NEBRASKA STATE AFL-CIO v. State of Nebraska, 20719.

• Decision Date: 02 August 1971
• Docket Number: No. 20719.,20719.
• Citation: 445 F.2d 1333
• Parties: NEBRASKA STATE AFL-CIO, Appellant, v. The STATE OF NEBRASKA, Appellee, Nebraska Association of Commerce and Industry, Intervenor.
• Court: U.S. Court of Appeals — Eighth Circuit

445 F.2d 1333 (1971)

NEBRASKA STATE AFL-CIO, Appellant, v. The STATE OF NEBRASKA, Appellee, Nebraska Association of Commerce and Industry, Intervenor.

No. 20719.

United States Court of Appeals, Eighth Circuit.

August 2, 1971.

Robert E. O'Connor, Benjamin M. Wall, Foulks, Wall & Wintroub, Omaha, Neb., on briefs for appellant.

Clarence A. H. Meyer, Atty. Gen. of Neb., Mel Kammerlohr, Asst. Atty. Gen., Robert A. Nelson, Sp. Asst. Atty. Gen., Lincoln, Neb., on briefs for appellee.

Edson Smith, Swarr, May, Smith & Andersen, Omaha, Neb., on briefs for intervenor.

Before MATTHES, Chief Judge, VAN OOSTERHOUT, Circuit Judge, and EISELE, District Judge.^*

PER CURIAM.

The plaintiff in this action, appellant here, is the Nebraska State AFL-CIO. It alleged in its original complaint below that it is an "unincorporated association". Although nothing appears of record to tell us who its members are, we were advised by counsel during oral argument that it is essentially a federation of local unions situated in Nebraska. It asks the Court to determine that a 1961 revision of the Nebraska statute commonly known as the "right-to-work" law is constitutionally invalid. It asserts such invalidity under the Nebraska constitution, the United States Constitution, and § 164(b) of Title 29 U.S.C.

We do not believe that the plaintiff has standing to bring the suit. Nor does the complaint herein present a case of actual controversy.

Appellant correctly notes that the Supreme Court recently made a comprehensive review of the concept of justiciability in Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L.Ed.2d 947. Part of that discussion is devoted to a review of the standing requirement, including a restatement of the rationale behind such a requirement. Id., at 98-101, 88 S. Ct. 1942. The Court there repeats an often-quoted test enunciated earlier in Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L.Ed.2d 663: Has the party seeking relief "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?" While the present appellant would presumably not insist that we deal only with constitutional questions, standing is no less essential to a judicial determination of questions short of constitutional ones. The requisite interest and adversity will vary greatly depending upon the issues presented. Here, the Nebraska State AFL-CIO does not have a sufficient stake in the outcome of the controversy it seeks to initiate; it was admitted in oral argument that plaintiff is not a bargaining unit which can or will attempt to enter...