which private parties sought to act as agents of the California government in a federal lawsuit. In Hollingsworth v. Perry, the Court considered a Fourteenth Amendment Equal Protection and Due Process Clause challenge to Proposition 8, a law that amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California.10 A federal district court had invalidated Proposition 8, but state and local officials declined to defend that ruling on appeal, so the official “proponents” of the proposition, who were private parties, sought to defend the law. The Court held that it lacked the authority to address the validity of Proposition 8 on the merits because the proponents did not have standing to invoke the jurisdiction of the federal courts to defend the proposition.11 The Court first held that the proponents lacked a “direct stake” in the outcome of their appeal and “their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.” 12 The Court then rejected the argument that the referendum proponents had standing because they were formally authorized to litigate on behalf of the State of California, as the litigants were private individuals rather than state officials or authorized agents of the state.13 In rejecting what the Court viewed as a “generalized grievance,” the Court emphasized that the proponents had no official role in enforcing California law distinguishable from the general interest of every citizen of California.14

Similarly, in Virginia House of Delegates v. Bethune-Hill, discussed below,15 the Supreme Court concluded that one chamber of the Virginia legislature lacked standing to represent the Commonwealth’s interests in appeal of a federal district court order requiring the redrawing of a 2011 legislative redistricting map for two reasons: (1) Virginia law designated the Virginia Attorney General as the commonwealth’s exclusive representative in litigation; and (2) the chamber claimed earlier in the litigation that it was vindicating its own interests, as opposed to those of Virginia.16

Footnotes

1

Restatement (Third) of Agency § 1.01 ( “Agency is the fiduciary relationship that arises when one person (a ‘principal') manifests assent to another person (an ‘agent') that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” ).

2

See generally Black’s Law Dictionary 1142 (9th ed. 2009) (defining a “next friend” as “a person who appears in a lawsuit to act for the benefit of an incompetent or minor plaintiff; but who is not a party to the lawsuit and is not appointed as a guardian” ).

3

Hollingsworth v. Perry, 570 U.S. 693, 702 (2013). See also, e.g., Thole v. U.S. Bank N.A., No. 17-1712, slip op. at 4 (U.S. June 1, 2020) (rejecting the argument that uninjured participants in a defined-benefit plan could sue as the plan’s representatives because, unlike “guardians, receivers, and executors,” the plaintiffs had not been “legally or contractually appointed to represent the plan” ).

4

Whitmore v. Arkansas, 495 U.S. 149, 162 (1990) ( “Most frequently, ‘next friends’ appear in court on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves.” ). See also Black’s Law Dictionary 1142 (9th ed. 2009) (defining a “next friend” as “a person who appears in a lawsuit to act for the benefit of an incompetent or minor plaintiff; but who is not a party to the lawsuit and is not appointed as a guardian” ).

5

Other contexts in which it may be relevant include actions on behalf of infants, other minors, and adult mental incompetents. Whitmore, 495 U.S. at 162 n.4. The Court has held that a parent-child relationship “easily satisfies” the “close relationship” requirement for “next friend” standing. See Sessions v. Morales-Santana, No. 15-1191, slip. op. at 7 (U.S. June 12, 2017).

6

Whitmore, 495 U.S. at 151. The Court had rejected the litigant’s argument that he had standing in his individual capacity. Id. at 161–62

7

Id. at 165.

8

Id. at 163–64.

9

Id. at 165. See also Sessions v. Morales-Santana, slip. op. at 7 (holding that the death of the real party in interest meets the “hindrance” requirement for “next friend” standing); Gilmore v. Utah, 429 U.S. 1012, 1016 (1976) (Burger, C.J., concurring) (suggesting that a competent defendant’s “knowing and intelligent” waiver of his right to seek appellate review of his sentence deprives the Court of jurisdiction to hear a “next friend” application for a stay of execution); id. at 1017 (Stevens, J., concurring) ( “In my judgment the record not only supports the conclusion that Gilmore was competent to waive his right to appeal, but also makes it clear that his access to the courts is entirely unimpeded and therefore a third party has no standing to litigate an Eighth Amendment claim—or indeed any other claim—on his behalf.” ).

10

Hollingsworth v. Perry, 570 U.S. 693, 688–90 (2013).

11

Id. at 689.

12

Id. at 649.

13

Id. at 696–99. The Court noted that an essential feature of agency is the principal’s right to control the agent’s actions. Here, the proponents decided “what arguments to make and how to make them.” Id. at 15. The Court also noted that the proponents were not elected to their position, took no oath, had no fiduciary duty to the people of California, and were not subject to removal. Id. See also Arizonans for Official English v. Ariz., 520 U.S. 43, 67–70 (1997) (determining that a former state employee lacked standing to defend an appeal of a lower court decision in her favor after she had left state employment); Karcher v. May, 484 U.S. 72, 74 (1987) (holding that public officials who had previously participated in a lawsuit as interveners solely in their official capacities as state legislators lacked standing to appeal an adverse judgment after they had left office).

14

Hollingsworth, 570 U.S. 693, 672. See also Brnovich v. Democratic Nat’l Comm., No. 19-1257, slip op. at 12 (U.S. July 1, 2021) (holding that the Arizona Attorney General, whom state law authorized to represent the state in any federal court action, had standing to prosecute the appeal of a Ninth Circuit decision that an Arizona voting restriction violated the Voting Rights Act of 1965).

15

See ArtIII.S2.C1.6.7 Federal and State Legislators and Standing.

16

See No. 18-281, slip op. at 4–5 (U.S. June 17, 2019).