597 F.2d 840 (3rd Cir. 1979), 78-1863, Frissell v. Rizzo

Docket Nº:78-1863.
Citation:597 F.2d 840
Party Name:Lee FRISSELL, Appellant, v. Frank L. RIZZO, Mayor of the City of Philadelphia and Sheldon L. Albert, City Solicitor of the City of Philadelphia and City of Philadelphia, Pennsylvania.
Case Date:February 20, 1979
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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597 F.2d 840 (3rd Cir. 1979)

Lee FRISSELL, Appellant,


Frank L. RIZZO, Mayor of the City of Philadelphia and

Sheldon L. Albert, City Solicitor of the City of

Philadelphia and City of Philadelphia,


No. 78-1863.

United States Court of Appeals, Third Circuit

February 20, 1979

Argued Dec. 12, 1978.

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[Copyrighted Material Omitted]

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Richard A. Ash, Lyman & Ash, Philadelphia, Pa., for appellant.

Sheldon L. Albert, City Sol., James M. Penny, Jr., Deputy City Sol., Tyler E. Wren, Asst. City Sol., for appellees.

Before GIBBONS, VAN DUSEN and ROSENN, Circuit Judges.


GIBBONS, Circuit Judge:

In this civil rights action we consider when, if ever, a citizen and taxpayer is entitled to bring suit to redress a First Amendment injury to his relationship with a newspaper. The district court dismissed the complaint for want of standing. We conclude that, while in some instances of First Amendment injury recognition of a newspaper reader's standing might be proper, this case is not one of them. We therefore affirm.


This lawsuit arises out of a dispute between Mayor Frank Rizzo of Philadelphia

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and the Philadelphia Evening Bulletin, a major newspaper in that community. On June 11, 1978, the Bulletin published a report that the City of Philadelphia had begun negotiations with American Family Life Assurance Company, an out-of-state insurance firm, concerning a program of optional cancer insurance for City employees. The local representative of American Family, Alfred E. Smith O'Neill, was a leader in the then current drive to revise the Philadelphia City Charter to permit Mayor Rizzo to seek a third term of office.

Mayor Rizzo was apparently upset by the Bulletin's report. He called the managing editor of the paper and denounced as false its account of the negotiations. The Bulletin stood by its story. On Tuesday, June 13, 1978, the Mayor announced to the press that he had instructed City officials to withdraw all of the City's legal advertising from the Bulletin "forever or as long as I'm Mayor." He made it plain that the withdrawal of advertising was a response to the Bulletin's story, and was punitive in nature. As he put it: "You have to hit them in the pocketbook, where it hurts." The gross value of the advertising withdrawn is alleged to be $280,000 per annum.

On June 15, appellant Frissell brought this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, naming as defendants the Mayor, the City Solicitor, and the City itself. The complaint alleged that appellant was a resident, taxpayer, and registered voter of Philadelphia. It claimed that the effect of the withdrawal of advertising from the Bulletin was "to chill and inhibit freedom of the press and freedom of expression in the City, to the detriment of plaintiff and other citizens." The relief sought included preliminary and permanent injunctions barring the defendants "from denying newspapers customary public advertising as a reprisal for publication of news articles deemed offensive by the Mayor."

At the hearing on the motion for a preliminary injunction, the district judge, Sua sponte, raised the issue of plaintiff's standing to bring the action. After hearing argument, the judge dismissed the complaint for lack of standing. This appeal followed.


Broadly put, the question raised by a dismissal for want of standing is "whether the litigant is entitled to have the court decide the merits" of the legal controversy before it. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). This inquiry normally turns not upon "the fitness for adjudication . . . of the legal questions" at issue, but rather on "the nature and sufficiency of the litigant's concern with the subject matter of the litigation." 1 The Supreme Court has recently followed a two stage analysis of standing. First, it has required that the claimant demonstrate that he, himself, has been exposed to some actual or threatened injury. E. g., Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). This requirement is related to the constitutional limitation of the judicial power to "cases and controversies," and reflects the traditional notion that "Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party." Warth v. Seldin, supra, 422 U.S. at 499, 95 S.Ct. at 2205. The legislative and coercive powers of an Art. III court are therefore properly invoked only in aid of that remedial function, not as an independent justification for the exercise of jurisdiction.

Once the court finds Art. III, or "pure" standing, it must then determine whether the claim is barred by nonconstitutional, prudential limitations on the exercise of its jurisdiction. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-82, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976);

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Warth v. Seldin, supra, 422 U.S. at 498, 95 S.Ct. 2197. Where the harm asserted is "a 'generalized grievance' shared in substantially equal measure by all or a large class of citizens" that fact counsels against the exercise of jurisdiction. E. g., Warth v. Seldin,supra, 422 U.S. at 499, 95 S.Ct. at 2205; Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 176-78, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). Closely related to this prudential standard is the general rule barring, outside of a narrowly limited class of cases, suits in which standing is rested on one's status as a federal taxpayer. Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Cf. Flast v. Cohen, 392 U.S. 83, 114, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (Stewart, J., concurring). And even when a litigant has demonstrated a concrete and particularized injury to himself, he is usually permitted to assert only his own legal rights as a ground for decision in his favor, not those of third parties not before the court. Warth v. Seldin, supra, 422 U.S. at 499, 514, 95 S.Ct. 2197; United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

Several justifications for these standing rules have been articulated. One is judicial economy. The federal courts have an institutional interest in avoiding the costs of adjudication unless the requested relief is genuinely needed. The requirement that an injury capable of redress be pleaded and proved helps to provide that assurance. Schlesinger v. Reservists to Stop the War, supra, 418 U.S. at 221, 94 S.Ct. 2925. The further requirement that the plaintiff be himself hurt is additional evidence that the grievance alleged is strongly felt and not merely factitious. On a deeper level, the Court's standing rules recognize a constitutional preference for solving social and political problems by consent. Warth v. Seldin, supra, 422 U.S. at 500, 95 S.Ct. 2197; United States v. Richardson, supra, 418 U.S. at 188-89, 94 S.Ct. 2940 (Powell, J., concurring). Standing rules place the burden on the person seeking a non-majoritarian, court-imposed solution to demonstrate the need for judicial intervention. 2 These institutional interests in the avoidance of ephemeral litigation or collision with majoritarian decisions are the primary justification for standing rules.

A secondary justification for those rules is protection of the quality of the court's adjudication of constitutional issues. In theory, at least, both the requirement that the constitutional claim be presented by a party with a genuine stake in the action and the requirement that the complaint come from the mouth of the person who actually suffered the illegal injury assure that the court will obtain from the attorneys in the case a fuller and more accurate account of the considerations relevant to the decision than it would otherwise receive. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); See also, Singleton v. Wulff, supra, 428 U.S. at 114, 96 S.Ct. 2868; Schlesinger v. Reservists to Stop the War, supra, 418 U.S. at 221, 94 S.Ct. 2925. In view of the relatively minor injuries which have been held to warrant a grant of standing, it may be doubted whether in most cases standing rules provide more than formal assurance of vigor in the litigation. Still, the concern that litigants may, by exaggeration or understatement, distort the interests of those not parties to the suit is a real and a continuing one.

Of course, the court's inquiry into the costs of intervention, including the risk of a mistaken adjudication, is not conducted in a vacuum. A denial of standing, even to a less-than-ideal claimant, may also impose important costs. Thus, while standing

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should not depend upon the "merits of the plaintiff's contention that particular conduct is illegal," Warth v. Seldin, supra, 422 U.S. at 500, 95 S.Ct. at 2206; Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), it often implicates a court's belief that a grant of standing to challenge the asserted illegality is necessary or desirable in order to advance the constitutional or statutory policies at issue in the litigation. The Supreme Court has expressly acknowledged the relevance of substantive policy where the issue is the relaxation or reinforcement of prudential standing limitations. Warth v. Seldin, supra, 422 U.S. at 500, 95 S.Ct. 2197. In such cases, it has suggested, the question is whether "the constitutional or statutory provision in question implies a right of action in the plaintiff." Id. at 501, 95 S.Ct. at 2206. The same considerations must, we think, be considered in the definition of an Art. III case or controversy. Injury in fact, after all, is not mentioned in Art. III, and case or controversy is surely...

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