Gary Dickey Jr. v. Iowa Ethics and Campaign Disclosure Board

• Court: Supreme Court of Iowa
• Decided: May 1, 2020
• Docket: 19-0094
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 19–0094

Filed May 1, 2020

GARY DICKEY JR.,

Appellant,

vs.

IOWA ETHICS AND CAMPAIGN DISCLOSURE BOARD,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Jeanie K.

Vaudt, Judge.

A citizen appeals the dismissal of his petition for judicial review of a

ruling by the Iowa Ethics and Campaign Disclosure Board. AFFIRMED.

Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and David M. Ranscht,

Assistant Attorney General, for appellee. 2

MANSFIELD, Justice.

I. Introduction.

At the end of 2017, the Governor and her spouse traveled to

Memphis, Tennessee, on a corporate jet. An individual donor to her

campaign paid for the trip. While in Memphis, the Governor engaged in

activities related to her 2018 election campaign and also attended the

Liberty Bowl football game. Her campaign committee reported the trip as

a $2880.00 campaign contribution from the individual, relying on an Iowa

Ethics and Campaign Disclosure Board (Board) rule that requires a

candidate who receives noncommercial air transportation from a

corporation to reimburse the corporation at the rate of the undiscounted

coach class airfare.

An attorney with campaign finance experience complained to the

Board that the Governor had underreported the fair market value of the

trip. When the Board dismissed the complaint, the attorney petitioned for

judicial review pursuant to Iowa Code section 17A.19 (2017). The district

court dismissed the petition for lack of standing, and the court of appeals

affirmed.

On further review, we affirm the judgment of the district court and

the decision of the court of appeals, substantially for the reasons set forth

in their cogent opinions. We conclude the attorney is not an “aggrieved or

adversely affected” party within the meaning of Iowa Code section 17A.19.

While parties who allege they are missing information that the campaign

laws require to be disclosed may have standing, see FEC v. Akins, 524 U.S.

11, 21, 118 S. Ct. 1777, 1784 (1998), this case is different. The attorney

in this case does not allege he is lacking any relevant information and

merely voices a disagreement over the reporting method used by the

candidate committee. 3

II. Facts and Procedural History.

On December 30, 2017, the Governor and her spouse traveled to

Memphis, Tennessee, on a corporate private jet. 1 The jet was owned by

Sedgwick Claims Management Services, Inc.—a Memphis-based company

that does business with the state, administering workers’ compensation

claims filed by injured state employees. Sedgwick’s President and CEO,

David North, paid for the flight by reimbursing the company for the cost of

the private jet service provided. While in Memphis, the Governor engaged

in activities related to her election campaign and also attended the Liberty

Bowl football game in which Iowa State University was a participant. 2

To comply with campaign disclosure requirements, on its January

19, 2018 disclosure report, the Kim Reynolds for Iowa candidate

committee reported an in-kind contribution of $2880.00 as the fair market

value of the airfare. See Iowa Code §§ 68A.402–.402A (2017) (outlining

disclosure requirement and information to be disclosed). The committee

listed the donor, North; the description of the in-kind contribution,

travel/flight; and the estimated fair market value, $2880.00.

After a news article appeared regarding the Governor’s late-

December trip, attorney Gary Dickey filed a complaint with the Board. In the complaint, Dickey alleged the committee underreported the fair market

value of the in-kind contribution from North. Dickey claimed that the fair

market value of the round-trip service for the Governor and her spouse on

1Two adult children of the Governor and her spouse also came on the trip but did not participate in campaign activities. Another citizen filed a complaint with the Board about that issue. The Board dismissed that complaint, finding that Iowa law permitted the adult children’s acceptance of the plane trip as a gift. See Iowa Code §§ 68B.2(11) (limiting “[i]mmediate family members” to “the spouse and dependent children of a public official or public employee”), .22(1) (prohibiting a public official “or that person’s immediate family member” from accepting or receiving a gift “from a restricted donor”). 2The Governor’s family paid personally for their football tickets. 4

the private jet was higher than $2880.00. To support this assertion,

Dickey attached three round-trip quotes for private charter seats on a

Gulfstream G200, the kind of jet on which the Governor and her spouse

had flown to Memphis on December 30, 2017.

The matter went before the Board on September 20, 2018. After

discussion, the Board dismissed the complaint. In its written order of

dismissal, the Board relied in part on Iowa Administrative Code

rule 351—4.47(4)(a), which states that when a candidate “uses

noncommercial air transportation made available by a corporate entity,”

the candidate shall reimburse the corporate entity in advance for “the

coach class airfare (without discounts)” if the destination is served by

regularly scheduled commercial service. The Board added,

While the rule expressly allows a candidate . . . to reimburse a corporate entity for the use of a corporate airplane, we never intended for this rule to prohibit a candidate’s committee or permissible contributor to similarly reimburse a corporation for the fair market value of the use of an airplane.

In sum, the Board found no indication that the Governor’s campaign

committee had violated any law.

On October 9, Dickey filed a petition for judicial review in the District

Court for Polk County. The petition alleged that the Board had improperly

relied on rule 351—4.47(4)(a) and Internal Revenue Service regulation

26 C.F.R. § 1.61-21. According to Dickey, based on quotes from three

private jet service providers, the value of the December 30, 2017 round-

trip flight was “far in excess of $2,880.00.” Dickey sought reversal and

remand.

The Board filed a pre-answer motion to dismiss. It urged that Dickey

lacked standing to seek judicial review of the Board’s ruling. Dickey

resisted the motion, and the court heard oral argument on November 16, 5

2018. Thereafter, on December 26, the district court granted the Board’s

motion. The court reasoned in part as follows,

Regardless of which party is more correct about valuation, Mr. Dickey has not been injured by the Board’s action. The committee has reported the in-kind contribution and its estimated value. Mr. Dickey has access to that reported value and is free to disagree with that reported value. ... .... . . . Mr. Dickey has not been deprived of any information. He simply disagrees with the reported valuation. The quotes he obtained demonstrate that he can independently evaluate the reported value.

Dickey filed a notice of appeal on January 16, 2019. We transferred

the case to the court of appeals. On September 11, the court of appeals

affirmed the district court’s dismissal of Dickey’s petition. The court

concluded, “We agree with the district court Dickey has not demonstrated

‘a specific and injurious effect’ such that he may obtain judicial review of

the Board’s ruling.”

On October 1, Dickey applied for further review, and we granted his

application.

III. Standard of Review. “We review a decision by the district court to dismiss a case based

on the lack of standing for errors at law.” Hawkeye Foodservice Distrib.

Inc., v. Iowa Educators Corp., 812 N.W.2d 600, 604 (Iowa 2012) (quoting

Godfrey v. State, 752 N.W.2d 413, 417 (Iowa 2008)).

IV. Analysis.

Iowa Code section 68B.33 provides that “[j]udicial review of the

actions of the [B]oard may be sought in accordance with chapter 17A.”

The Iowa Administrative Procedure Act (IAPA), chapter 17A, provides that

“a person or party who is aggrieved or adversely affected by agency action 6

may seek judicial review of such agency action.” Iowa Code § 17A.19.

Thus, to have standing to challenge an administrative action in court

under the IAPA, “the complaining party must (1) have a specific, personal,

and legal interest in the litigation; and (2) the specific interest must be

adversely affected by the agency action in question.” Medco Behavioral

Care Corp. of Iowa v. Iowa Dep’t of Human Servs., 553 N.W.2d 556, 562

(Iowa 1996); see also Polk County v. Iowa State Appeal Bd., 330 N.W.2d

267, 273 (Iowa 1983). Notably, “a person may be a proper party to agency

proceedings and not have standing to obtain judicial review.” Richards v.

Iowa Dep’t of Revenue & Fin., 454 N.W.2d 573, 575 (Iowa 1990).

A “general interest” in the proper enforcement of the law cannot

support standing to obtain judicial review. Id. “A general interest shared

by all citizens in making sure government acts legally is normally

insufficient to support standing . . . .” Godfrey, 752 N.W.2d at 423–24.

For example, in Richards, we held that an individual’s interest in seeing

the tax laws properly enforced was not enough to support standing, but

the pecuniary effects of a higher tax burden due to the improper grant of

a tax exemption to somebody else could be sufficient. 454 N.W.2d at 575–

76.

In this case, Dickey’s petition alleges the Governor and her spouse

flew to Memphis on December 30, 2017, to attend a campaign event and

watch the Liberty Bowl. They traveled on a 2010 Gulfstream jet owned by

Sedgwick, a Memphis-based company that administers workers’

compensation claims filed by injured state employees. The chief executive

officer of the corporation, North, personally reimbursed the corporation for

the use of the plane, and the Governor’s candidate committee reported the

trip as a contribution from the CEO with an estimated fair market value 7

of $2880. The petition alleges that the value of the flights taken by the

Governor and her spouse was actually “far in excess of $2,880.”

The petition seeks review of the Board’s decision that the Governor’s

candidate committee properly reported the fair market value of the flights

taken by the Governor and her spouse. The Board found the fair market

value of the trip could be reported using coach class airfare between Des

Moines and Memphis, based on the Board’s own rule 351—4.47(4). 3

Dickey alleges that rule 351—4.47(4) was inapplicable and that the

candidate committee “underreported” fair market value. 4

Critically, for standing purposes, Dickey does not allege that he

lacks any relevant information concerning this December 30 campaign

contribution that took the form of a plane trip. In fact, Dickey includes

considerable detail in his petition and also incorporates by reference a

newspaper article with additional detail. Dickey contends only that a

higher value of the flights should have been reported than actually was

reported.

Dickey’s declaration is of the same ilk. It too does not suggest that

he personally is injured by deficient campaign reporting concerning the

3Iowa Administrative Code rule 351—4.47(4) provides in part, a. Air travel. A candidate, candidate’s agent, or person traveling on behalf of a candidate who uses noncommercial air transportation made available by a corporate entity shall, in advance, reimburse the corporate entity as follows: (1) Where the destination is served by regularly scheduled commercial service, the coach class airfare (without discounts). 4Dickey notes that rule 351—4.47(4) by its terms speaks to the amount the

candidate committee must reimburse the corporation for the campaign’s use of the jet, not the amount the campaign must report as a contribution if another individual reimburses the corporation for the use of the jet. Of course, even if rule 351—4.47(4) is limited to its literal terms, this means that North could have contributed $2880 to the Governor’s campaign committee and the committee could have turned around and paid $2880 to Sedgwick for the flights. The Board evidently viewed the distinction between the two scenarios as immaterial. 8

December 30 flight. Dickey instead recites in three paragraphs his prior

expertise in advising campaigns. He then states that he “regularly

consult[s] with candidate committee reports filed with the [Board] and the

Federal Election[] Commi[ssion] to aid in [his] evaluation of candidates for

public office.” He adds that he has voted in every Iowa gubernatorial

election since becoming legally eligible to vote, that he reviews campaign

disclosure reports before casting his vote, and that he “find[s] access to

accurate campaign finance information necessary for [him] to evaluate the

gubernatorial candidates and track whether a candidate’s most generous

donors receive special favors in return.”

These general statements about the desirability of accurate

campaign finance reporting, however, are not tied to the specific complaint

in this case. Dickey does not allege that he needs (or needed) any

additional information before deciding whether or not to vote for the

Governor. Dickey does not allege that he lacks (or lacked) any information

relevant to the Governor’s trip to Memphis on December 30. His own

petition describes the mode of travel, whose plane it was, who paid for the

trip, and what the payor’s relationship to the State was.

Perhaps Dickey’s unstated position is that the Board should

abandon rule 351—4.47(4) and develop a different rule for future use. But

that is not what his complaint and petition seek. Dickey did not ask for

rulemaking or a declaratory order. Instead, Dickey’s complaint was

directed at the Governor’s candidate committee alleging specific

underreporting of a dollar amount in regard to a specific trip.

Dickey argues he has standing under the United States Supreme

Court’s decision in FEC v. Akins, 524 U.S. 11, 118 S. Ct. 1777 (1998). In

that case, a group of voters sought judicial review of a Federal Election

Commission (FEC) determination that the American Israel Public Affairs 9

Committee (AIPAC) was not a political committee under federal election

law. Akins, 524 U.S. at 13–14, 118 S. Ct. at 1780–81. The Court found

that the voters had standing because registration as a political committee

would require AIPAC to disclose its donors, contributions, expenditures,

and disbursements. Id. The voters in turn were being injured by lacking

this information. Id. at 20–21, 118 S. Ct. at 1784. As the Court explained,

The “injury in fact” that respondents have suffered consists of their inability to obtain information—lists of AIPAC donors (who are, according to AIPAC, its members), and campaign-related contributions and expenditures—that, on respondents’ view of the law, the statute requires that AIPAC make public. There is no reason to doubt their claim that the information would help them (and others to whom they would communicate it) to evaluate candidates for public office, especially candidates who received assistance from AIPAC, and to evaluate the role that AIPAC’s financial assistance might play in a specific election. Respondents’ injury consequently seems concrete and particular.

Id. at 21, 118 S. Ct. at 1784.

This case is different. The relief that Dickey seeks from the Board—

a determination that the Governor’s candidate committee underreported

the fair market value of the trip—will not provide him any additional

information. Dickey already knows the facts about the trip. In fact, he

attached to his complaint three different air charter quotes for a

Gulfstream G200 to support his views that the trip was worth more than

the candidate committee reported. He even came up with his own fair

market value, stating that the seats on the plane should be valued at

“$4,580 on the low-end, $8,458 on the high-end, and an average of

$6,216.”

An administrative decision that the Governor’s candidate committee

underreported the fair market value of the plane trip might result in some

adverse publicity for the Governor. Still, even if a petitioner desired that 10

result, it would not be the kind of personal interest that would support

standing. Courts exist to hear claims brought by injured parties; Dickey

is not injured.

As the United States District Court for the District of Columbia has

explained, there is a critical distinction between denials of requests for

information and denials of “requests for information concerning ‘whether

a violation of the law has occurred.’ ” Friends of Animals v. Jewell,

115 F. Supp. 3d 107, 113 (D.D.C. 2015) (quoting Common Cause v. FEC,

108 F.3d 413, 418 (D.C. Cir. 1997)). The complaint in the present case

falls into the latter category, and such requests do not satisfy the injury-

in-fact requirement. Id.; accord Vroom v. FEC, 951 F. Supp. 2d 175, 179

(D.D.C. 2013) (“Mr. Vroom seeks no additional facts but, rather, a legal

determination . . . .”).

In Citizens for Responsibility & Ethics in Washington (CREW) v. FEC,

799 F. Supp. 2d 78 (D.D.C. 2011), a watchdog group complained to the

FEC that a political action committee had disbursed money in travel

expenses to benefit a congressman’s presidential campaign which should

have been reported as a contribution to the campaign. Id. at 81–82. The

FEC dismissed CREW’s complaint, reasoning that at most half the funds

spent by the PAC should have been reported as a contribution to the

campaign, which would have resulted in a de minimis excessive

contribution of only $100. Id. at 83–84. Subsequently, the district court

found that CREW had no standing to pursue judicial review, observing

that “Plaintiffs’ Amended Complaint demands only amended FEC filings to

reclassify disbursements of which they are already aware . . . .” Id. at 89.

That is essentially the situation here. Dickey simply wants the

Board to say that the original filing was wrong and to require the 11

Governor’s candidate committee to make an amended filing that values

the plane trip at $6216.

An earlier case involving CREW is also relevant. In Citizens for

Responsibility & Ethics in Washington v. FEC, 401 F. Supp. 2d

115 (D.D.C. 2005), aff’d, 475 F.3d 337 (D.C. Cir. 2007), the watchdog

group had complained about the delivery of a potential donor master list

to the Bush-Cheney reelection campaign, which it contended was an illegal

in-kind contribution. Id. at 116–17. The FEC agreed the contact list

constituted an in-kind contribution but closed the investigation. Id. at

117. CREW then filed a judicial-review complaint. Id. CREW wanted “the

FEC to require the administrative defendants to assign a monetary value

to the list, and to disclose publicly that dollar figure . . . .” Id. The district

court dismissed CREW’s complaint for lacking of standing, reasoning in

part,

Whether the list is worth one hundred dollars or one thousand, for example, is of no moment because the public already knows: (1) that an illegal in-kind contribution took place; (2) that the in-kind contribution was a master contact list containing the names and contact information of conservative activists; (3) that the list’s monetary value is negligible; and (4) the identities of the individuals and campaign involved in the illegal transaction. This readily available information, rather than the precise value that CREW seeks, is what appears to be “useful in voting.”

Id. at 121.

Arguably, Dickey’s position is weaker here. He is not suing as a

watchdog group and has no members’ interests to assert. He can only

assert his own informational interest. His petition and exhibits make clear

that there is no gap in his knowledge regarding the December 30, 2017

trip that would be filled by granting his Board complaint. 12

V. Conclusion.

For the foregoing reasons, we affirm the judgment of the district

court and the decision of the court of appeals.

All justices concur except Appel, J., who dissents and McDermott,

J., who takes no part. 13

#19–0094, Dickey v. Iowa Ethics & Campaign Disclosure Bd.

APPEL, Justice (dissenting).

I respectfully dissent. The sole issue raised in this case is whether

the Iowa legislature in Iowa Code chapter 68B (2017) established the cause

of action that Gary Dickey asserts in this action. I conclude that the best

interpretation of the statute is that it establishes a statutory right to

disclosure of accurate information and that when inaccurate information

is allegedly provided and the Iowa Ethics and Campaign Disclosure Board

(Board) takes no action, the statutory right may be enforced by Dickey or

any other complainant under the Iowa Administrative Procedures Act

(IAPA).

I. Overview of Relevant Campaign Finance Legislative Provisions.

A. Disclosure Requirements for In-Kind Contributions. In Iowa

Code section 68A.402A, the legislature imposed substantive requirements

for disclosure of campaign contributions and expenditures by candidate

committees. Iowa Code section 68A.402A(1)(d) requires disclosure of in-

kind contributions, and the committee receiving an in-kind contribution

is required to “report the estimated fair market value of the in-kind contribution.” If a candidate receives an in-kind contribution but does not

disclose its fair market value in its report, a violation of Iowa Code chapter

68A occurs. Id.

B. Enforcement Provisions. The legislature provided for

enforcement of the substantive provisions of Iowa Code chapter 68A in the

succeeding chapter, Iowa Code chapter 68B. The legislature provided that

“[a]ny person may file a complaint alleging that a . . . committee . . . has

committed a violation of chapter 68A.” Id. § 68B.32B(1). Upon receipt of 14

a complaint, the Board staff reviews the complaint to determine “if the

complaint is sufficient as to form.” Id. § 68B.32B(2).

If a complaint is “sufficient as to form,” it is referred “for legal

review.” Id. Upon completion of legal review, the chairperson of the Board

is advised whether, in the opinion of the legal advisor, the complainant

states an allegation which is “legally sufficient.” Id. § 68B.32B(4). After

receiving the opinion of the legal advisor, the chairperson refers the matter

to the Board for a formal determination of the sufficiency of the allegations

in the complaint. Id. § 68B.32B(5).

If the Board determines that the complaint is not sufficient, the

complaint is dismissed, with notice of dismissal stating the reason or

reasons for the dismissal sent to the complainant. Id. § 68B.32B(6). The

Board may, however, initiate an investigation. Id. § 68B.32B(7). If the

Board determines after investigation that there is no probable cause, the

complaint may be dismissed, with notice to the complainant. Id.

§ 68B.32B(9).

If the Board determines there is probable cause, it may initiate a

contested case proceeding. Id. If the Board concludes that a violation

occurred after a contested case hearing, it may issue various remedial

orders. Id. § 68B.32D(1). If a person fails to comply with an action of the

Board, the Board may petition the district court for an order for

enforcement of the action of the Board. Id. § 68B.32D(3).

C. Judicial Review. Iowa Code section 68B.33 is a two-pronged

provision related to judicial oversight. It states, “Judicial review of the

actions of the board may be sought in accordance with chapter 17A.

Judicial enforcement of orders of the board may be sought in accordance

with chapter 17A.” Id. § 68B.33. This provision authorizes judicial review

both of actions and the failure to act by the Board. Iowa Code section 15

17A.19 provides for judicial review of agency action by “a person or party

who is aggrieved or adversely affected by agency action.”

II. Akins, “Informational Standing,” and Legislative Action.

A. Introduction. For the most part, the parties characterize the

question of whether Dickey may challenge the Board’s dismissal of his

complaint as a question of standing. Dickey spends considerable time in

his brief urging that this case involves “informational standing” under the

important case of FEC v. Akins, 524 U.S. 11, 118 S. Ct. 1777 (1998). He

also claims, however, that “[t]he question is whether the statute grants the

plaintiff the cause of action that he asserts.” Bank of Am. Corp. v. City of

Miami, 581 U.S. ___, 137 S. Ct. 1296, 1302 (2017). The Board suggests

that Dickey does not qualify for informational standing under applicable

precedents because he already knows the information which he

purportedly seeks and that his efforts simply amount to an attempt to

force the Board to enforce what Dickey sees as the law against the

candidate committee in this case.

To the extent the question of standing is involved in this case, it

raises an issue of state law. While the United States Constitution in Article

III limits the exercise of judicial power to “cases” and “controversies,” there

is no comparable provision in the Iowa Constitution. U.S. Const. art. III,

§ 2.

With the notable exception of Akins and its progeny, some federal

caselaw has tended to emphasize the limits on access to the federal courts.

In particular, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 563–66, 112

S. Ct. 2130, 2138–39 (1992), the Supreme Court departed from its prior

trajectory by discovering new, more restrictive standing requirements to

be applied in federal courts. 16

State courts as courts of general jurisdiction, however, operate

under a different tradition. See Dep’t of Revenue v. Kuhnlein, 646 So. 2d

717, 720 (Fla. 1994). The state court tradition tends to emphasize a

preference for expeditious determination of controversies on the merits.

See, e.g., Jen Elec., Inc. v. County of Essex, 964 A.2d 790, 801–02 (N.J.

2009) (“ ‘[O]verall we have given due weight to the interests of individual

justice, along with the public interest, always bearing in mind that

throughout our law we have been sweepingly rejecting procedural

frustrations in favor of “just and expeditious determinations on the

ultimate merits” ’ . . . premised on a core concept of New Jersey

jurisprudence, that is, that our ‘rules of procedure were not designed to

create an injustice and added complications but, on the contrary, were

devised and promulgated for the purpose of promoting reasonable

uniformity in the expeditious and even administration of justice.’ ” (first

quoting Crescent Park Tenants Ass’n v. Realty Equities Corp. of N.Y., 275

A.2d 433, 438 (N.J. 1971); and then quoting Handelman v. Handelman,

109 A.2d 797, 802 (N.J. 1954))).

A body of scholarship has emerged suggesting that state courts

should decline to follow the federal model on standing issues in light of

their own constitutional traditions. See, e.g., F. Andrew Hessick, Standing

in Diversity, 65 Ala. L. Rev. 417, 418 (2013) (“One consequence of

understanding standing to be bound up in the merits is that, in cases

involving state law brought under diversity jurisdiction, standing should

turn on state law.”); Jack L. Landau, State Constitutionalism and the Limits

of Judicial Power, 69 Rutgers U. L. Rev. 1309, 1315–16 (2017) [hereinafter

Landau, State Constitutionalism] (“[S]tate courts are mistaken in relying on

federal justiciability doctrine at all in determining the existence of

constitutional limitations on the exercise of state judicial power . . . [since] 17

federal and state courts are different in significant ways . . . [and the]

federal justiciability analysis does not stand up to scrutiny on its own

terms.” (Emphasis omitted.)); Hans A. Linde, The State and the Federal

Courts in Governance: Viva La Différence, 46 Wm. & Mary L. Rev. 1273,

1274 (2005) [hereinafter Linde, State and Federal Courts] (“We should not

assume one common analysis in the face of legal differences that are truly

constitutional—that is to say, ‘constitutive’ of government—and for which

state courts take on responsibilities that federal courts decline.”).

A number of states have used the textual difference between Article

III and provisions of state constitutions to reject the federal standing

jurisprudence. For instance, in Lansing Schools Education Ass’n v.

Lansing Board of Education, 792 N.W.2d 686 (Mich. 2010), the Michigan

Supreme Court declared, “There is no support in either the text of the

Michigan Constitution or in Michigan jurisprudence . . . for recognizing

standing as a constitutional requirement or for adopting the federal

standing doctrine.” Id. at 693. Similarly, the Mississippi Supreme Court

in SASS Muni-V, LLC v. DeSoto County, 170 So. 3d 441 (Miss. 2015),

declared, “ ‘It is well settled that “Mississippi’s standing requirements are

quite liberal” ’ compared to the standing requirements set out in Article III

of the United States Constitution.” Id. at 445–46 (quoting State v. Quitman

County, 807 So. 2d 401, 405 (Miss. 2001)). Indeed, the Mississippi

Supreme Court has stated that “while federal courts adhere to a stringent

definition of standing, limited by Art. 3, § 2 of the United States

Constitution to a review of actual cases and controversies, the Mississippi

Constitution contains no such restrictive language.” Quitman County, 807

So. 2d at 405. Similarly, the New Jersey Supreme Court has observed that

“[u]nlike the Federal Constitution, there is no express language in

New Jersey’s Constitution which confines the exercise of our judicial 18

power to actual cases and controversies.” Crescent Park Tenants Ass’n,

275 A.2d at 437 (citing U.S. Const. art. III, § 2; N.J. Const. art. VI, § 1);

see also ACLU of N.M. v. City of Albuquerque, 188 P.3d 1222, 1226–27

(N.M. 2008); Couey v. Atkins, 355 P.3d 866, 899–900 (Or. 2015) (en banc).

Several states have held that standing generally is determined by

reference to the individual cause of action, approximating older state and

federal caselaw. For instance, in Save Homosassa River Alliance, Inc. v.

Citrus County, 2 So. 3d 329 (Fla. Dist. Ct. App. 2008), in a dissent,

standing was equated with access to a cause of action. Id. at 343 (Pleus,

J., dissenting). Similarly, the North Carolina Supreme Court in Goldston

v. State, 637 S.E.2d 876 (N.C. 2006), declared that access to the court was

dependent upon the cause of action. Id. at 879–80.

Some states, however, have taken the position that standing

requirements under a state constitution are similar to that imposed by

Article III and that, as a result, federal caselaw may be persuasive

authority. See, e.g., Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd., 226

P.3d 567, 569 (Mont. 2010). Even where the question of standing is

prudential rather than jurisdictional, federal caselaw may be used for

guidance on discretionary standing questions. For instance, in Greer v.

Illinois Housing Development Authority, 524 N.E.2d 561 (Ill. 1988), the

Supreme Court of Illinois noted that while it was not required to follow

federal caselaw, Illinois would look to the federal caselaw for guidance

selectively rather than automatically adopting the federal approach

wholesale. Id. at 574. In Dover Historical Society v. City of Dover Planning

Commission, 838 A.2d 1103 (Del. 2003), the Delaware Supreme Court

stated that although it applied the concept of standing as a matter of self-

restraint, Delaware courts generally apply the same standards as the

federal courts. Id. at 1111. The approach that simply looks for state 19

exceptions to federal doctrine has been criticized as “incoherent.” Landau,

State Constitutionalism, 69 Rutgers U. L. Rev. 1324–25.

Even when federal caselaw may be used as guidance on the standing

question, state courts have departed from federal standing doctrine in a

number of important areas. For instance, a number of states have a

“public interest” exception to their prudential standing requirements. See,

e.g., Sears v. Hull, 961 P.2d 1013, 1019 (Ariz. 1998) (en banc) (finding an

exception under state law to waive standing requirements for “issues of

great public importance that are likely to recur”); Higgins v. Hale, 476

N.E.2d 95, 96 (Ind. 1985) (granting standing to a court of appeals case

“[b]ecause the issues involved are of great public interest”); Perella v. Mass.

Tpk. Auth., 772 N.E.2d 70, 73 (Mass. App. Ct. 2002) (exploring

Massachusetts law related to the invocation of public right doctrine in

standing); Narragansett Indian Tribe v. State, 81 A.3d 1106, 1110 (R.I.

2014) (“On rare occasions . . . this Court will overlook the standing

requirement by invoking the so-called ‘substantial public interest’

exception in order to decide the merits of a case of substantial public

importance.”); ATC S., Inc. v. Charleston County, 669 S.E.2d 337, 341 (S.C.

2008) (“In cases which fall within the ambit of important public interest,

standing will be conferred ‘without requiring the plaintiff to show he has

an interest greater than other potential plaintiffs.’ ” (quoting Davis v.

Richland Cty. Council, 642 S.E.2d 740, 742 (S.C. 2007))); Gregory v.

Shurtleff, 299 P.3d 1098, 1102–03 (Utah 2013) (“While it is ‘the usual rule

that one must be personally adversely affected before he has standing to

prosecute an action . . . it is also true this Court may grant standing where

matters of great public interest and societal impact are concerned.’ ”

(quoting Jenkins v. State, 585 P.2d 442, 443 (Utah 1978))); Wash. Nat’l

Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish Cty., 459 P.2d 633, 635 20

(Wash. 1969) (finding exception when “a controversy is of serious public

importance and immediately affects substantial segments of the

population and its outcome will have a direct bearing on the commerce,

finance, labor, industry or agriculture generally”); see also John Dimanno,

Beyond Taxpayers’ Suits: Public Interest Standing in the States, 41 Conn.

L. Rev. 639, 640 (2008) (applying the federal standing requirements and

states’ public interest exception and finding that the public interest

exception is “appropriate in state courts, given the significant differences

in constitutional background, governance structures, and historical

common law developments between federal and state judicial systems”).

But see M. Ryan Harmanis, States’ Stances on Public Interest Standing, 76

Ohio St. L.J. 729, 729 (2015) (analyzing generally the legal and policy

rationales underlying states’ rejection of federal standing doctrine in cases

implicating the public interest exception, yet “concluding that its

underlying rationales are insufficient to warrant bypassing standing’s

requirement of an actual injury”).

Others allow broad taxpayer standing to challenge official action well

beyond the confines of federal caselaw established in Valley Forge

Christian College v. Americans United for Separation of Church & State, Inc.,

454 U.S. 464, 102 S. Ct. 752 (1982). See, e.g., Chapman v. Bevilacqua, 42

S.W.3d 378, 383 (Ark. 2001) (explaining that under Arkansas law, citizens

must only be a citizen and taxpayer to have standing in public fund cases,

noting also that interest for standing in like cases is to be given “a very

broad construction”); Reeder v. Wagner, No. 435, 2008, 2009 WL 1525945,

at *2 (Del. June 2, 2009) (“Even absent the showing of a particularized

injury, however, this Court has recognized in certain cases that a plaintiff

may have standing, as a taxpayer, to enjoin the unlawful expenditure of

public money or the misuse of public property.”); McKee v. Likins, 261 21

N.W.2d 566, 570 (Minn. 1977) (observing that “[i]n contrast with the

Federal courts, it generally has been recognized that a state or local

taxpayer has sufficient interest to challenge illegal expenditures”). See

generally Joshua G. Urquhart, Disfavored Constitution, Passive Virtues?

Linking State Constitutional Fiscal Limitations and Permissive Taxpayer

Standing Doctrines, 81 Fordham L. Rev. 1263 (2012) (contrasting the state

and federal approached regarding taxpayer standing, and expounding on

the theories undergirding each approach).

In addition, states have not necessarily accepted the serpentine

course of federal caselaw on standing. For instance, in the highly

controversial case of Lujan, the majority of the Supreme Court announced

a new and more restrictive approach to standing. 504 U.S. at 572–73, 112

S. Ct. at 2142–43. A number of state courts have rejected application of

Lujan under their state constitutions. See, e.g., City of Greenwood Vill. v.

Petitioners for Proposed City of Centennial, 3 P.3d 427, 437 n.8 (Colo. 2000)

(en banc) (considering the narrowed standing requirements under Lujan

and specifically finding that “[o]ur standing doctrine does not require these

refinements”); Andross v. Town of West Hartford, 939 A.2d 1146, 1157–59

(Conn. 2008) (weighing federal and Connecticut caselaw on standing and

ultimately resolving their rejection of federal norms in favor of more liberal

state standards); Citizens for Prot. of N. Kohala Coastline v. County of

Hawai’i, 979 P.2d 1120, 1127 (Haw. 1999) (“[Defendant’s] reliance on

Lujan . . . [is] misplaced, inasmuch as the United States Supreme Court’s

doctrine on the issue of standing does not bind us.”); Stockmeier v. Nev.

Dep’t of Corr. Psychological Review Panel, 135 P.3d 220, 225–26 (Nev.

2006) (examining the Lujan approach, examining the history of state-

crafted standing, and ultimately rejecting the Lujan approach under

Nevada law), abrogated on other grounds by Buzz Stew, LLC v. City of North 22

Las Vegas, 181 P.3d 670, 672 n.6 (Nev. 2008); Kellas v. Dep’t of Corr., 145

P.3d 139, 143 (Or. 2006) (“[W]e cannot import federal law regarding

justiciability into our analysis of the Oregon Constitution and rely on it to

fabricate constitutional barriers to litigation with no support in either the

text or history of Oregon’s charter of government.”); West v. Seattle Port

Comm’n, 380 P.3d 82, 86 (Wash. Ct. App. 2016) (finding the restrictive

Lujan approach as fundamentally opposed to the broad Washington

approach). Other state courts, however, have embraced the federal

standing doctrine as articulated in Lujan. See, e.g., Blackmon v. Tenet

Healthsys. Spalding, Inc., 667 S.E.2d 348, 350 n.6 (Ga. 2008) (adopting

implicitly the Lujan approach to standing); ABC Agra, LLC v. Critical Access

Grp., Inc., 331 P.3d 523, 525 (Idaho 2014) (outlining the Idaho caselaw

favoring the Lujan standing doctrine); Plan Helena, Inc., 226 P.3d at 569

(likening the narrowness of federal justiciability under Article III to that

found in article VII, section 4 of the Montana Constitution); Moore v.

Middletown, 975 N.E.2d 977, 982 (Ohio 2012) (adopting Lujan outright

regarding standing); Cable v. Union Cty. Bd. of Cty. Comm’rs, 769 N.W.2d

817, 825 (S.D. 2009) (adopting the Lujan standard for standing, and

ultimately rejecting petitioner’s claim on that basis). See generally

Benjamin T. Sharp, Stepping into the Breach: State Constitutions as a

Vehicle for Advancing Rights-Based Climate Litigation, 14 Duke J. Const.

L. & Pub. Pol’y Sidebar 39, 46–52 (2019) (examining the federal standing

doctrine as it relates to state constitutional claims for climate litigation).

At least three states, however, have engaged in wholesale

reformulation of their standing requirements. In Lansing Schools

Educational Association, the Michigan Supreme Court gave its standing

doctrine an overhaul. 792 N.W.2d at 699–702. The Oregon Supreme

Court did the same in Couey, 355 P.3d at 875–76. And finally, in Kuhnlein, 23

646 So. 2d 717, the Florida court reexamined its reliance on federal

standing doctrine. Id. at 720.

More than fifteen years ago, Hans Linde noted that “many lawyers,

judges, and academics assume that federal formulas for review of official

actions equally apply to state law.” Linde, State and Federal Courts, 46

Wm. & Mary L. Rev. at 1273. Parties appearing before our court have

generally simply assumed that the federal caselaw on standing is

applicable in Iowa notwithstanding the lack of “case” or “controversy”

language in the Iowa Constitution.

Following the limited advocacy, our caselaw suggests that we look

to federal cases for guidance as we consider, as a self-imposed prudential

matter, whether to provide access to the courts to specific litigants. See

Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 452 (Iowa

2013) (characterizing standing as “[o]ur self-imposed standing inquiry”);

Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 869 (Iowa 2005) (“[T]he federal

test for standing is based in part upon constitutional strictures and

prudential considerations while our rule on standing is self-imposed.”);

Hawkeye Bancorp. v. Iowa Coll. Aid Comm’n, 360 N.W.2d 798, 802 (Iowa

1985) (“Unlike the federal courts, state courts are not bound by

constitutional strictures on standing.”).

Thus, our standing doctrine is not constitutionally based. In

applying the prudential doctrine, we recognized a public interest exception

to mootness and have at least indicated a willingness to consider a public

interest exception generally to conventional standing doctrine. Godfrey v.

State, 752 N.W.2d 413, 419–20 (Iowa 2008) (stating willingness to consider

a public interest exception to standing requirements, generally); Rush v.

Ray, 332 N.W.2d 325, 326 (Iowa 1983) (finding a public interest exception

to the mootness doctrine). We have also allowed taxpayer standing more 24

broadly than would be the case under federal jurisprudence. Godfrey, 752

N.W.2d at 420–24, 429.

In sum, the question of whether Dickey has standing in this case to

litigate his claim is a question of state law. Further, under state law,

standing is a self-imposed prudential doctrine that does not have

constitutional dimension. In the exercise of self-imposed prudential

discretion, we may follow federal caselaw to the extent it is persuasive but

are under no obligation to do so.

B. Contours of Relevant Federal Jurisprudence Regarding

Standing by Legislative Action.

1. Introduction. This case involves the question of whether Dickey

has standing as a result of legislative action in Iowa Code chapters 68A

and 68B. The question arises: what role does legislative action have in

determining whether a party has standing to litigate in court?

2. Early recognition of congressional power to create causes of action

brought by strangers. Article III of the United States Constitution, as a

textual matter, contains no reference to an injury-in-fact requirement,

often cited in some recent federal cases as a requirement for standing. The

notion of standing does not appear in Supreme Court cases until 1944

when the Court decided Stark v. Wickard, 321 U.S. 288, 306, 64 S. Ct.

559, 569 (1944). And the concept of “injury in fact” did not surface until

around 1970. See generally Cass R. Sunstein, What’s Standing After

Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 201

(1992) [hereinafter Sunstein, After Lujan] (finding the Supreme Court, in

analysis of its own caselaw, suggested that injury in fact was a

requirement under the Article III framework).

Scholars have noted that English practice prior to the United States

Constitution allowed strangers to have standing in a number of cases. 25

See, e.g., id. at 171 (“In both England and America [from the founding until

1920], actions by strangers, or by citizens in general, were fully

permissible and indeed familiar.”). Further, early congressional action

authorizing qui tam 5 and informer’s actions 6 suggest that suits without

personal injury by persons who were acting as representatives of others

were not viewed as raising constitutional problems under Article III. See

id. at 170–77. The congressional enactment of qui tam and informer’s

actions in the era of the constitutional adoption has been cited as

demonstrating that Article III was not intended to limit congressional

power to create a cause of action and remedies even on behalf of relative

strangers to an event or transaction. Id. at 177.

3. Legislative power to create citizen standing. The Supreme Court

has historically recognized the power of the legislature to authorized

aggrieved parties to appeal from agency action. For instance, in FCC v.

Sanders Bros. Radio Station, 309 U.S. 470, 60 S. Ct. 693 (1940), the

Supreme Court rejected the government’s argument that the plaintiff did

not have standing. There, the Court emphasized that “[i]t is within the

power of Congress to confer such standing to prosecute an appeal.” Id. at

477, 60 S. Ct. at 698.

Another example of legislative power to create causes of action with

remedies for strangers is Havens Realty Corp. v. Coleman, 455 U.S. 363,

102 S. Ct. 1114 (1982). In Havens Realty, the Court noted that Congress

declared it unlawful “[t]o represent to any person because of race, color,

religion, sex, or national origin that any dwelling is not available for

5A qui tam action gives citizens a right to bring a civil suit to enforce federal criminal law. Sunstein, After Lujan, 91 Mich. L. Rev. at 175. 6An informer’s action allowed a person to bring an action to enforce public duties. Sunstein, After Lujan, 91 Mich. L. Rev. at 175. 26

inspection, sale, or rental when such dwelling is in fact so available.” 455

U.S. at 367 n.2, 102 S. Ct. at 1118 n.2 (quoting section 804 of the Fair

Housing Act of 1968, 42 U.S.C. § 3604(d)). In Havens Realty, the Supreme

Court held that Congress created the injury, namely, a “statutorily created

right to truthful housing information.” Id. at 374, 102 S. Ct. at 1122; see

also Sunstein, After Lujan, 91 Mich. L. Rev. at 189–92.

These United States Supreme Court cases stand for the proposition

that to the extent standing doctrine is based on prudential concerns, the

legislative branch has the power to override them by statute. If we were to

choose to follow these federal cases, since standing is entirely prudential

in Iowa, the legislature may establish who has standing to litigate a

particular cause of action it has established.

4. Splintered departures in Lujan. The Supreme Court in Lujan took

the law of standing, in fits and starts, in a new direction. In Lujan, two

members of Defenders of Wildlife asserted injury arising from EPA action

announcing that the Endangered Species Act would only apply to actions

in the United States or on the high seas. 504 U.S. at 557–59, 112 S. Ct.

at 2135. One person swore she traveled to Egypt and viewed the habitat

of the endangered Nile crocodile and intended to do so again. Id. at 563,

112 S. Ct. at 2138. Another person visited Sri Lanka in 1981 and observed

the habitat of the Asian elephant and leopard. Id. at 563–64, 112 S. Ct.

at 2138. The Supreme Court found that the plaintiffs lacked injury in fact

as their plans to visit impacted areas were too indefinite to support injury

in fact. Id. at 566–67, 112 S. Ct. at 2139–40. Further, the Lujan majority

suggested that there was an “irreducible constitutional minimum” of

standing elements: (1) injury in fact, (2) traceability, and (3) redressability.

Id. at 560–61, 112 S. Ct. at 2136. 27

The development by the Supreme Court of a constitutionally based

injury-in-fact requirement was foreshadowed by a 1983 article written by

then-Judge Antonin Scalia. See Antonin Scalia, The Doctrine of Standing

as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev.

881, 881–82 (1983) (suggesting that “courts need to accord greater weight

than they have in recent times to the traditional requirement that the

plaintiff’s alleged injury be a particularized one, which sets him apart from

the citizenry at large”). The development of an injury-in-fact constitutional

requirement has been highly contested, as demonstrated by the academic

criticism 7 and the number of state courts that have declined to follow it. 8

In a concurring opinion, however, Justice Kennedy noted that had

the plaintiffs actually purchased an airplane ticket, had a specific date to

visit, or used the sites on a regular basis, they might have had standing.

Lujan, 504 U.S. at 579–80, 112 S. Ct. at 2146 (Kennedy, J., concurring in

part and in the judgment). Importantly, Justice Kennedy emphasized that

courts “must be sensitive to the articulation of new rights of action that do

not have clear analogs in our common-law tradition.” Id. at 580, 112 S. Ct.

at 2146. And, he emphasized that “Congress has the power to define

injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Id. According to Justice Kennedy,

7See, e.g., F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 320–21 (2008) (“The Constitution charges Congress with enacting laws. The injury-in-fact requirement, however, restricts Congress’s power to create rights . . . thus prevent[ing] Congress from exercising the full extent of its power to create rights.”); Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 Duke L.J. 1170, 1170–71 (1993) (stating that the majority opinion “is an insupportable judicial contraction of legislative power to make judicially enforceable policy decisions”); Sunstein, After Lujan, 91 Mich. L. Rev. at 217 (claiming that the opinion “reads Article III broadly, invests it with general, controversial values, and ultimately recommends judicial invalidation of the outcomes of democratic processes”). 8See cases cited in division IIA above. 28

Congress failed to “identify the injury it seeks to vindicate and relate the

injury to the class of persons entitled to bring the suit.” Id. at 580, 112

S. Ct. at 2147; see Sunstein, After Lujan, 91 Mich. L. Rev. at 201–02.

There was, obviously, some tension between the majority’s reference

to an “irreducible constitutional minimum,” Lujan, 504 U.S. at 560, 112

S. Ct. at 2136 (majority opinion), and Justice Kennedy’s opinion

emphasizing the power of Congress to define injuries, id. at 580, 112 S. Ct.

at 2146–47 (Kennedy, J., concurring in part and in the judgment).

Certainly the notion that Congress had a role in determining who had

standing to litigate was not foreclosed under the concurring opinion. See

Massachusetts v. EPA, 549 U.S. 497, 516, 127 S. Ct. 1438, 1453 (2007)

(stating congressional authorization is of “critical importance to the

standing inquiry”); Mark Seidenfeld & Allie Akre, Standing in the Wake of

Statutes, 57 Ariz. L. Rev. 745, 748 (2015) (finding Congress can “recognize

interests and thereby influence judicial evaluation of whether an interest

is sufficiently concrete and immediate to justify standing”).

5. Informational standing under Akins. The United States Supreme

Court considered an important standing issue in Akins. In Akins, voters

attempted to convince the Federal Election Commission (FEC) to treat the

American Israel Public Affairs Committee (AIPAC) as a political committee

within the meaning of the Federal Election Campaign Act of 1971 (FECA).

Akins, 524 U.S. at 13–14, 118 S. Ct. at 1780–81. The FEC came to the

conclusion that AIPAC was not a political committee subject to regulation

under the FECA. Id. at 18, 118 S. Ct. at 1783. The plaintiffs brought an

action claiming they were statutorily entitled to challenge the action of the

FEC. Id. The FEC asserted, among other things, that the voters lacked

standing in their capacity as citizens and that the suit should be

dismissed. Id. 29

In an important opinion by Justice Kennedy, the Supreme Court

found sufficient injury in fact to conclude that the voters had standing.

Id. at 20, 118 S. Ct. at 1784. The Akins Court first found that, because

Congress had granted standing to “[a]ny party aggrieved,” the prudential

limits had been overcome. Id. at 19, 118 S. Ct. at 1783 (alteration in

original) (quoting 2 U.S.C. § 437g, now found at 52 U.S.C. § 30109(a)(8)(A)

(2018)). The Court then found injury in fact because the statute requires

that information about AIPAC donors and campaign contributors be made

public. Id. at 21, 118 S. Ct. at 1784. In the opinion of the Court, there

was a nexus between voter standing and the statutory harm that was

suffered––failure to disclose donor and expenditure information. Id. at 22,

118 S. Ct. at 1785. The Akins Court recognized that while prior decisions

favored the political process for resolution of widely shared grievances, the

availability of the political remedy “does not, by itself, automatically

disqualify an interest for Article III purposes.” Id. at 24, 118 S. Ct. at 1786.

On the question of redressability, the Akins Court held that plaintiffs had

standing to challenge a decision of the FEC based on improper legal

grounds. Id.

The Akins case was examined shortly after it was decided by

Professor Cass Sunstein, a leading constitutional scholar. Sunstein noted

that in Akins, the Court rooted standing “firmly in Congress’s

instructions.” Cass Sunstein, Informational Regulation and Informational

Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613, 637 (1999). The

injury-in-fact requirement was satisfied, according to Sunstein, because

the plaintiffs “were denied information to which they had a legal right.” Id.

at 638. In short, although labeled “injury in fact,” the determination turns

on what the law is: what does the law require to be made public? Id.

Sunstein concluded that “at least where the plaintiff seeks information, 30

and where Congress has created a legal interest and a right to bring suit,

the Constitution does not stand as an obstacle.” Id. at 643.

6. Post-Akins caselaw. There are a handful of post-Akins cases that

deal with the issue of standing to challenge an action by an administrative

agency in the context of election law. Most of them are federal cases

dealing with standing under Article III of the United States Constitution.

There is one case, however, that considers the standing of a voter in the

context of disclosure required pursuant to a state election disclosure

statute. In Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) (per

curiam), a nonpartisan political organization sought review of an FEC

action to dismiss a complaint concerning alleged violations of the federal

campaign elections law. The gist of the claim was that the Montana

Republican Party and the National Republican Senatorial Committee

violated federal law by making contributions in excess of legal limits to a

senatorial campaign and by failing to accurately report those contributions

and expenditures. Id. at 415. Although the FEC voted 3–2 to find probable

cause to believe violations occurred, four votes are requires to act under

federal law. Id. As a result of the deadlock, the FEC voted to dismiss the

matter. Id.

In a per curiam opinion, the court in Common Cause emphasized

that Common Cause was “less than clear in articulating the nature of the

information of which its members and the organization itself allegedly have

been deprived.” Id. at 417. The Common Cause court noted that Akins

declared that “[a] voter deprived of useful information at the time he or she

votes suffers a particularized injury” but characterized the Common Cause

complaint as simply seeking disclosure to the public of the fact that a

violation of federal law occurred. Id. at 418 (quoting Akins v. FEC, 101

F.3d 731, 737 (D.C. Cir. 1996), vacated, 524 U.S. 11, 118 S. Ct. 1777 31

(1998)). While Common Cause alleged that federal law provided that “any

person” could file a complaint with the FEC and that “any person”

aggrieved by an order could seek judicial review, the Common Cause court

held that, notwithstanding the statutory provisions, Article III of the United

States Constitution required more. Id. at 418. In support of their

conclusion, the Common Cause court cited Lujan for the proposition that,

notwithstanding the statutory provisions allowing a citizen to sue to

enforce the law, Common Cause was required to show discrete injury

flowing from the violation. Id. at 418–19.

A federal district court dealt with campaign finance matters in

Alliance for Democracy v. FEC, 362 F. Supp. 2d 138 (D.D.C. 2005). In

Alliance for Democracy, the petitioners claimed that a political committee

provided the John Ashcroft senatorial campaign with a valuable campaign

list of 100,000 donors and that neither the political action committee nor

the Ashcroft campaign reported the contribution. Id. at 139–40. After an

investigation, the FEC entered into a conciliation agreement which

concluded that the list was not a reportable contribution and did not

require disclosure of its value. Id. at 141. Alliance for Democracy (AFD)

sought to challenge the action of the FEC on appeal. Id. The district court

conducted an Article III analysis and held that because AFD had already

obtained the information it sought, it lacked standing to maintain the

action. Id. at 148–49.

In Mallof v. District of Columbia Board of Elections & Ethics, 1 A.3d

383 (D.C. 2010), the District of Columbia Court of Appeals considered a

case where plaintiffs challenged a determination of the Office of Campaign

Finance that a candidate had not violated local campaign finance law by

using government resources in a political campaign. Id. at 385. The gist

of the claim was that the incumbent candidate for city council used 32

government resources by using his council office as a backdrop for

photographs of himself and the uniformed chief of police that were used

in a campaign advertisement. Id. at 387. After an investigation, the board

elected to dismiss the action “because the photograph was not taken for a

campaign-related purpose and because [the chief of police] consented to

pose [with the councilman] in the photograph for a personal, not

campaign-related purpose.” Id. In administrative proceedings after the

election, the board held that the plaintiffs lacked standing to raise their

claims. Id. at 389–90.

On appeal, the Mallof court agreed. It focused its analysis on the

“case” or “controversy” requirement of Article III of the United States

Constitution. Id. at 395. According to the Mallof court, the plaintiffs

merely sought a declaration that a violation of campaign finance law

occurred, and such an allegation was insufficient under Article III. Id. at

399. The Mallof court emphasized that the plaintiffs were not seeking

information of any kind and, as a result, Akins had no bearing on the case.

Id. at 398–99.

Finally, in Lindemann v. Commission on Governmental Ethics &

Election Practices, 961 A.2d 538 (Me. 2008), the Supreme Judicial Court

of Maine considered a case in which the petitioner sought to appeal a

ruling of the Maine Commission on Governmental Ethics and Election

Practices. Id. at 540. The petitioner claimed that because of the

involvement of the Maine Heritage Policy Center (MHPC) in a statewide

campaign to enact a taxpayer bill of rights law (TABOR), MHPC was a

political action committee under Maine campaign finance law, requiring

MHPC to register and file reports with the commission. Id. In the

alternative, the petitioner asserted that the MHPC was required to report

its expenditures in support of TABOR under regulations related to efforts 33

to support or defeat ballot measures. Id. The commission found that the

MHPC was not a political action committee, but was required to report its

expenditures in support of the ballot initiative. Id. at 541. The report was

filed within thirty days of the decision. Id.

The Lindemann court noted that in Maine, standing is prudential

rather than constitutional. Id. In considering the standing question, the

Lindemann court noted that under the relevant Maine election finance

statute, “Only a ‘person aggrieved by the failure or refusal of the agency to

act’ ” is entitled to judicial review. Id. at 542 (quoting Me. Rev. Stat. tit. 5,

§ 11001(2) (2007)). In this case, the Lindemann court noted the agency

did act, and as a result, this statutory right did not kick in. Id. at 542–43.

In the alternative, the Lindemann court held that the petitioner was

not “aggrieved” in this case. Id. at 543. The Lindemann court noted that,

as a matter of statutory interpretation, the term “aggrieved” party under

the Maine Administrative Procedures Act (MAPA) had been interpreted by

the court to require particularized injury, that an agency action or inaction

must operate “prejudicially and directly upon the party’s property,

pecuniary or personal rights.” Id. at 543 (quoting Nelson v. Bayroot, LLC,

953 A.2d 378, 382 (Me. 2008)). Under Maine statutory precedent, “[b]eing

affected by a government action is insufficient to confer standing in the

absence of any showing that the effect in an injury.” Id. (quoting Collins

v. State, 750 A.2d 1257, 1260 (Me. 2000)). As a result of its statutory

interpretation of the term “aggrieved,” the Lindemann court determined

that the petitioner lacked standing in this case. Id. at 544.

The Lindemann court briefly reviewed Akins and emphasized that

unlike the FECA, Maine’s campaign statutes do not expressly provide a

right to judicial review. Id. In any event, the Lindemann court noted that

unlike in Akins, the petitioner was not deprived of useful political 34

information. Id. at 545. Under the commission’s alternate ruling, the

petitioner received information sought on MHPC’s financial involvement

with TABOR. Id. As a result, the Lindemann court held that Akins did not

apply. Id.

There were several important footnotes to the Lindemann opinion.

First, in footnote 9, the Lindemann court emphasized other statutes

afforded broader access to the courts than the MAPA. Id. at 543 n.9.

Specifically, the court noted that under Superintendent of Insurance v.

Attorney General, 568 A.2d 1197 (Me. 1989), the legislature provided that

“a party did not need show particularized aggrievement in order to have

standing pursuant to the Insurance Code statutes.” Lindemann, 961 A.2d

at 543 n.9. The Lindemann court emphasized that the Maine election

finance statutes did not “include an independent or more expansive grant

of standing.” Id.

The legislature’s prerogatives were further reinforced by the

Lindemann court in footnote 11. There, the court noted that “[b]ecause

standing in administrative appeals is statutorily based, whether standing

to challenge a determination of the Commission should extend to the

general public is a decision to be made by the legislature, not the

judiciary.” Id. at 545 n.11.

C. Cases from Other State Jurisdictions Related to

Legislatively Established (or Not) Causes of Action. I now turn to

caselaw in state jurisdictions dealing with the question of the power of the

legislature to enact statutes that enable broad groups of persons to

challenge administrative actions in the courts. As will be seen below, there

is substantial authority in state courts for the proposition that the

legislature has the power to establish causes of action that provide

litigants with the right to litigate in the state courts without interference 35

or restrictions by a state court unhappy with the substance of the

legislation.

By way of example, in Housing Authority v. Pennsylvania State Civil

Service Commission, 730 A.2d 935 (Pa. 1999), the Pennsylvania Supreme

Court considered an appeal by a county housing authority of a

determination by the state civil service commission that the appointment

of an applicant as executive director violated Pennsylvania’s Veterans’

Preference Act. Id. at 937. In considering standing issues in the case, the

Pennsylvania Supreme Court noted that the drafters of the Pennsylvania

Constitution did not restrict the courts to jurisdiction in matters involving

a “case” or “controversy.” Id. at 941. According to the Pennsylvania

Supreme Court,

if a statute properly enacted by the Pennsylvania legislature furnishes the authority for a party to proceed in Pennsylvania’s courts, the fact that the party lacks standing under traditional notions of our jurisprudence will not be deemed a bar to an exercise of this Court’s jurisdiction . . . .

. . . [T]he Pennsylvania legislature may vest a governmental agency like the Commission with the authority to enforce the veterans’ preference provisions . . . regardless of whether the Commission itself has suffered any cognizable injury which would afford it standing under our jurisprudence.

Id. Similarly, in Lansing Schools Education Association, the Michigan

Supreme Court considered whether teachers could bring a cause of action

under a statute against a schoolboard for failing to comply with its

statutory duty to expel students that have allegedly physically assaulted

those teachers. 792 N.W.2d at 688. The district court granted a motion

for summary judgment on the ground the plaintiffs lacked standing to

litigate. Id. at 689. 36

In reversing and remanding the case, the Michigan Supreme Court

employed its “long-standing historical approach to standing.” Id. at 699.

According to the Michigan Supreme Court, “[u]nder this approach, a

litigant has standing whenever there is a legal cause of action.” Id. The

Michigan Supreme Court further noted that standing may be conferred “if

the statutory scheme implies that the Legislature intended to confer

standing on the litigant.” Id.

Another case emphasizing the role of the legislature in creating

enforceable causes of action is Small v. Federal National Mortgage Ass’n,

747 S.E.2d 817 (Va. 2013). In Small, the Virginia Supreme Court

answered certified questions regarding the authority of a clerk of court to

initiate litigation related to the enforcement of a real estate transfer tax.

Id. at 819–20. The Virginia Supreme Court declared that the question was

not whether the plaintiff had a personal stake in the controversy or

whether the plaintiff’s rights would be affected, but rather whether “the

plaintiff . . . possess[es] the ‘legal right’ to bring the action, which depends

on the provisions of the relevant statute.” Id. at 820. The Small court cited

Virginia precedent involving procurement, noting that it had “examined

those statutes to determine whether the plaintiffs had standing” to litigate

their claims. Id. at 821. After canvassing the relevant statutes, the

Virginia Supreme Court concluded that the clerk lacked the authority to

litigate under the applicable statutes. Id. at 824; see Zachary D. Clopton,

Procedural Retrenchment and the States, 106 Calif. L. Rev. 411, 425 n.210

(2018) (noting that many states recognize statutorily created standing).

D. Relevant Iowa Caselaw. In older cases under the IAPA, we

indicated that in determining the meaning of the term “aggrieved,” a party

must show “(1) a specific personal and legal interest in the subject matter”

and “(2) a specific and injurious effect on this interest by the decision.” 37

Iowa Power & Light Co. v. Iowa State Commerce Comm’n, 410 N.W.2d 236,

239 (Iowa 1987) (quoting Iowa-Ill. Gas & Elec. Co. v. Iowa State Commerce

Comm’n, 347 N.W.2d 423, 426 (Iowa 1984)); see also Iowa Bankers Ass’n

v. Iowa Credit Union Dep’t, 335 N.W.2d 439, 443 (Iowa 1983).

In Godfrey, however, we altered the first prong of the test to require

only a specific personal or legal interest in the subject matter. 752 N.W.2d

418–19. Thus, under our current law, a party may satisfy the standing

test by showing a “legal interest” in the subject matter of the litigation and

demonstrating the challenged decision has a specific and injurious effect

on that “legal interest.”

In our caselaw, we did not permit the federal zone-of-interest test

articulated in Association of Data Processing Service Organizations, Inc. v.

Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 830 (1970), to limit standing in

challenges to agency action. See Iowa Bankers Ass’n, 335 N.W.2d at 442–

44. Nothing in Iowa Bankers, however, undermines the proposition that

determination of the scope of “legal interest” created by the statute

allegedly violated by an administrative agency is critical in determining

whether a legal interest has been violated and if that legal interest has

been injured.

Finally, as noted above and is briefly reprised here, our standing

doctrine is not constitutionally imposed but is prudential in nature. See,

e.g., Horsfield Materials, Inc., 834 N.W.2d at 452 (describing Iowa standing

requirements as “self-imposed”). As a result, the question of who is

aggrieved under the IAPA is purely a question of statutory interpretation.

III. Discussion.

Based on my review of the above authorities, I am convinced that

the sole question before us today is whether the legislature provided

Dickey with a substantive “legal interest” under Iowa Code chapters 68A 38

and 68B. Such a legal interest would support a right to bring an

enforcement action under the IAPA to require the Board to insist that

political committees submit accurate information for public disclosure.

The scope of the statutory legal interest, if any, is determined by looking

at whether the legislature has provided Dickey with a legal interest

supporting the claim he seeks to pursue in this case. If so, he has standing

to bring the claim. If not, he is not entitled to relief as he has not alleged

a common law or constitutional claim.

This approach is consistent with the state court cases cited above,

considering whether citizens have standing to enforce various statutory

provisions. In these cases, the key question is whether the legislature

provided the plaintiff with a substantive legal right to the relief sought,

and, if so, whether there is sufficient “injury in fact” to bring the action

when that right has been threatened by administrative action. See, e.g.,

Lansing Schools, 792 N.W.2d at 733; Housing Auth., 730 A.2d at 941;

Small, 747 S.E.2d at 820.

This basic principle is illustrated by the Iowa Public Records Act.

Iowa Code ch. 22. Under chapter 22, “[a]ny aggrieved person, any taxpayer

to or citizen of the state of Iowa . . . may seek judicial enforcement of the

requirements of this chapter . . . .” Iowa Code § 22.10(1). The legislature

has thus made it abundantly clear that any citizen may bring an action

without any injury other than the injury that arises from the violation of

the citizen’s substantive right to inspect and copy a public record. Id. A

plaintiff bringing an action under chapter 22, as evidenced by the broad

standing language included in section 22.10(1) and the lack of additional

requirements, may have a good reason or no reason at all for requesting

the disclosure, and therefore may even already know the information

contained in the public document. The key is that the legislature has 39

provided a substantive legal interest in the inspection and production of

public documents, and as a result, an injury to that legal interest occurs

whenever a custodian wrongfully withholds the documents. The legal

interest of the citizen under chapter 22 is in public disclosure and not

information for personal use.

In my view, the legislature, in enacting the provisions of chapters

68A and 68B related to campaign finance created a disclosure statute like

Iowa Code section 22.10(1). The legislature created an Iowa Ethics and

Campaign Disclosure Board. See id. § 68B.32(1). The legislature directed

the Iowa Ethics and Campaign Disclosure Board to review content and

verify information in the reports of campaign committees “to assure

accurate disclosure.” Id. § 68B.32A(4). Further, the legislature directed

the Iowa Ethics and Campaign Disclosure Board to assure that statements

and reports filed in accordance with this chapter “are available for public

inspection.” Id. § 68B.32A(7).

The substantive disclosure requirements are provided in Iowa Code

chapter 68A and include disclosure of expenditures and campaign

contributions. See generally id. § 68A.402A (outlining the information to

be disclosed in campaign finance reports). The legislature has provided

that “[a] committee receiving an in-kind contribution shall report the

estimated fair market value of the in-kind contribution.” Id.

§ 68.402A.1(d). The language of the statutes demonstrate that the

purpose of Iowa Code chapters 68A and 68B is public disclosure of

accurate campaign finance information.

The legislature provided in Iowa Code section 68B.32B that “[a]ny

person may file a complaint alleging . . . a violation of [the public disclosure

requirements].” Id. § 68B.32B(1). The fact that the legislature allowed

“any person” to file a complaint suggests that “any person” has been 40

broadly vested with a “legal interest” in accurate campaign finance

disclosure. After a person files a complaint, the Board reviews such

complaint under procedures outlined in the statute. Id. § 68B.32B(2)–(11).

Judicial review of the actions of the Board may then be sought in

accordance with chapter 17A. Id. at § 68B.33. If Dickey has a “legal

interest” in the disclosure he seeks, he is “aggrieved” under Iowa Code

section 17A.19(1) by the unfavorable action of the Board.

The question then becomes whether the provisions of Iowa Code

chapters 68A and 68B provide for “any person” a legal interest in public

disclosure of information related to expenditures and contributions. The

principle that the legislature may establish standing to bring a claim was

critical to the Akins decision. In Akins, Congress expressly declared that

a person whose complaint was dismissed by the FEC was entitled to seek

judicial enforcement. Akins, 524 U.S. at 19–21, 118 S. Ct. at 1783–84. As

Justice Kennedy noted in his concurrence in Lujan, the courts “must be

sensitive to the articulation of new rights of action that do not have clear

analogs in our common-law tradition.” 504 U.S. at 580, 112 S. Ct. at

2146. And, Justice Kennedy noted that the legislative branch may

“identify the injury it seeks to vindicate and relate the injury to the class

of persons entitled to bring suit.” Id. at 580, 112 S. Ct. at 2147.

The notion that the legislative branch may establish a cause of

action and vest members of the public with standing to litigate has

substantial support in the academic commentary. See, e.g., Richard J.

Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed

Limit on Legislative Power, 42 Duke L.J. 1170, 1181, 1192, 1201 (1993)

(observing that Congress has the power to confer standing legislatively and

that the courts should enforce the legislature’s policy decisions against

state agencies); Cass R. Sunstein, Standing and the Privatization of Public 41

Law, 88 Colum. L. Rev. 1432, 1433 (1988) (suggesting that the “principal

question [for standing] should be whether Congress has created a cause

of action”). As noted by Professor Chayes many years ago, “the legitimacy

of judicial action can be understood to rest on the delegation from the

people’s representatives.” Abram Chayes, The Role of the Judge in Public

Law Litigation, 89 Harv. L. Rev. 1281, 1314 (1976).

Note the critical difference between this case and Lindemann. In

Lindemann, the statute made no mention at all of a right to seek

enforcement. But Dickey’s position is stronger than in Lindemann. Iowa

Code section 68B.33 expressly authorizes Dickey to file his complaint with

the Board. Iowa Code § 68B.32B(1). It then goes on to state that

“aggrieved” persons may bring challenges to Board action under the Iowa

Administrative Procedures Act. So, as stated in footnotes 9 and 11 in

Lindemann, the question is: what substantive legal rights did the

legislature intend to bestow on Dickey? Unlike in Lindemann, it is clear

that the Iowa legislature provided a substantive right of some kind to be

enforced in the Iowa courts. The question then becomes: what is the scope

of that legal right that Dickey may enforce?

The majority, in essence, declares that Dickey may have a legal right

to force accurate disclosure of the names of contributors to a political

committee but does not have a substantive right to require accurate

disclosure in the amount of the contribution when he has a pretty good

idea of the actual cost of a private jet to ferry the Governor and others to

the Liberty Bowl.

But there is nothing in the Iowa campaign finance disclosure

statutes that makes that distinction. The campaign finance disclosure

statutes require that political committees accurately and publically

disclose the names of their contributors and that they accurately and 42

publicly disclose the amount of the contribution. Dickey has a statutory

legal right to complain to the Board about inaccurate disclosures in public

reports of any kind, not just the failure to list campaign contributors. His

statutory legal interest established by the statute is not solely in informing

himself, but in requiring accurate public disclosure for all to see. And, if

he is aggrieved by the action of the Board, he has the right to an appeal

under the IAPA.

The question then is whether he is aggrieved when he has filed a

complaint with the Board seeking an accurate public disclosure of the

costs of the Memphis trip. First, the majority suggests that his grievance

is too general to give rise to standing under Iowa Code section 17A.19(1).

See Godfrey, 752 N.W.2d at 423–24. But as noted in Akins, the term

“aggrieved” in the Federal APA suggests an intent to “cast the standing net

broadly.” 524 U.S. at 19–20, 118 S. Ct. at 1783. Further, as Akins states,

a harm can be concrete even though widely shared. Id. at 24, 118 S. Ct.

at 1786. The Akins Court further observed that an informational injury

related to voting, the most basic of political rights, is sufficiently concrete

to allow a party to litigate the issue. Id. at 24–25, 118 S. Ct. at 1786.

The Akins Court, in rejecting the prudential standing challenge,

noted that, like here, the legislature had “specifically provided . . . that

‘[a]ny person who believes a violation of this Act . . . has occurred, may file

a complaint with the Commission.’ ” Id. at 19, 118 S. Ct. at 1783 (quoting

2 U.S.C. § 437g, now found at 52 U.S.C. § 30109 (a)(8)(A)). Like Akins,

this case does not merely involve “harm to the ‘common concern for

obedience to law.’ ” Id. at 23, 118 S. Ct. at 1785 (quoting L. Singer & Sons

v. Union Pac. R.R., 311 U.S. 295, 303, 61 S. Ct. 254, 258 (1940)). The

harm of inaccurate public disclosure alleged in this case, like the harm in

Akins, “is sufficiently concrete and specific such that the fact that it is 43

widely shared does not deprive [the legislature] of constitutional power to

authorize its vindication in . . . courts.” Id. at 25, 118 S. Ct. at 1786.

Under the reasoning of Akins, Dickey has been aggrieved by the

denial of a statutory legal right established in Iowa Code chapters 68A and

68B. In my view, the substantive statutory legal right is broad enough to

include not only a right to enforce disclosure of the names of donors, as in

Akins, but also the right to force accurate public disclosure of amounts of

the donation. Where the legislature establishes a broadly applicable legal

right and provides that any person can seek enforcement before the Board,

a person is aggrieved under Iowa Code section 17A.19(1) when the Board

denies the party the relief sought.

The majority, however, interprets the statute more narrowly,

suggesting that the statute provides Dickey only with the substantive

statutory legal right to enforce it to obtain information that he does not

already possess. Under the majority opinion, there is no right to force

public disclosure, but only a personal right to obtain information. But

public disclosure, and not personal disclosure, is at the very core of Iowa

Code chapters 68A and 68B. There is little public interest in disclosure to

Dickey himself, but substantial public interest in disclosure to the public

generally.

Of course, the legislature could have employed more specific

language in chapter 68B. It could have said, for instance, that any

complainant denied relief by the Board is an aggrieved party under the

IAPA. Or, it could have said more clearly that any citizen could bring an

action to force accurate public disclosure of both the names of contributors

and the amounts of contributions.

I thus concede that the scope of the legal right created by the

legislature when it enacted Iowa Code chapters 68A and 68B is not entirely 44

clear. Of course, the legal right may be express, or it may be implied. See

Lansing, 792 N.W.2d at 699. In my view, there is adequate indication that

the legal right should be interpreted broadly enough to encompass

Dickey’s complaint.

What is crystal clear, however, is that nothing in the majority

opinion should be read as defeating the general proposition that the Iowa

legislature has the plenary power to create substantive legal interest that

citizens are generally entitled to enforce in the event the established legal

right is not recognized by an administrative agency. The legislature has

the right to create statutory causes of action that can be enforced by

citizens generally. Any “prudential” considerations must give way to the

legislature’s directive. When it enacts statutes that create statutory rights

and enforcement mechanisms, the legislature holds the keys to the

courthouse door that cannot be boarded up by the judiciary.

IV. Conclusion.

For the above reasons, I conclude that the district court erred in

concluding that Dickey lacked standing to litigate in this case. I take no

view, of course, on the underlying merits of his claim. As the Board

correctly asserts, if Dickey has standing in this case, the legal merit of his

claim should be determined by the district court in the first instance.