Do you have to break a law before challenging a law?

[Whack-a-Mole]

Say Illinois passes a law that says, “It is illegal to cross the street on Sundays”.

It’s an absurd law and I want to challenge it as unconstitutional (or under whatever legal premise I can) to have it struck down.

Can I bring suit against the state just on my belief it is an inappropriate law or must I cross the street on a Sunday and be arrested for it before I can challenge it?

Granted my example is absurd (as it was meant to be) but it seems to be asking a lot of someone to break a law and potentially risk fines/jail just to test. If it is not overturned you are screwed. On the other hand I suppose the government could find itself swamped if any Tom, Dick or Harry could file suit challenging any law they simply did not like whether they had been directly affected by it or not.

If anyone is curious I am specifically thinking of something like the new South Dakota anti-abortion legislation. It seems a lot to ask someone to risk a felony charge and 5 years in jail to test the constitutionality of that law when whether it would be overturned or not is unclear to say the least.

Note that I offer the abortion bill as a further example and in NO WAY mean for this to become a debate on the merits of the South Dakota bill or abortions in general (plenty of that for you in GD if you like).

[David_Simmons]

Someone must be able to demonstrate legal standing in order to get a challenge into court.

One of the problems with access to justice … is the question of who has legal standing. Legal standing is the ability of a person to show a sufficient legal interest in a matter to allow him or her to bring a case to court.

[Whack-a-Mole]

@David Simmons

Someone must be able to demonstrate legal standing in order to get a challenge into court.

Ok…but IANAL so cannot discern how a court really determines that.

In the case above of the South Dakota law could a doctor who provides abortions in South Dakota claim standing without having to break the new law first?

[Martini_Enfield]

And here I was, ready with a whole spiel about Locus Standii, and someone’s beaten me to it. Smeg.

I believe that in Australia, you need to prove that the law would affect you in some material and fundamental way.

For example, if the State of Tasmania passes a law that makes it illegal to have The Crazy Frog Theme as a ringtone, then someone in Western Australia would have a hard time challenging that law as it basically has nothing to do with them (Nevermind that a law banning the Crazy Frog Theme would actually be a good thing, and I personally would nominate whoever got the law enacted for the Nobel Peace Prize, even if they were from Tasmania )

On the other hand, if the Queensland Government passed a law requiring everyone in the state to have The Crazy Frog Theme as their ringtone, I would most definitely have Locus Standii to challenge the law, assuming I hadn’t already been locked up in a padded cell after being driven completely mad by the incessant sound of that stupid smegging Frog eminating from every cellphone in Queensland…

[Northern_Piper]

In addition to standing, there’s the question of what sort of a suit one might bring. In the Commonwealth countries there is the declaratory action for just this type of situation: if you can show that the law directly affects you, and that if you were to break it there would be serious personal consequences, you would normally have standing to try to challenge by means of a declaratory action: i.e. asking the court to declare that the law is unconstitutional, or runs contrary to some other relevant law, etc. You wouldn’t be seeking damages, just the declaration.

The case which first recognized declaratory actions in England was Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.), which was a challenge to Lloyd George’s budget (the same budget that led to the House of Lords giving up its veto). It was exactly the sort of situation the OP asks about: the plaintiff objected to paying a particular tax and brought an action for a declaration, rather than refusing to pay the tax and running the risk of criminal sanctions. I believe it’s been followed in most Commonwealth countries.

[Campion]

As everyone’s pointed out, standing is a threshold issue; the requirement that a plaintiff have standing to sue stems from the Constitution’s “cases and controversies” requirement. Federal courts may only hear “cases and controversies.” It’s also an issue of judicial administration, because it’s a way to limit the cases that get filed.

How do you tell if someone has standing? First, the statute itself could tell you. It could say, for instance, “anyone who has been affected by an unfair business practice and who has suffered monetary damages thereby” may bring suit. This means that if you and I both see the same false advertisement, and I buy the product and you don’t do anything, I have damages and can sue, but you don’t.

If the statute doesn’t tell you, then you go to general principles of standing. A person has standing to challenge a law if he has been injured/adversely affected by the law, or if there is a non-speculative imminent danger that he will be injured/adversely affected by the law. In the area of abortion laws, case law is well-developed regarding standing, and an abortion provider likely has standing to sue to challenge South Dakota’s law (which I haven’t read, so I’m guessing) because the abortion provider is adversely affected by a law that limits how he can do his job and earn his living.

The US Supreme Court in Planned Parenthood v. Danforth discussed the standing issue in the abortion context, and described the plaintiffs as follows:

Two Missouri-licensed physicians, one of whom performs abortions at hospitals and the other of whom supervises abortions at Planned Parenthood, a not-for-profit corporation, brought suit, along with that organization, for injunctive and declaratory relief challenging the constitutionality of the Missouri abortion statute.

The plaintiffs alleged that the Missouri statute at issue violated various consitutional rights (Northern Piper, in the US we’d do a claim for declaratory relief – a judicial declaration that the statute is this or that – as well as seek an order enjoining the statute’s enforcement):

Plaintiffs sought declaratory relief and also sought to enjoin enforcement of the Act on the ground, among others, that certain of its provisions deprived them and their patients of various constitutional rights: “the right to privacy in the physician-patient relationship”; the physicians’ “right to practice medicine according to the highest standards of medical practice”; the female patients’ right to determine whether to bear children; the patients’ “right to life due to the inherent risk involved in childbirth” or in medical procedures alternative to abortion; the physicians’ “right to give and plaintiffs’ patients’ right to receive safe and adequate medical advice and treatment, pertaining to the decision of whether to carry a given pregnancy to term and the method of termination”; the patients’ right under the Eighth Amendment to be free from cruel and unusual punishment “by forcing and coercing them to bear each pregnancy they conceive”; and, by being placed “in the position of decision making beset with… inherent possibilities of bias and conflict of interest,” the physician’s right to due process of law guaranteed by the Fourteenth Amendment.

The Court reiterated that the physicians did not have to violate the law before challenging the statute:

With the exception specified in n. 2, (infra), we agree with the District Court that the physician-appellants clearly have standing. This was established in Doe v. Bolton, 410 U.S., at 188. Like the Georgia statutes challenged in that case, "The physician is the one against whom [the Missouri Act] directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.

So the long and the short of it is that, in general, one need not violate a law before challenging it, but as Martini Enfield points out, one must be in the group of people adversely affected by the law before one can sue.

[Cliffy]

To return to the street-crossing example, in federal court you’d bring a suit for declaratory judgment, asking the court to declare the statute unconstitutional. You would only have standing to bring such a suit if you planned to cross the street on Sunday but for the application of the statute. In this instance, you could solve this by testifying at trial that you want to cross on Sundays. As you can imagine, in more complex cases, the factual question of whether a Plaintiff has standing to bring a suit for declaratory relief is concommitantly more difficulat.

State court might be the same, or it might be different depending on the state. Some states do not have the same requirements for standing as the federal courts do, but I don’t know which states those are, and in which cases standing requirements are relaxed.

–Cliffy

[Northern_Piper]

@Campion

Northern Piper, in the US we’d do a claim for declaratory relief – a judicial declaration that the statute is this or that – as well as seek an order enjoining the statute’s enforcement

Thanks. We don’t join injunctive relief up here in this type of case, because the Crown is immune from injunctive relief. (Her Majesty’s courts can declare what Her Majesty’s legal obligations are, but they cannot tell Her Majesty to do something. That would be lèse-majesté. ) Instead, the courts rely on the honour of the Crown - once the law has been clarified, the Crown will carry out its obligations.