Wasserman v. Franklin County

911 S.E.2d 583, 320 Ga. 624

• Court: Supreme Court of Georgia
• Decided: January 28, 2025
• Docket: S23G1029
• Status: Published

Opinion

320 Ga. 624 FINAL COPY

S23G1029. WASSERMAN v. FRANKLIN COUNTY.

PINSON, Justice.

The Georgia Constitution grants Georgia courts the judicial

power. This power allows courts to resolve controversies about the

relative rights and obligations of the parties before us, and to enter

judgments that bind the parties to those decisions. The limits of this

power are enforced in part through the doctrine of standing, which

imposes threshold requirements that a party must meet to maintain

a lawsuit. In Sons of Confederate Veterans v. Henry County Bd. of

Commissioners., 315 Ga. 39 (880 SE2d 168) (2022) (“SCV”), we con-

cluded that the Georgia Constitution imposes a basic standing re-

quirement: to invoke the judicial power of a Georgia court, a plaintiff

must assert at a minimum that she has a legal right at stake, be-

cause without a right at stake, there is no actual controversy be-

tween the parties for a court to resolve.

Our standing holding in SCV requires us to revisit an earlier precedent. Before SCV, this Court had at times “uncritically im-

ported” holdings from federal courts about federal law into Georgia

standing law. In one such decision, we adopted the federal doctrine

of “third-party standing,” which allows a plaintiff who has asserted

none of her own rights to bring a lawsuit by asserting the rights of

third parties who are not before the court. And the plaintiff in this

case relies on this federal theory of standing for the only claim on

review in this Court. Given that theory’s apparent conflict with the

basic constitutional standing rule we recognized in SCV, we must

consider whether the federal doctrine survives as a means of obtain-

ing standing in Georgia courts.

I. Background

Sherran Wasserman agreed to sell land in Franklin County to

Anthony Pham. The sale was contingent on the approval by the

Franklin County Board of Commissioners of a conditional use per-

mit that would allow Pham to build and operate chicken houses on

the property. Pham applied for the permit, but after a public hear-

ing, the Board voted unanimously to deny the application.

2 After Pham’s application was denied, Wasserman sued the

Board and the County. She initially brought a number of claims un-

der state and federal law, but she voluntarily dismissed some of the

claims and conceded others, and the trial court dismissed her re-

maining state-law claims because they were barred by sovereign im-

munity. That left two claims under federal law: a claim that the

County violated Pham’s rights under the Equal Protection Clause of

the United States Constitution because it denied his application

based on his race, and a claim that the County violated Wasserman’s

equal protection rights as a “class of one” because it had no rational

basis for denying Pham’s application. The County moved for sum-

mary judgment, contending that Wasserman did not have standing

to assert a violation of Pham’s equal protection rights, and that her

“class of one” claim failed as a matter of law because Wasserman

was not similarly situated to people whose applications were ap-

proved and the objective criteria on which the denial was based had

a rational basis.

After a hearing, the trial court denied summary judgment. As

3 to standing, the court applied the federal doctrine of “third-party

standing,” citing the decision of this Court that had adopted that

doctrine, see Feminist Women’s Health Center v. Burgess, 282 Ga.

433 (651 SE2d 36) (2007). Applying the test supplied by that doc-

trine, the court concluded that genuine issues of material fact as to

whether parts of the third-party-standing test were met precluded

summary judgment on standing. The court went on to address the

merits of Wasserman’s equal protection claims and concluded that

genuine issues of material fact precluded summary judgment on ei-

ther of those claims.

The Court of Appeals reversed. Like the trial court, the Court

of Appeals assessed whether Wasserman had standing to assert

Pham’s equal protection rights by applying the federal doctrine of

third-party standing. Franklin County v. Wasserman, 367 Ga. App.

694, 696-697 (1) (888 SE2d 219) (2023).1 But the Court of Appeals

1 The Court of Appeals also recited the three-part test for Article III

standing in federal courts, citing our decision in SCV, 315 Ga. at 45 (2) (a). But although we described that federal test in SCV, we explained that “federal standing requirements do not control” the question whether a litigant has standing in state courts, and we went on to reject that standard in favor of one 4 rejected the trial court’s conclusion that issues of fact precluded

summary judgment on that question, concluding as a matter of law

that Wasserman had not shown a sufficiently “close relationship”

with Pham or that he faced a hindrance to bringing his own equal

protection claim. Id. at 697 (1). The Court of Appeals went on to con-

clude that Wasserman’s “class of one” claim could be rejected as a

matter of law. Id. at 699 (2).

Wasserman asked us to review the Court of Appeals’s conclu-

sion that she lacked standing to assert Pham’s equal-protection

rights.2 We granted review to consider whether a plaintiff may

properly rely on the federal doctrine of third-party standing to es-

tablish constitutional standing in Georgia courts.3

II. Constitutional Standing

Time and again we have criticized our own past practice of

grounded in Georgia law. Id. 2 Wasserman did not seek review with respect to her “class of one” equal

protection claim in this Court, so only the standing question is properly before us on the writ of certiorari. 3 The Attorney General filed an amicus brief in support of the appellee,

and the appeal was orally argued on October 22, 2024. 5 “uncritically importing” holdings of federal courts to resolve ques-

tions about the meaning of Georgia law. See SCV, 315 Ga. at 45 (2)

(a); Elliott v. State, 305 Ga. 179, 188 (II) (C) (824 SE2d 265) (2019);

Black Voters Matter Fund, Inc. v. Kemp, 313 Ga. 375, 392 (870 SE2d

430) (2022) (“BVMF”) (Peterson, J., concurring); Williams v. Powell,

320 Ga. 221, 236 (2) (908 SE2d 599) (2024) (Peterson, P. J., concur-

ring); Buckner-Webb v. State, 314 Ga. 823, 834 (1) (878 SE2d 481)

(2022) (Pinson, J., concurring). Like any legal text, the meaning of

Georgia law is determined primarily by its context, including the

structure and history of the text itself and the legal and historical

backdrop of its enactment. See City of Guyton v. Barrow, 305 Ga.

799, 805 (3) (828 SE2d 366) (2019). So unless a federal decision has

interpreted a provision that shares language and context with the

provision of Georgia law in question, it is of little use in figuring out

the meaning of the Georgia provision. Put another way, “[w]hen we

rely on such federal decisions without making sure the relevant text

and context match up, we risk giving an ‘interpretation’ of Georgia

law that is arbitrary, wrong, or both.” Buckner-Webb, 314 Ga. at 834

6 (1).

Just so with constitutional standing, the doctrine that polices

constitutional limits on the judicial power. In the past, this Court

has “uncritically adopted” certain aspects of federal standing doc-

trine. SCV, 315 Ga. at 45 (2) (a). But in our recent decision in SCV,

we questioned and then put a stop to that practice, at least with

respect to questions of constitutional standing in Georgia courts. As

we explained there, federal standing doctrine is grounded in the

United States Constitution’s limitation of the federal judicial power

to only certain kinds of “cases” and “controversies.” See id. (quoting

U.S. Const. Art. III, Sec. 2, Cl. 1). But that language is not found in

the Georgia Constitution, and as the balance of our decision showed,

careful attention to the legal context of the Georgia Constitution’s

grant of the “judicial power” to our courts yields a doctrine of consti-

tutional standing that is materially different from federal standing

doctrine. See id. See also BVMF, 313 Ga. at 393 (Peterson, J., con-

curring). Put simply, SCV made clear that questions about standing

to invoke the judicial power of Georgia courts must be answered by

7 construing and applying the Georgia Constitution, not by borrowing

federal standing doctrine (however convenient that might have

been).

Although SCV put an end to our old borrowing practice, lefto-

vers remain. One is the federal doctrine of “third-party standing,”

which allows a plaintiff to bring a lawsuit by “asserting the rights of

a third party” instead of her own, as long as she can meet a three-

part test. See, e.g., Powers v. Ohio, 499 U.S. 400, 411 (III) (111 SCt

1364, 113 LE2d 411) (1991). This Court uncritically imported that

doctrine into our law less than 18 years ago, see Burgess, 282 Ga. at

434-435 (1), and so the courts below applied it here. Having now dis-

carded federal standing doctrine as a proper source of rules of con-

stitutional standing in favor of our own Constitution, we must ask

whether the borrowed federal doctrine of third-party standing sur-

vives as a rule of standing in Georgia courts. That might be so for

one of two reasons: That theory of standing might pass muster under

Georgia’s own doctrine of constitutional standing. Or, if not, stare

decisis might compel us to retain the precedent that borrowed the

8 federal doctrine. We consider each possibility in turn.

A. Georgia’s Law of Constitutional Standing

We start with the question whether a plaintiff may establish

constitutional standing in Georgia courts under a theory of standing

that looks like federal third-party standing. This is a question of con-

stitutional construction. The doctrine of standing polices longstand-

ing limits on a court’s power to resolve legal disputes, and in Geor-

gia, this power — the “judicial power” — is conferred by our state

Constitution. See SCV, 315 Ga. at 45 (2) (a). Thus, to determine

whether a plaintiff may sue in Georgia courts under a federal-third-

party-standing theory, “we must consider whether the . . . judicial

power that the Georgia Constitution vests in Georgia courts” allows

our courts to resolve such a dispute. Id. at 46 (2) (a).

We have already established the framework for doing this con-

stitutional construction. In SCV, we explained that Article VI, Sec-

tion I, Paragraph I of the Georgia Constitution of 1983 expressly

“vest[s]” the “judicial power of the state” in certain classes of courts.

315 Ga. at 46 (2) (a). This provision has been “carried forward

9 without material change from its initial appearance in the 1798 Con-

stitution to the current Constitution of 1983,” id., so we presume

that it “has retained the original public meaning that provision had”

when it entered the 1798 Constitution, “absent some indication to

the contrary.” Id. at 47 (2) (a) (quoting Elliott, 305 Ga. at 183 (II)

(A)). That meaning is in turn determined by considering “the ‘com-

mon and customary usages of the words,’ as informed by their con-

text, including the broader legal backdrop — constitutional, statu-

tory, decisional, and common law — in which the text was adopted.”

Id. (quoting Elliott, 305 Ga. at 186-187 (II) (B)). But as we acknowl-

edged in SCV, the language of the Judicial Power Paragraph alone

“sheds little light” on the limits of the judicial power or the standing

requirements that police those limits, so context becomes all the

more important. Id. Thus, to understand whether the judicial power

of Georgia courts allows us to resolve cases where the plaintiff relies

on a particular theory of standing, we focus first on “the legal back-

ground against which the original Judicial Power Paragraph was

adopted in the 1798 Constitution, with the common law providing

10 the most critical context.” Id. In doing so, as we did in SCV, we also

consider whether our later decisional law relevant to the scope of the

“judicial power” sheds any light on the meaning of that language.

See id. at 50-62 (2) (b)-(c); Cobb County v. Floam, 319 Ga. 89, 94 (1)

(901 SE2d 512) (2024) (explaining that our review in SCV turned up

“consistent and definitive precedent” that established a rule of con-

stitutional standing rooted in the meaning of the “judicial power”).

See also Ammons v. State, 315 Ga. 149, 170 (1) n.19 (880 SE2d 544)

(2022) (Pinson, J., concurring) (“The judicial power has long been

understood to include the power to ‘liquidate,’ or settle with finality,

disputes about the meaning and operation of written laws.” (quoting

The Federalist No. 37, at 236 (James Madison) (Jacob E. Cooke ed.,

1961))).

The subject of this analysis is the federal doctrine of third-

party standing. That doctrine allows a plaintiff to ask a federal court

to decide the legal rights of a party not before the court rather than

the plaintiff’s own legal rights, as long as the plaintiff can establish

an “injury in fact” and, at least in some cases, a “close relation” to

11 the third party and some “hindrance” to the third party’s ability to

protect his own interests. Powers, 499 U.S. at 411 (III). Under this

doctrine, for example, a beer vendor had third-party standing to sue

Oklahoma officials in federal court to enjoin them from enforcing

state laws that set higher age limits for selling beer to men than to

women. See Craig v. Boren, 429 U.S. 190 (97 SCt 451, 50 LE2d 397)

(1976). The beer vendor did not assert that Oklahoma had violated

any of her own legal rights by imposing the different age restrictions.

See id. But the Supreme Court held that she had third-party stand-

ing to bring a claim that the equal protection rights of the affected

men — who were not parties to the litigation — were violated, be-

cause enforcement of the laws in question caused her an “injury in

fact” in the form of “a direct economic injury through the constriction

of her buyers’ market.” Id. at 194 (I). So, the basic question here is

whether a plaintiff would have constitutional standing under this

kind of theory in Georgia courts: that although the challenged con-

duct allegedly violated only a third party’s legal rights, the conduct

caused the plaintiff an “injury in fact,” so the plaintiff can ask a court

12 to decide whether the rights of the third party were violated.

This is a different question from the ones we had to answer in

SCV, where we considered whether our Constitution imposes juris-

dictional standing requirements in the first place (and if so, who had

standing to sue to enforce the public rights at issue there). But the

construction work we did in SCV goes a long way toward answering

whether a plaintiff has standing under a federal-third-party-stand-

ing theory in Georgia courts. As we determined there, both the rele-

vant legal context (mostly the common law) and our later decisional

law make clear that, at a minimum, a plaintiff must assert a viola-

tion of her legal rights — either her own private right, or a public

right shared by the relevant community — to invoke the judicial

power of Georgia courts, and that a plaintiff cannot establish stand-

ing by asserting merely factual harm or damage. See SCV, 315 Ga.

at 62 (2) (c) (iii). So we start here by reviewing the evidence of these

conclusions, with our focus trained on the implications for a plaintiff

asserting a theory of third-party standing. We then move beyond the

scope of SCV’s inquiry and consider directly whether anything in the

13 relevant legal context opens the door to a theory like federal third-

party standing.

1. Minimum Standing Requirements

(a) Common Law

The reach of the “judicial power” is informed in the first in-

stance by the legal backdrop against which it was first granted to

Georgia courts in 1798. See SCV, 315 Ga. at 46 (2) (a). In 1798, that

legal backdrop was largely made up of the common law. 4 So the

kinds of actions courts could (and could not) hear at common law are

“the most critical context” of the reach of the judicial power of Geor-

gia courts. Id. at 47 (2) (a).

At common law, actions could be classified into two broad cat-

egories: actions to resolve private rights, and actions to resolve pub-

lic rights. See, e.g., 3 William Blackstone, Commentaries on the

Laws of England *2 (1768) (dividing “wrongs” into “two sorts or

4 In 1784, our legislature adopted the common law of England as of May

14, 1776, as Georgia law, see OCGA § 1-1-10 (c) (1), and so it “has long been the backstop law of Georgia.” State v. Chulpayev, 296 Ga. 764, 780 (3) (b) (770 SE2d 808) (2015). 14 species”: “private wrongs,” which are “an infringement or privation

of the private or civil rights belonging to individuals, considered as

individuals,” and “public wrongs,” which are a “breach and violation

of public rights and duties, which affect the whole community, con-

sidered as a community”). Whether the right being adjudicated is

private or public can matter for assessing constitutional standing,

see SCV, 315 Ga. at 48-49 (2) (a), so it makes sense to address these

distinct kinds of actions separately. (But as we will see, the basic

requirements to maintain each kind of action were similar.)

(i) Private Rights

We have explained before that private rights are “those belong-

ing to an individual as an individual.” SCV, 315 Ga. at 47 (2) (a)

(citing 3 Blackstone, Commentaries *2). See also 1 Blackstone, Com-

mentaries *119 (also describing private rights as “absolute” rights

that “appertain[ed] and belong[ed] to particular men[ ] merely as

individuals”). According to Blackstone, at common law such private

rights included three categories of “absolute” rights: a person’s

rights to “personal security,” “personal liberty,” and “private

15 property.” Kennestone Hosp., Inc. v. Emory Univ., 318 Ga. 169, 178

(2) (a) (897 SE2d 772) (2024) (quoting 1 Blackstone, Commentaries

*129).5 Other rights held by individuals, like contractual rights and

the right to vote, were classified as private rights, too. See id.; Cole-

man v. Miller, 307 U.S. 433, 469 (59 SCt 972, 83 LE 1385) (1939)

(Frankfurter, J., concurring) (describing Lord Holt’s opinion in the

“famous” common law decision of Ashby v. White, 92 Eng. Rep. 126,

2 Ld. Raym. 938 (K.B. 1703), as being “permeated with the concep-

tion that a voter’s franchise is a personal right”); Ogden v. Saunders,

25 U.S. (12 Wheat.) 213, 344-345 (6 LE 606) (1827) (Marshall, C. J.,

concurring) (likening contract rights to rights of property that were

“natural rights” that were “brought with man into society”); 3 Black-

stone, Commentaries *116 (describing breach of contract as a cause

of action based on a private wrong); id. at *153-166 (discussing rules

5 Blackstone described personal security as a “person’s legal and unin-

terrupted enjoyment of his life, his limbs, his body, his health, and his reputa- tion.” 1 Blackstone, Commentaries *125. Personal liberty was “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct[,] without imprisonment or restraint, unless by due course of law.” Id. at *130. And property rights were a person’s “free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” Id. at *134. 16 of contract law in Blackstone’s volume dedicated to private wrongs).

At common law, it was well understood that a core function of

the courts was to resolve disputes about private rights. See SCV, 315

Ga. at 47-48 (2) (a) (“Resolving private-rights disputes has been his-

torically recognized as ‘the core’ of judicial power.”); Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 170 (2 LE 60) (1803) (“The province

of the court is, solely, to decide on the rights of individuals.”); 3

Blackstone, Commentaries *2 (“The more effectually to accomplish

the redress of private injuries, courts of justice are instituted in

every civilized society.”). As Blackstone put it, if wrongs were “con-

sidered as merely a [de]privation of right, the one natural remedy

for every species of wrong is the being put in possession of that right,

whereof the party injured is deprived.” Id. at *116. And a person

could obtain this remedy — whether through specific performance

or the payment of damages — by bringing to court “a diversity of

suits and actions,” which were simply “the lawful demand of one’s

right.” Id. See also 1 Blackstone, Commentaries *137 (stating that a

“right of every Englishman is that of applying to the courts of justice

17 for redress of injuries”); 2 Edward Coke, The First Part of the Insti-

tutes of the Laws of England *285 (1st Am. Ed., 16th Euro. Ed. 1812)

(1628) (“Action n’est auter chose que loyall demande de son droit.”

[An action is nothing more than an honest demand for one’s right.]).

Given that actions in court were understood as the way to set-

tle disputed private rights, the minimum requirement to maintain

such an action is not surprising: a plaintiff needed to assert that her

rights had been invaded. Two kinds of evidence from the common

law make this clear.

First, common law courts would allow plaintiffs to maintain an

action whenever they asserted the violation of their private rights,

even when they did not seek or try to prove actual harm or damage.

In such cases, if the plaintiff could establish the violation of her

rights, that was enough to prevail: courts would vindicate the plain-

tiff’s rights by awarding at least nominal damages, a trivial sum

that reflected that the plaintiff had proved the violation of her

rights. And this was true for all kinds of actions at common law —

torts, trespass, violation of riparian rights, infringement of voting

18 rights, and more. See, e.g., 3 Blackstone, Commentaries *123 (“For

wherever the common law gives a right or prohibits an injury, it also

gives a remedy by action.”); Robinson v. Byron, 30 Eng. Rep. 3, 3, 2

Cox 4, 5 (Ch. 1788) (awarding nominal damages for violation of ri-

parian rights); Entick v. Carrington, 95 Eng. Rep. 807, 817, 2 Wils.

275, 291 (K.B. 1765) (allowing plaintiff to maintain action for tres-

pass even if the alleged trespasser “does no damage at all”); Chap-

man v. Pickersgill, 95 Eng. Rep. 734, 2 Wils. 145 (K.B. 1762)

(“[W]herever there is an injury done to a man’s property by a false

and malicious prosecution, it is most reasonable he should have an

action to repair himself.”); Ashby, 92 Eng. Rep. at 129, 137 (Lord

Holt arguing in dissent in a voting rights case that “every injury im-

ports a damage” and that a plaintiff could always obtain damages

even if he “does not lose a penny by reason of the [violation]”; the

House of Lords overturned the majority decision, thus validating

Lord Holt’s position, 91 Eng. Rep. 665, 3 Salk. 17 (H.L. 1703)). As

Justice Story described this common law rule in a case he decided

while riding circuit, “every violation imports damage; and if no other

19 be proved, the plaintiff is entitled to a verdict for nominal damages.”

Webb v. Portland Mfg. Co., 29 F. Cas. 506, 509 (C.C.D. Me. 1838).

See also id. at 507 (“[F]rom my earliest reading, I have considered it

laid up among the very elements of the common law, that, wherever

there is a wrong, there is a remedy to redress it; and that every in-

jury imports damage in the nature of it; and, if no other damage is

established, the party injured is entitled to a verdict for nominal

damages.”); Whipple v. Cumberland Mfg. Co., 29 F. Cas. 934, 936

(C.C.D. Me. 1843) (also Justice Story, calling this common law rule

“well-known and well-settled”); 1 Theodore Sedgwick, A Treatise on

the Measure of Damages 53 (1847) (“Wherever the invasion of a

right is established, the English law infers some damage to the

plaintiff.”). Put simply, asserting the violation of the plaintiff’s pri-

vate rights was sufficient to maintain an action to vindicate those

rights at common law.

Second, although plaintiffs could maintain an action by assert-

ing a violation of their rights without asserting actual damage, the

opposite — asserting damage without asserting a violation of their

20 rights — would not suffice. This was the meaning of the common law

principle that no action would lie for damnum absque injuria, or

“damage without injury.” At common law, the term “damage” re-

ferred to the real-world harm suffered by a party, while “injury” typ-

ically referred to a legal injury: the violation of a legal right. See,

e.g., Cable v. Rogers, 81 Eng. Rep. 259, 3 Bulst. 311, 312 (K.B. 1625)

(“[I]njuria & damnum [injury and damage] are the two grounds for

the having [of] all actions, and without these, no action lieth.”);6 Bur-

ton v. Thompson, 97 Eng. Rep. 500, 2 Burr. 664 (K.B. 1758) (saying

that “I do not think we ought to interfere, merely to give the plaintiff

[a new trial] where there has been no real damage, and where the

injury is so trivial as not to deserve above a half crown compensa-

tion,” thus recognizing that there was still a legal injury since the

evidence in the case showed that a right was violated); 3 Blackstone,

6 As the language of Cable v. Rogers shows, at least some early common

law courts required a showing of both legal injury and damage. But it is widely understood that the injury-plus-damage rule fell out of favor after Ashby, 91 Eng. Rep. 665, and it was well established by the time Georgia adopted the common law of England, that suits could be brought for nominal damages when a right was violated but no real-world damage could be proved. 21 Commentaries *2 (explaining that “private wrongs” are “an infringe-

ment or privation of the private or civil rights belonging to individ-

uals, considered as individuals; and are thereupon frequently

termed civil injuries” (emphasis added)); Ashby, 92 Eng. Rep. at 137

(“[A]n injury imports a damage, when a man is thereby hindered of

his right.”). So this phrase stood for the principle that “even an ac-

tual, real-world harm, if unaccompanied by a violation of a recog-

nized legal right, ‘does not lay a foundation for an action.’” Sierra v.

City of Hallandale Beach, Fla., 996 F3d 1110, 1124 (I) (C) (2) (11th

Cir. 2021) (Newsom, J., concurring) (quoting Ala. Power Co. v. Ickes,

302 U.S. 464, 479 (58 SCt 300, 82 LE 374) (1938)). As the United

States Supreme Court explained,

injury, legally speaking, consists of a wrong done to a per- son, or, in other words, a violation of his right. It is an ancient maxim, that a damage to one, without an injury in this sense (damnum absque injuria), does not lay the foundation of an action; because, if the act complained of does not violate any of his legal rights, it is obvious, that he has no cause to complain.

Ala. Power Co., 302 U.S. at 479 (quoting Parker v. Griswold, 17

Conn. 288, 302-303 (1845)). Describing that same common law

22 principle a century earlier, Justice Story put it the same way: “no

action lies in a case where there is damnum absque injuria, that is,

where there is a damage done without any wrong or violation of any

right of the plaintiff.” Webb, 29 F. Cas. at 507 (Story, J.). See also

Beall v. Cockburn, 8 Va. 162, 171 (1790) (“The appellee has sus-

tained no loss, except what resulted from the state of the times. He

sold his sterling money for a depreciating currency, and he has suf-

fered by it; but it was damnum absque injuria; it was the common

lot of all who sold property at that period.”); Palmer v. Mulligan, 3

Cai. R. 307, 313 (N.Y. 1805) (“The act itself in erecting the dam, on

the principles contended for by the plaintiffs’ counsel, was a lawful

act; and though in its consequences slightly injurious, the plaintiffs

are remediless. . . . [I]t is a damnum absque injuria.”); Runnels v.

Bullen, 2 N.H. 532, 534 (1823) (“We have said the rights of others;

because the property of others may be lessened in value, or impaired

incidentally; and yet, if no rights are invaded, it is damnum absque

injuria.”); Shufford v. Cline, 35 N.C. 463 (1852) (“[A]lthough he may

have sustained loss by the course of conduct, which the defendant

23 saw proper to pursue, still it was ‘damnum absque injuria,’ for there

can be no injury unless the party has a right.”); Tenn. Elec. Power

Co. v. Tenn. Valley Auth., 306 U.S. 118, 140 (59 SCt 366, 83 LE 543)

(1939) (damage resulting from economic competition, “otherwise

lawful, is in such circumstances damnum absque injuria, and will

not support a cause of action or a right to sue”). In other words, if a

plaintiff desired to have her private rights adjudicated by a court at

common law, she had to assert that her rights had been invaded in

some way; asserting only that she had suffered some real-world

harm or damage was not a sufficient basis for maintaining an action.

(ii) Public Rights

In contrast to private rights, public rights have been described

as those rights that are shared by “the whole community, considered

as a community, in its social aggregate capacity.” 4 Blackstone,

Commentaries *5. As we have explained before, “[c]lassic examples”

of public rights include “the public’s shared rights to navigate public

waters and use public highways,” “[t]he right to enforce compliance

with penal law,” and “proprietary rights held by government on

24 behalf of the people, like title to public lands and ownership of funds

in the public treasury.” Kennestone Hosp., 318 Ga. at 177 (2) (a). See

also Ann Woolhandler & Caleb Nelson, Does History Defeat Stand-

ing Doctrine?, 102 Mich. L. Rev. 689, 693 (I) (A) (2004) (addressing

the traditional distinction between public and private rights).

At common law, many actions to vindicate public rights could

not be brought by private parties at all. In fact, Blackstone largely

equated “breach[es] and violation[s] of public rights and duties”

(which he called “public wrongs”) with “crimes and misdemeanors,”

and he explained that “the king, who ‘is supposed by the law to be

the person injured by every infraction of the public right belonging

to that community,’ is the ‘proper prosecutor’” to vindicate those

public rights. SCV, 315 Ga. at 48 (2) (a) (quoting 3 Blackstone, Com-

mentaries *2; 4 Blackstone, Commentaries *2). The “king in his pub-

lic capacity of supreme governor” was also generally the only party

who could “have an action” for public nuisance. 3 Blackstone, Com-

mentaries *219-220.

That said, the law sometimes granted private parties a right to

25 bring their own action to vindicate public rights. When it did,

maintenance of such an action still required the plaintiff to assert a

violation of her own rights. For example, people who were subject to

the king’s rule had standing to bring the ancient prerogative writs

to assert the public interest when authorities subordinate to the

king violated public duties. See SCV, 315 Ga. at 48-49 (2) (a) (citing

Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits,

“Injuries,” and Article III, 91 Mich. L. Rev. 163, 171 (I) (A) (1)

(1992)). And for someone other than the king to maintain an action

for public nuisance, she would have to allege not only a violation of

a public right that she shared as a member of the relevant public —

i.e., the public nuisance — but also that she “suffer[ed] some extraor-

dinary damage, beyond the rest of the king’s subjects, by [that] pub-

lic nuisance.” 3 Blackstone, Commentaries *220. See also Spokeo,

Inc. v. Robins, 578 U.S. 330, 345 (I) (A) (136 SCt 1540, 194 LE2d

635) (2016), as revised (May 24, 2016) (Thomas, J., concurring) (ex-

plaining that an action for public nuisance was “historically consid-

ered an action to vindicate the violation of a public right” (citing 3

26 Blackstone, Commentaries *219)). There is no indication from early

authorities on the common law or otherwise that a person could

bring an action to vindicate a public right without at least being a

member of the public who shared in that right — that is, without

asserting that her own shared public rights were in dispute. See

SCV, 315 Ga. at 49 (2) (a) (“[N]othing cited in those authorities sug-

gests that any person not subject to the king’s rule could invoke the

king’s power to control the subordinate functionaries and authori-

ties of the king.”).

*

So, to recap: At the time Georgia adopted the English common

law as its own, a plaintiff at common law could maintain an action

in civil court to vindicate her private rights and, as a member of the

public, certain public rights. To maintain an action to vindicate a

private right, a plaintiff had to assert her own private right. To bring

suit in a public rights case, the plaintiff had to assert at a minimum

that she held the public right as a member of the public.

27 (b) Decisional Law

These common law rules were the main legal backdrop against

which our Constitution granted the “judicial power” to Georgia

courts in 1798. See SCV, 315 Ga. at 46 (2) (a). And since that time,

as this Court has had occasion to consider the scope of that power,

we have recognized rules for maintaining an action that are con-

sistent with these common law rules: in particular, that a plaintiff

must assert that a legal right of hers is at stake to maintain an ac-

tion, and that alleging mere factual harm or damage is not suffi-

cient.

In fact, we recognized both of these rules in one of this Court’s

earliest decisions. In Hendrick v. Cook, 4 Ga. 241, 263-264 (4) (1848),

a riparian-rights case, we rejected the argument that a property

owner could not maintain an action against mill owners for causing

a stream to overflow onto the property owner’s land because he had

not proved “perceptible damage.” In doing so, we explained that “ac-

cording to our understanding of the principles of the Common Law,

whenever there has been an illegal invasion of the rights of another,

28 it is an injury, for which he is entitled to a remedy by an action.” Id.

at 261 (4) (emphasis in original). In other words, the proper inquiry

for whether the plaintiff could maintain the action was simply

“whether there has been the violation of a right.” Id. at 264 (4) (em-

phasis in original) (quoting Webb, 29 F. Cas. at 508). “[I]f so, the

party injured is entitled to maintain his action for nominal damages,

in vindication of his right, if no other damages are fit and proper, to

remunerate him.” Id. (emphasis in original) (quoting Webb, 29 F.

Cas. At 508). In setting out that test, we acknowledged that “[t]here

does exist a class of cases to which the maxim, damnum absque in-

juria, may properly be applied, but they are not such as where there

has been a direct invasion of personal rights, or the rights of prop-

erty.” Id. at 261 (4) (emphasis omitted). In other words, we adopted

the common law’s rule that, to maintain an action, a plaintiff had to

assert the violation of her rights — a legal injury — and not just

factual harm or damages.

Over the years leading up to the ratification of our current Con-

stitution in 1983, our decisions continued to recognize and apply

29 these related rules. As we put it in SCV, “what has been deemed

essential to invoking the judicial power of Georgia courts is not the

nature or extent of a plaintiff’s damages, but the violation of a right,

as adjudicating these rights is what holds a defendant accountable.”

SCV, 315 Ga. at 52 (2) (b). And in our earlier cases adjudicating ei-

ther private rights or public rights, plaintiffs have been required, at

a minimum, to assert a violation of their own legal rights to maintain

their actions. See, e.g., Braswell v. Equitable Mortg. Co., 110 Ga. 30,

33 (35 SE 322) (1900) (“As a general rule, no one can be a party to

an action if he has no interest in the cause of action.”); City of Rome

v. Shropshire, 112 Ga. 93, 94 (37 SE 168) (1900) (plaintiff had “no

right of action” based on the “well-settled principle of law that one

who sues for the wrongful damage of property must show title or

some interest in himself”); Mayor and Council of Macon v. Small,

108 Ga. 309 (34 SE 152) (1899) (“[I]f the plaintiff has no right of

action, of course he can have no recovery for any damages he may

have suffered; it would be what, under the law, is termed ‘damage

without injury.’”); Plumb v. Christie, 103 Ga. 686, 692 (30 SE 759)

30 (1898) (“It is a well-settled rule of law that equity will not grant re-

lief to any one who seeks to enjoin that which in nowise affects his

rights of person or property. One seeking such relief must show a

threatened wrong to himself, an invasion of some legal right, and

some interest in preventing a wrong sought to be perpetrated.”);

Nat’l Exch. Bank of Augusta v. Sibley, 71 Ga. 726, 733-734 (5) (1883)

(recognizing “damage without injury” as “perfectly well settled,” but

applying the common law rule that a plaintiff who could show a vi-

olation of his rights was “entitled to maintain his action for nominal

damages in vindication of his right”).7

At common law, the rule that a plaintiff had to assert her own

7 In certain kinds of actions, our earlier decisions required a plaintiff to

establish factual harm or damage to maintain the action, but that requirement was in addition to, not a substitute for, asserting an invasion of the plaintiff’s legal rights. For instance, just like at common law, “special damage” has long been required to maintain an action for public nuisance. See Ison v. Manley, 76 Ga. 804 (1886) (requiring special damage to give a private individual a cause of action for public nuisance); S. C. R.R. v. Moore & Philport, 28 Ga. 398, 418 (1859) (stating that “a private action will not lie for a public nuisance” as a general rule, but recognizing an exception when “the party suffered a particu- lar damage”). A similar rule applied to early fraud cases. See, e.g., Bigby v. Powell, 25 Ga. 244, 247 (1858) (“[T]o be entitled to the relief sought, the party must show, not only that he was misled and deceived, but that he was endam- aged thereby. If no damage resulted from the fraud, he is entitled to no relief.”). 31 legal rights to maintain an action was not described as a “standing”

requirement, see Sierra, 996 F3d at 1131 (I) (C) (3) (b) (Newsom, J.,

concurring) (describing this rule at common law as “the question of

whether he has a cause of action—whether his legal rights have

been infringed and whether the positive law authorizes him to sue

for that infringement”), but the earliest decisions of this Court gen-

erally treated this rule as a threshold jurisdictional rule. E.g., Cobb

v. Megrath & Patterson, 36 Ga. 625 (1867); Henry v. Elder, 63 Ga.

347, 349 (1879); Braswell, 110 Ga. at 33; Shropshire, 112 Ga. at 94.

And even if our earliest decisions were not always crystal clear about

the jurisdictional nature of the rule, we have since recognized, for a

long time now, that this requirement reflects a limitation on the ju-

dicial power of Georgia courts. The core of the judicial power con-

ferred by the Georgia Constitution has long been described as the

power to resolve a controversy about the relative rights and obliga-

tions of the parties before it, and to bind those parties to that judg-

ment. See Se. Greyhound Lines v. Ga. Pub.-Svc. Comm’n, 181 Ga.

75, 78 (181 SE 834) (1935) (“To adjudicate upon and protect the

32 rights and interests of individual citizens, and to that end to con-

strue and apply the laws, is the peculiar province of the judicial de-

partment.” (citation and punctuation omitted)); Gas-Light Co. of Au-

gusta v. West, 78 Ga. 318, 319 (1886) (“A judicial power extends to

deciding, determining controversies which arise between persons

and individuals according to law.”); Low v. Towns, 8 Ga. 360, 368

(1850) (the judiciary is the “legitimate and appropriate” branch to

adjudicate the “vested rights of individuals, when acquired under

the Constitution and laws of the land”). See also SCV, 315 Ga. at 50

(2) (b); Titshaw v. Geer, 320 Ga. 128, 141-142 (1) (907 SE2d 835)

(2024) (Pinson, J., concurring). This understanding of the judicial

power is reflected in our decisions that limit its exercise to “genuine”

or “actual” “controversies.” SCV, 315 Ga. at 50 (2) (b) (citing Phila-

delphia Underwriters v. Folds, 156 Ga. 773, 776 (120 SE 102) (1923);

Gas-Light Co. of Augusta, 78 Ga. at 319; Gilbert v. Thomas, 3 Ga.

575, 579-580 (1847)). See also Shippen v. Folsom, 200 Ga. 58, 59 (4)

(35 SE2d 915) (1945) (noting that even if the Declaratory Judgment

Act did not expressly limit relief to “cases of actual controversy,” that

33 “limitation is generally implied and observed by the courts both in

America and in England” (citation and punctuation omitted)). And,

critical here, our decisions have established that “[f]or an actual con-

troversy to exist, a party must have some right at stake that requires

adjudication to protect it.” SCV, 315 Ga. at 50 (2) (b) (citing Pilgrim

v. First Nat’l Bank of Rome, 235 Ga. 172, 174 (219 SE2d 135) (1975)

(in describing the “actual controversy” requirement in an action for

declaratory judgment, stating “as a general rule” that “the parties

seeking to maintain the action must have the capacity to sue, and

must have a right which is justiciable and subject to a declaration of

rights, and it must be brought against an adverse party with an an-

tagonistic interest”)); Braswell, 110 Ga. at 33; Brown v. City of At-

lanta, 66 Ga. 71, 76 (1) (1880); Se. Greyhound Lines, 181 Ga. at 78-

79; Low, 8 Ga. at 368. See also, e.g., Reid v. Town of Eatonton, 80

Ga. 755 (6 SE 602) (1888) (declining to reach merits of constitutional

challenge because the plaintiff failed to assert any injury to his

rights); Plumb, 103 Ga. 686 (same); Parker v. Mayor of Savannah,

216 Ga. 210 (115 SE2d 555) (1960) (same); Crumley v. Head, 225 Ga.

34 246 (167 SE2d 651) (1969) (same); Sims v. State, 243 Ga. 83 (252

SE2d 501) (1979) (same). In short, as we held in SCV, the rule that

a plaintiff must assert a violation of her legal rights — a legal injury

— to maintain an action “is a standing requirement arising from the

Georgia Constitution’s Judicial Power Paragraph.” SCV, 315 Ga. at

62 (2) (c) (iii). See also Floam, 319 Ga. at 94 (1).8

2. Third-Party Standing

Having confirmed that a plaintiff cannot invoke the judicial

power of Georgia courts without asserting a violation of her own le-

gal rights as a general matter, we turn to so-called “third-party

standing.” As we explained above, the federal doctrine of third-party

standing allows a plaintiff to maintain an action by asserting that

rights of another person who is not a party to the litigation have

been violated, as long as he can establish an “injury in fact,” a “close

8 In SCV, we described this requirement at times as a requirement that

the plaintiff assert a “cognizable injury,” SCV, 315 Ga. at 62 (2) (c) (iii), or a “legal injury,” id. at 53-54 (2) (c). Those terms are shorthand for the basic standing rule that we identified there and here — that a plaintiff must assert a violation of her legal rights — and distinct from the Article III standing re- quirement that a plaintiff must assert an “injury in fact” to sue in federal court. 35 relation to the third party,” and some “hindrance to the third party’s

ability to protect his or her own interests.” Powers, 499 U.S. at 410-

411 (III). Put another way, although the only legal rights in dispute

belong to a third party, the plaintiff may bring an action in her own

name in federal court to adjudicate those rights if the test for third-

party standing is satisfied.

This theory of third-party standing can satisfy federal standing

rules in federal court because of the way federal standing doctrine

has evolved. For many years, federal standing doctrine looked a lot

like Georgia’s constitutional standing requirements described

above: “it was well-understood, and had been for decades, that a

plaintiff could sue only for the violation of a legal right—‘one of prop-

erty, one arising out of contract, one protected against tortious inva-

sion, or one founded on a statute which confers a privilege.’” Sierra,

996 F3d at 1117 (I) (B) (Newsom, J., concurring) (quoting Tenn. Elec.

Power Co., 306 U.S. at 137-138). See also Henry P. Monaghan, Third

Party Standing, 84 Colum. L. Rev. 277, 286 (II) (A) (1984) (“The rule

that a litigant has standing to raise only his ‘own’ rights has a long

36 history. The early case law contains no suggestion that this limita-

tion was understood to be simply a matter of judicial discretion.”).

But sometime in the middle of the last century, the United States

Supreme Court moved away from that rule, and today, Article III of

the United States Constitution (at least as construed by federal

courts) does not require a plaintiff to assert a violation of her legal

rights to have standing. See id. at 287-289 (II) (A) (tracing the evo-

lution of third-party standing in federal law). See also Sierra, 996

F3d at 1117-1118 (I) (B). See generally Sunstein, 91 Mich. L. Rev. at

168-186 (I) (A)-(D). Instead, Article III standing is grounded in a dif-

ferent requirement: an “injury in fact” that is caused by the defend-

ant and redressable by a judicial decision. This injury-in-fact re-

quirement may be satisfied by asserting a violation of one’s legal

rights, at least sometimes. See Spokeo, 578 U.S. at 340-341 (II) (B)

(1)-(2) (explaining that “intangible harms” can meet the injury-in-

fact requirement of Article III, but a plaintiff “could not, for example,

allege a bare procedural violation, divorced from any concrete harm,

and satisfy the injury-in-fact requirement of Article III”). But it can

37 also be satisfied by establishing merely real-world harm or damages,

like physical or “pocketbook” injury, or property damage. Food &

Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 381 (II) (A)

(144 SCt 1540, 219 LE2d 121) (2024) (“An injury in fact can be

a physical injury, a monetary injury, an injury to one’s property, or

an injury to one’s constitutional rights, to take just a few common

examples.”). That understanding of Article III opened the door to

third-party standing. After all, if Article III does not require a plain-

tiff to assert a violation of legal rights at all, then it does not prevent

a plaintiff from bringing a lawsuit asserting someone else’s legal

rights, as long as the plaintiff asserts that the defendant’s violation

of someone else’s legal rights caused the plaintiff an “injury in fact.”

Understood in this way, federal third-party-standing doctrine im-

poses requirements beyond the constitutional minimum injury-in-

fact and is therefore a prudential, judge-made limitation on a federal

constitutional standing rule that would otherwise allow expansive

third-party standing in federal court. See, e.g., Craig, 429 U.S. at

193 (I) (describing third-party standing limits as a “salutary ‘rule of

38 self-restraint,’” not a “constitutional” requirement). Rather than al-

lowing a plaintiff to assert a third party’s rights any time a plaintiff

can establish an injury in fact, the doctrine says that a party gener-

ally must assert her own rights in litigation and allows third-party

standing only in those cases in which a plaintiff can meet the doc-

trine’s additional requirements. See id. at 193-194 (I).

This standing landscape in federal courts is different from

Georgia’s at a fundamental level. The requirement that a plaintiff

must assert a violation of her rights to maintain an action in Georgia

courts is not a prudential rule subject to judge-made exceptions; it

is the bedrock requirement for invoking the judicial power granted

by the Georgia Constitution. So, at least on its face, Georgia’s law of

constitutional standing is not compatible with federal-style third-

party standing, which would allow a plaintiff to maintain an action

in Georgia courts without meeting the irreducible minimum require-

ment for doing so: asserting the plaintiff’s own legal rights.

And as it turns out, that conclusion is confirmed by this Court’s

decisions spanning many decades leading up to the ratification of

39 our current Constitution.

In several decisions around the turn of the twentieth century,

we rejected attempts by plaintiffs to vindicate legal rights or inter-

ests held by nonparties because they had asserted no legal right of

their own that would have been sufficient to maintain the action. In

Reid v. Town of Eatonton, for example, this Court refused to decide

the merits of a white plaintiff’s claim that a town’s bond sale uncon-

stitutionally discriminated against black residents, because he did

not allege that any of his own rights were affected by the bond sale.

See 80 Ga. at 757 (1) (“A court will not listen to an objection made to

the constitutionality of an act by a party whose rights it does not

affect, and who has, therefore, no interest in defeating it.” (quoting

Thomas M. Cooley, A Treatise on the Constitutional Limitations

Which Rest Upon the Legislative Power of the States of the Ameri-

can Union 197 (5th ed. 1883)) (punctuation omitted)). We applied

Reid’s rule a few years later in Braswell v. Equitable Mortg. Co.,

where we dismissed an estate administrator’s challenge on appeal

to the validity of a deed held by a mortgage company after the estate

40 had sold the property in dispute. See Braswell, 110 Ga. at 30-33.

Although the validity of the deed’s conveyance “might probably be a

material question affecting the rights of the purchasers,” we were

“wholly unable to ascertain” any interest of the administrator or the

estate he represented, so we dismissed the writ of error “[w]ithout .

. . passing on the question made in the record.” Id. And in three dif-

ferent property-rights cases decided around the same time, we held

that the plaintiffs in each could not maintain their actions after it

turned out that nonparties held the property rights in dispute. See

Shropshire, 112 Ga. at 93-95 (title to property actually belonged to

plaintiff’s wife); Mitchell v. Ga. & Ala. Ry. Co., 111 Ga. 760, 761, 771

(2) (36 SE 971) (1900) (same); Lockhart v. W. & AH. R.R., 73 Ga. 472,

473-474 (1884) (plaintiff’s brother was true owner of a painting and

so was the person who could maintain an action to seek a remedy for

the violation of his property rights). In each decision, we applied the

same rule: the action had to be brought in the name of the party that

held the right or interest in the property that was damaged or in

dispute, and if the plaintiff had no such rights, he could not maintain

41 the action. See also Palmour v. Durham Fertilizer Co., 97 Ga. 244,

244 (22 SE 931) (1895) (“If the plaintiff in such action fails to show

title in himself, he cannot recover either the property sued for or its

value in money.”); Jones v. Watson, 63 Ga. 679 (1879); Wallis v.

Osteen, 38 Ga. 250 (1868); Brooking v. Dearmond, 27 Ga. 58, 62-63

(1859).

After this Court’s string of consistent decisions establishing

this rule against bringing actions to vindicate the rights of nonpar-

ties, the Court of Appeals was created, and it correctly applied this

“well settled” rule for decades, mostly in the context of property-

based actions. See, e.g., S. Ry. Co. v. Strozier & Waters, 10 Ga. App.

157, 158 (73 SE 42) (1911) (citing Mitchell, 111 Ga. at 760); Dobbs v.

Bell Laundry, 25 Ga. App. 734, 734-735 (105 SE 53) (1920) (plaintiff

who was an agent of property’s true owner could not maintain an

action); Paschal v. Godley, 34 Ga. App. 321, 322 (129 SE 565) (1925)

(same); Andrew v. George Muse Clothing Co., 44 Ga. App. 291, 292

(161 SE 296) (1931) (same); Eibel v. Mechs. Loan & Sav. Co., 52 Ga.

App. 349, 351 (183 SE 133) (1935) (legal title had passed to vendee,

42 vendor could not sue based on equitable title alone); Tidwell v. Bush,

59 Ga. App. 471, 471 (1 SE2d 457) (1939); Smith v. State Farm Mut.

Auto. Ins. Co., 89 Ga. App. 292, 292 (79 SE2d 7) (1953); Dayton Rub-

ber Co. v. Dismuke, 102 Ga. App. 85, 88-89 (115 SE2d 767) (1960).9

As the century marched on, this Court continued to apply the

9 It is also worth noting in this regard that the basic rule that a plaintiff

must assert her own rights to maintain an action has been codified in certain contexts. See, e.g., OCGA § 9-2-21 (a) (“An action for a tort shall, in general, be brought in the name of the person whose legal right has been affected. In the case of an injury to property, a tort action shall be brought in the name of the person who was legally interested in the property at the time the injury thereto was committed or in the name of his assignee.”); OCGA § 9-2-20 (a) (“As a gen- eral rule, an action on a contract, whether the contract is expressed, implied, by parol, under seal, or of record, shall be brought in the name of the party in whom the legal interest in the contract is vested.”). Arguments that a plaintiff has not asserted her own rights in an action have been litigated regularly un- der those statutory provisions. See, e.g., Patellis v. Tanner, 199 Ga. 304, 314 (3) (34 SE2d 84) (1945) (relying on predecessor to OCGA § 9-2-21); Tyler v. Nat’l Life & Accident Ins. Co., 48 Ga. App. 338, 340 (172 SE 747) (1934) (relying on predecessor to OCGA § 9-2-20). The Civil Practice Act’s requirement that “[e]very action shall be prose- cuted in the name of the real party in interest,” OCGA § 9-11-17 (a), which was enacted in 1966, see Ga. L. 1966, pp. 609, 629, § 17, can also overlap with the basic standing rule. See, e.g., Equitable Life Assurance Soc’y of U. S. v. Tinsley Mill Vill., 249 Ga. 769, 771-772 (2) (294 SE2d 495) (1982) (condominium asso- ciation was not the real party in interest where “the rights sought to be en- forced are the right to recover for damages to property and the right to have that property protected against the continuance of a nuisance,” and “[t]hose rights belong to the owners of the property damaged — the condominium own- ers,” not the association that allegedly “represent[ed]” them).

43 basic rule underlying our consistent rejection of attempts to assert

the rights of third parties — that a plaintiff must assert her own

rights to maintain an action — in other contexts. Many of those de-

cisions involved constitutional challenges to statutes, and in those

decisions, we consistently applied Reid’s rule that a plaintiff could

not challenge a statute on constitutional grounds unless he could

“show that its enforcement is an infringement upon his right of per-

son or property, and that such infringement results from the uncon-

stitutional feature of the statute upon which he bases his attack.” S.

Ga. Nat. Gas Co. v. Ga. Pub. Serv. Comm’n, 214 Ga. 174, 175 (1) (104

SE2d 97) (1958) (citing Reid, 80 Ga. 755). See also, e.g., Plumb, 103

Ga. at 692; Parker, 216 Ga. at 215 (6); Ne. Factor & Disc. Co., Inc. v.

Jackson, 223 Ga. 709, 710 (1) (157 SE2d 731) (1967); Crumley, 225

Ga. at 247 (3); Bryant v. Prior Tire Co., 230 Ga. 137, 138 (196 SE2d

14) (1973); Reinertsen v. Porter, 242 Ga. 624, 630 (2) (250 SE2d 475)

(1978); Iteld v. Silverboard, 247 Ga. 158, 158-159 (1) (275 SE2d 645)

(1981); Smith v. State, 248 Ga. 828, 830 (2) (286 SE2d 709) (1982).

These decisions were also clear that the minimum requirement for

44 standing to bring constitutional challenges was not a showing of the

federal-style injury-in-fact, but an assertion that the plaintiff’s own

rights were violated. See S. Ga. Nat. Gas Co., 214 Ga. at 175 (1) (“He

must show that the alleged unconstitutional feature of the statute

injures him, and so operates as to deprive him of rights protected by

the Constitution of this State or by the Constitution of the United

States, or by both.” (emphasis added)).10 This rule was applied on

appeal, too, just as it had been in Braswell: we continued to hold that

an appellant lacks standing to appeal without asserting that the

judgment below affected her own rights. See, e.g., Cooper Motor

10 As we have noted before, when this standing rule has been applied in

the context of constitutional challenges to statutes, we have required the plain- tiff to assert an individualized injury. See Floam, 319 Ga. at 92 (1); SCV, 315 Ga. at 54 (2) (c) n.13. This language in part reflects the basic rule that a plain- tiff must assert her own legal rights. See, e.g., S. Ga. Nat. Gas Co., 214 Ga. at 175 (1). And that rule, as we have discussed, is a constitutional rule that re- flects a limitation on the judicial power. Beyond this basic standing rule, these decisions appear to impose an additional requirement, rooted in separation of powers principles, that the plaintiff challenging the constitutionality of a stat- ute must also assert a private right. See Floam, 319 Ga. at 92 (1) (citing, e.g., Bd. of Educ. of Glynn County v. Mayor of Brunswick, 72 Ga. 353, 354-355 (1884); Scoville v. Calhoun, 76 Ga. 263, 269 (1886)). In other words, to chal- lenge the constitutionality of a state statute, it is generally not sufficient to assert only the generalized violation of a public right, which is by definition not individualized, at least absent a right of action granted by the legislature for vindicating the public right at issue. 45 Lines, Inc. v. B. C. Truck Lines, Inc., 215 Ga. 195, 195 (2) (109 SE2d

689) (1959) (appellant had no right to appeal because the judgment

below did not affect appellant’s rights); Bryan v. Rowland, 166 Ga.

719, 724 (144 SE 275) (1928) (appellant administrator for an estate

was “without legal right” to appeal because the parties in the court

below (all the heirs to the estate) had not appealed and the admin-

istrator had no rights of his own at stake). So, although our Court

did not have occasion to reject further attempts to assert the rights

of nonparties after our earlier string of decisions doing so, the

throughline of the basic requirement that animated those decisions

continued right up until our current Constitution was ratified.

In sum, neither the common law nor our body of decisional law

that followed leaves room for a theory of standing like the federal

doctrine of third-party standing to properly invoke the judicial

power of Georgia courts. To the contrary, our decisions reflect a con-

sistent understanding that a plaintiff must assert her own legal

rights to have a Georgia court resolve a dispute about the relative

rights of the parties to an action, and we have consistently rejected

46 plaintiffs’ attempts to have our courts adjudicate the rights of (and

much less bind) parties not before the court.11 All of this leads us to

conclude that our current Constitution’s grant of the judicial power

to Georgia courts does not include the power to adjudicate a plain-

tiff’s claim asserting only the rights of parties not before the Court.

Put simply, Georgia’s rules of constitutional standing are not

11 This Court has before characterized a couple of our decisions as allow-

ing some version of standing to assert the rights of others: Agan v. State of Ga., 272 Ga. 540 (533 SE2d 60) (2000) and Ambles v. State, 259 Ga. 406 (383 SE2d 555) (1989). See Burgess, 282 Ga. at 434 (1). That characterization was mis- taken. In Agan, the plaintiff, a convicted felon, challenged the constitutionality of a law that required revocation of certain businesses’ licenses if an employee or agent was a convicted felon. The plaintiff had standing because he asserted that enforcing the statute against him violated his own rights under the Ex Post Facto Clauses of the Georgia and United States Constitutions (and he also had constitutional-challenge standing, we held, because enforcing the law could “mak[e] it impossible for him to work or operate in the industry” or gain an ownership stake in a lending institution covered by the law). Agan, 272 Ga. at 542 (1). And Ambles was not a decision about constitutional standing to in- voke the judicial power. The State plainly had constitutional standing to in- voke the judicial power in that case, because the case was a criminal prosecu- tion. See SCV, 315 Ga. at 54 (2) (c) (“Because the public is harmed, the State, as the sovereign, is the proper party to prosecute crimes.”). The question in- stead was whether the State had constitutional-challenge standing to argue that certain statutes governing witness competency violated the Equal Protec- tion Clause of the United States Constitution. Ambles, 259 Ga. at 406 (1). Am- bles’s holding that the State had that separate kind of standing is subject to question, see Williams, 320 Ga. at 233 (Peterson, P. J., concurring), but it is not a holding that a plaintiff has constitutional standing to invoke the judicial power by asserting only the rights of others. So we disapprove our language in Burgess that characterized those decisions as third-party-standing decisions. 47 compatible with the federal doctrine of third-party standing.

B. Stare Decisis

Given this conclusion, we must consider stare decisis. As we

just determined, properly understood, the judicial power of our

courts may not be invoked by a plaintiff who seeks to maintain an

action by asserting only the rights of a nonparty, as the federal doc-

trine of third-party standing would allow. Indeed, the parties and

the Attorney General appearing as an amicus here agree on that

much. Even Wasserman has now acknowledged in briefing to this

Court that a plaintiff must show a “violation of his or her own rights”

to establish standing in Georgia courts. Nonetheless, this Court un-

critically imported the federal doctrine of third-party standing in

2007, see Burgess, 282 Ga. at 434-436 (1), well after our current Con-

stitution was ratified. So we must decide whether principles of stare

decisis compel us to retain the precedent that borrowed the federal

doctrine.

1. Principles of Stare Decisis

When we consider whether to follow one of our past decisions,

48 stare decisis is the “strong default rule.” Johnson v. State, 315 Ga.

876, 887 (3) (885 SE2d 725) (2023). Ours is a system of precedent,

built on the premise, if not a promise, that future cases will be de-

cided like similar past cases. See Ammons, 315 Ga. at 169 (1) (Pin-

son, J., concurring); Bryan A. Garner, The Law of Judicial Precedent

12 (1st ed. 2016). Sticking to our precedent promotes a system of

equal treatment under the law rather than one of “arbitrary discre-

tion.” Ammons, 315 Ga. at 169 (1) (Pinson, J., concurring) (quoting

The Federalist No. 78, at 529 (Alexander Hamilton) (Jacob E. Cooke

ed., 1961)). See also Olevik v. State, 302 Ga. 228, 244-245 (2) (c) (iv)

(806 SE2d 505) (2017). Such a system not only yields a body of law

that is more stable, predictable, and reliable: it is also the only kind

of system that is consistent with the rule of law.

“In rare cases, however, following a past decision would do

more harm to the rule of law than overruling it would.” Johnson, 315

Ga. at 887 (3). See also, e.g., Ellison v. Ga. R.R. & Banking Co., 87

Ga. 691, 696 (13 SE 809) (1891) (explaining that stare decisis pre-

serves “[m]inor errors, even if quite obvious, or important errors, if

49 their existence be fairly doubtful,” but “the only treatment for a

great and glaring error affecting the current administration of jus-

tice . . . is to correct it”). In identifying those “rare cases,” we have

resisted applying a strict formula or an “exclusive” list of “factors.”

Johnson, 315 Ga. at 887-888 (3). But when we have considered stare

decisis, we have paid attention to features of the precedent at issue

that bear on whether it would be more harmful to leave the question

at issue “decided” or have it “decided right.” Olevik, 302 Ga. at 245

(2) (c) (iv) (citation, punctuation and emphasis omitted).

Some of those features bear quite directly on rule-of-law con-

cerns. As a threshold matter, precedents that are not just wrong but

“unreasoned,” or which “disregard[ ] the basic legal principles that

courts use to do law,” are ripe for overruling. Floam, 319 Ga. at 94

(1) n.5 (quoting Ammons, 315 Ga. at 171-172 (1)). See also, e.g., State

v. Jackson, 287 Ga. 646, 653 (3) (697 SE2d 757) (2010); Gilliam v.

State, 312 Ga. 60, 63 (860 SE2d 543) (2021); State v. Hudson, 293

Ga. 656, 661-662 (748 SE2d 910) (2013); Nalls v. State, 304 Ga. 168,

179 (3) (b) (815 SE2d 38) (2018). Such precedents embody just the

50 sort of “arbitrary discretion” (whether actual or apparent) that can

be especially harmful to the rule of law, see The Federalist No. 78,

at 529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), so we are

more open to replacing them with (ideally) carefully reasoned rules

of decision that courts can apply evenhandedly to future cases. A

similar explanation best justifies reconsidering precedents that are

truly “unworkable”: precedents that leave courts without managea-

ble standards to cabin judicial discretion and invite courts to make

policy decisions instead of doing law. See, e.g., Garcia v. San Antonio

Metro. Transit Auth., 469 U.S. 528, 546 (II) (105 SCt 1005, 83 LE2d

1016) (1985) (overruling as “unsound in principle and unworkable in

practice” a rule of state immunity that “inevitably invite[d] an une-

lected federal judiciary to make decisions about which state policies

it favors and which ones it dislikes”); Cook v. State, 313 Ga. 471, 496

(3) (d) (870 SE2d 758) (2022) (describing as an “aspect of this work-

ability problem” that “the lines we have drawn” in the line of prece-

dent in question were “often based on considerations of policy rather

than law”). See also Michael Stokes Paulsen, Does the Supreme

51 Court’s Current Doctrine of Stare Decisis Require Adherence to the

Supreme Court’s Current Doctrine of Stare Decisis?, 86 N.C. L. Rev.

1165, 1173-1177 (I) (B) (1) (2008).12 In a similar vein, we have been

less inclined to preserve holdings that conflict with — or as we have

put it in various decisions, are a “departure from,” “dissonan[t]

with,” “inconsistent with,” “contrary to,” or an “aberration in” —

precedent in the same area, because keeping such decisions can un-

dermine rather than promote a system of equal treatment under the

law. Green v. State, 318 Ga. 610, 635 (II) (C) (898 SE2d 500) (2024);

Pounds v. State, 309 Ga. 376, 382 (3) (846 SE2d 48) (2020), overruled

on other grounds by Johnson, 315 Ga. at 889 (3) & n.11; Jackson,

287 Ga. at 658 (5); Grissom v. Gleason, 262 Ga. 374, 376 (2) (418

SE2d 27) (1992). Finally, we have been more willing to correct past

decisions that are clearly wrong about the jurisdiction of Georgia

12 Some of us have criticized “workability” as a factor in the analysis of

stare decisis because it proves quite malleable in practice. See Johnson, 315 Ga. at 888-889 (3); Ammons, 315 Ga. at 173 (2) n.21 (Pinson, J., concurring). But properly applied, this narrow understanding of workability as a question about whether the legal rule in question is susceptible of principled judicial administration or simply a vehicle for unbounded discretion is consistent with the principles that animate stare decisis. 52 courts, especially when they bend or break the limits that the people

of Georgia and our elected representatives have placed on our power

as courts to hear cases. See, e.g., Gilliam, 312 Ga. at 63; Pounds, 309

Ga. at 381-382 (3); Duke v. State, 306 Ga. 171, 182-183 (3) (c), 186-

187 (4) (829 SE2d 348) (2019); Cook, 313 Ga. at 479 (2) (a), 506 (5).

See also Buckner-Webb, 314 Ga. at 836-837 (2) (Pinson, J., concur-

ring) (“It is an especially troubling kind of error to arrogate to our-

selves as appellate courts the authority to bend the limits of our own

power to review cases.”).

In addition to those concerns driven by respect for the rule of

law, we have considered a limited set of more practical consequences

when applying stare decisis. First, we have long considered so-called

“reliance interests”: at the least, when parties have long relied on a

legal rule in making decisions affecting property or contract rights,

courts are especially hesitant to unsettle precedents that could dis-

rupt or destroy such thought-to-be-settled rights. Olevik, 302 Ga. at

245 (2) (c) (iv). See, e.g., Leary v. Durham, 4 Ga. 593, 600-601 (1848)

(in applying stare decisis to preserve a precedent, explaining that

53 “in questions of property certainty is of incalculable importance”).13

Second, although the age of a precedent by itself is a poor gauge of

whether it should be retained, a legal rule might be so “deeply en-

trenched” in the body of law that trying to dig it out would do more

harm than good. Frett v. State Farm Emp. Workers’ Comp., 309 Ga.

44, 60 (3) (c) (844 SE2d 749) (2020). See also Cook, 313 Ga. at 510-

511 (1) (Peterson, J., dissenting). Third, we have “typically applied

stare decisis with less force” to precedents that interpret a constitu-

tional provision than to precedents that interpret statutes, reason-

ing that it is harder as a practical matter for the people to correct

constitutional precedents. Floam, 319 Ga. at 94 (1) n.5.

These considerations are guideposts, not a mechanical formula

or a multi-factor test. At bottom, the question whether to overrule a

precedent comes down to whether getting the law right is worth the

cost to the rule of law of unsettling what had been settled. See

Olevik, 302 Ga. at 245 (2) (c) (iv). For the overwhelming majority of

13 This Court has focused principally on reliance interests in connection

with property or contract rights. See, e.g., Olevik, 302 Ga. at 245 (2) (c) (iv); Savage v. State of Ga., 297 Ga. 627, 641 (5) (b) (774 SE2d 624) (2015). 54 precedents, the juice is not worth the squeeze. But in rare cases —

when a precedent is not just wrong, but “obviously and harmfully”

so — stare decisis is not a bar to getting the law right. Johnson, 315

Ga. at 877.

2. Application of Stare Decisis

For a number of reasons, this Court’s precedent that adopted

the federal doctrine of third-party standing is one of those rare cases.

As a threshold matter, decisions that uncritically import into

Georgia law holdings of federal courts about federal law fall into the

category of unreasoned and arbitrary decisions that we have been

more willing to reconsider. See Ammons, 315 Ga. at 171-172 (1).

Such federal-law holdings might be consistent with Georgia law, or

they might not. But importing them without even checking first (at

the least, taking a stab at interpreting the relevant language of

Georgia law and showing our work) is little better than picking a

rule out of a hat. See Buckner-Webb, 314 Ga. at 834 (1). And that

arbitrary approach is a far cry from the kind of “actual legal reason-

ing” that, consistent with the rule of law, courts are expected to do.

55 Floam, 319 Ga. at 94 (1) n.5. So here. See Burgess, 282 Ga. at 434-

435 (1) (“adopt[ing]” federal doctrine of third-party standing whole-

sale without any analysis of Georgia law because “[i]t is well estab-

lished under federal law” and other states had allowed standing in

similar cases).

This Court’s uncritical adoption of federal third-party standing

is made worse by its especially poor fit with the body of Georgia law.

As explained above, that doctrine is not compatible with Georgia’s

well-settled constitutional standing rule that a plaintiff must assert

her own rights to maintain an action. That bedrock limit on the ju-

dicial power, which is rooted in the common law and cemented in an

unbroken line of precedent leading up to the ratification of our cur-

rent Constitution, would be ignored every time a court allowed a

plaintiff without any right at stake to assert the rights of a party not

before the court. Call that what you will — a “departure from,” “in-

consistent” or “dissonant with,” “contrary to,” or an “aberration in”

our law of constitutional standing — it is not a state of affairs that

ought to persist in a system that is supposed to treat like cases alike.

56 This third-party standing precedent is the kind of precedent we

are more willing to reconsider in other ways, too. It is an error that

wrongly expands our own power to hear cases, compare, e.g.,

Gilliam, 312 Ga. at 63 (overruling decision that took jurisdiction

over certain appeals for “judicial economy,” “ignor[ing] the constitu-

tional parameters of [the Court’s] jurisdiction without any signifi-

cant analysis”), and on constitutional grounds, compare, e.g., id. at

61, 63; Floam, 319 Ga. at 94 (1) n.5; Olevik, 302 Ga. at 245 (2) (c)

(iv). And although this doctrine is not “unworkable” to a degree that

would justify overruling for that reason alone, a multifactor test that

asks about “close[ness]” to the third party and whether that non-

party faces a sufficient “hindrance,” see Burgess, 282 Ga. at 435 (1),

is far more susceptible to arbitrary application than the clear and

time-tested rule that a party must assert her own rights to maintain

an action.

Finally, none of the practical consequences this Court has con-

sidered cut in favor of preserving this federal doctrine as part of

Georgia law. No party has identified (nor are we aware of) any

57 reliance interests in preserving the doctrine, much less any basis to

think discarding it would affect settled property or contract rights.

Compare Johnson, 315 Ga. at 888 (3) (“[S]tare decisis applies with

less force to a judge-made rule that governs only ‘internal Judicial

Branch operations’ and so does not affect parties’ out-of-court af-

fairs.” (citation omitted)). And the doctrine is far from “entrenched”:

this Court imported it 18 years ago, compare, e.g., Southall v. State,

300 Ga. 462, 463, 468 (1) (796 SE2d 261) (2017) (overruling 45-year-

old precedent); Hudson, 293 Ga. at 656, 662 (overruling 38-year-old

precedent), and since then, only a handful of reported appellate de-

cisions have applied the federal-third-party-standing test. Hardly a

legal cornerstone.

For all these reasons, stare decisis does not spare the federal

doctrine of third-party standing that we uncritically imported in

Burgess. So we overrule that decision’s adoption of the federal doc-

trine of third-party standing and the handful of later decisions to

the extent they hold that a plaintiff may rely on the federal doctrine

58 of third-party standing to maintain an action in Georgia courts.14

Now that the federal doctrine of third-party standing is no

longer a part of Georgia’s law of constitutional standing, a plaintiff

may not maintain an action in Georgia courts by asserting only the

rights of a third party and meeting the elements of the federal test.

Instead, at a minimum, a plaintiff must assert her own rights to

maintain an action in Georgia courts.15

14 Those decisions include Bishop v. Patton, 288 Ga. 600, 603 (2) (706

SE2d 634) (2011); Ferguson v. Perry, 292 Ga. 666, 674 (3) (740 SE2d 598) (2013); Payton v. City of College Park, 368 Ga. App. 396, 398-399 (2) (890 SE2d 278) (2023); and Doe v. Broady, 369 Ga. App. 493, 497 n.5 (893 SE2d 857) (2023). This case does not present, but would seem to control, the closely related question whether the federal doctrine of associational standing is properly a part of Georgia law. Like federal third-party standing, that doctrine was un- critically imported into Georgia law after the ratification of our current Con- stitution. See Aldridge v. Ga. Hosp. & Travel Ass’n, 251 Ga. 234, 235-236 (1) (304 SE2d 708) (1983). And like federal third-party standing, federal associa- tional standing allows an association to assert the rights of people who are not before the court (the association’s members) without asserting that the associ- ation’s own rights are at stake. See id. Given that the same reasons that re- quire us to excise federal third-party standing from Georgia law would seem to apply to federal associational standing, it is doubtful that it can properly re- main a part of Georgia law. But the plaintiff here does not assert associational standing, so we must leave the question of that doctrine’s continued vitality for another day. 15 Our conclusion that federal third-party standing is not properly a part

of Georgia law should not be understood to call into question plaintiffs’ stand- ing under traditional doctrines like “next friend” standing or in qui tam 59 III. Application

Wasserman does not appear to dispute our basic conclusions

about the nature of our constitutional standing requirements. In-

stead, Wasserman raises arguments that she still has standing to

assert Pham’s federal equal protection rights in Georgia courts.

First, relying on the Supremacy Clause of the United States Consti-

tution, Wasserman contends that Georgia’s constitutional standing

requirements are either unconstitutional or preempted to the extent

that their application would prevent her from having her federal

claim under 42 USC § 1983 adjudicated in state court. Second, she

contends that even if our constitutional standing requirements ap-

ply to her claim, she has satisfied those requirements because Pham

“assigned” his rights under the application for a conditional use

actions. In those kinds of actions, the party that is “represented” by the next friend or relator, respectively, is understood to be a party to the case, not a third party whose right a plaintiff seeks to vindicate without any legal author- ity for doing so. See, e.g., Lasseter v. Simpson, 78 Ga. 61, 65 (3 SE 243) (1886); Dent v. Merriam, 113 Ga. 83 (38 SE 334) (1901); OCGA § 23-3-122 (b) (1). To the extent that qui tam relators are asserting a public right, they might also rely on the community-stakeholder standing that we recognized in SCV. Cf. SCV, 315 Ga. at 53-54 (2) (b)-(c). In all events, given those doctrines’ deep roots in both the common law and Georgia law, there is little doubt that the judicial power of Georgia courts would properly extend to those kinds of cases. 60 permit to her. We address each argument in turn.

A. Supremacy Clause

In our federalist system, the States “have great latitude to es-

tablish the structure and jurisdiction of their own courts.” Howlett

ex rel. Howlett v. Rose, 496 U.S. 356, 372 (III) (3) (110 SCt 2430, 110

LE2d 332) (1990). So “[t]he general rule, ‘bottomed deeply in belief

in the importance of state control of state judicial procedure, is that

federal law takes the state courts as it finds them.’” Id. That said, a

state may not simply decline to recognize federal law, including fed-

eral causes of action like the one provided by 42 USC § 1983. After

all, “[t]he laws of the United States are laws in the several States,

and just as much binding on the citizens and courts thereof as the

State laws are.” Id. at 367 (III) (punctuation omitted). And “the Su-

premacy Clause forbids state courts to dissociate themselves from

federal law because of disagreement with its content or a refusal to

recognize the superior authority of its source.” Id. at 371 (III) (2).

The United States Supreme Court has applied these principles

in a line of decisions addressing challenges under the Supremacy

61 Clause to state court decisions declining to reach the merits of fed-

eral claims. In that line of decisions, the Court has drawn a line be-

tween two kinds of state-court rules. A rule that targets or discrim-

inates against a federal cause of action or is “used as a device to

undermine federal law” violates the Supremacy Clause. Haywood v.

Drown, 556 U.S. 729, 739 (IV) (129 SCt 2108, 173 LE2d 920) (2009).

See also Howlett, 496 U.S. at 381 (V). On the other side of the line,

a “neutral jurisdictional rule” — that is, a rule that “reflect[s] the

concerns of power over the person and competence over the subject

matter that jurisdictional rules are designed to protect” — can

properly bar the claim of a plaintiff who fails to comply with the

neutral rule. Haywood, 556 U.S. at 735 (III), 739 (IV) (quoting How-

lett, 496 U.S. 356). See also, e.g., Douglas v. N.Y., New Haven &

Hartford R.R. Co., 279 U.S. 377 (49 SCt 355, 73 LE 747) (1929) (up-

holding state discretionary rule allowing state courts to decline ju-

risdiction over cases when neither party was a state resident); Herb

v. Pitcairn, 324 U.S. 117 (65 SCt 459, 89 LE 789) (1945) (upholding

state rule of territorial jurisdiction); Mo. ex rel. S. Ry. Co. v.

62 Mayfield, 340 U.S. 1 (71 SCt 1, 95 LE 3) (1950) (upholding state fo-

rum non conveniens rule); Johnson v. Fankell, 520 U.S. 911 (117 SCt

1800, 138 LE2d 108) (1997) (upholding state rule prohibiting inter-

locutory appeals).

Georgia’s constitutional standing requirements are the second

kind of rule. As we explained above, the constitutional rule that a

plaintiff must assert her own rights to maintain an action has long

been understood as a limitation on the judicial power of our courts.

See SCV, 315 Ga. at 44 (2) (a), 50 (2) (b). And unlike the state rules

that the Supreme Court has found wanting in its Supremacy Clause

decisions, there is no serious argument that this constitutional

standing rule targets or discriminates against federal rights or

causes of action in any way. If a plaintiff brings a claim in Georgia

courts asserting only the rights of a nonparty, a Georgia court lacks

the power to adjudicate that claim, regardless of whether the rights

asserted or the cause of action come from state or federal law. Com-

pare Haywood, 556 U.S. at 739, 741-742 (IV) (deeming “unconstitu-

tional” a “unique scheme adopted by the State of New York” that

63 shielded correction officers from damages claims brought by prison-

ers “[b]ased on the belief that damages suits against correction offic-

ers are frivolous and vexatious” because it was “effectively an im-

munity statute cloaked in jurisdictional garb” that was “used as a

device to undermine federal law”); Howlett, 496 U.S. at 375, 379-380

(IV) (state court’s decision extending sovereign immunity to bar “one

discrete category of § 1983 claims” “violate[d] the Supremacy

Clause” because it discriminated against certain federal actions for

constitutional violations and could be “based only on the rationale

that [state officials] should not be held liable for § 1983 violations in

the courts of the State”); Felder v. Casey, 487 U.S. 131, 138 (II) (A)

(108 SCt 2302, 101 LE2d 123) (1988) (state statute requiring a no-

tice of claim to be filed in Section 1983 cases in state courts pre-

empted by federal law) (superseded in part by statute on other

grounds). Wasserman offers no argument to the contrary, or any

suggestion as to how a neutral standing requirement that a plaintiff

must assert her own rights to maintain an action works in any way

64 to discriminate against or undermine federal law.16 And indeed, any

such argument would be hard to square with the language of 42 USC

§ 1983, which itself gives a plaintiff a right of action only against a

person who under color of state law “depriv[es]” the plaintiff “of any

rights, privileges, or immunities secured by the Constitution and

laws,” and makes the defendant liable only “to the party injured.” In

other words, with respect to claims under 42 USC § 1983, our con-

stitutional standing rule does nothing more than require that the

person who has the “right of action” under that statute — someone

who has asserted that she has been “deprived” of her federal rights

— is the person who brings that claim in court. In short, Georgia’s

constitutional standing requirements are neutral jurisdictional

rules of the sort that state courts may apply evenhandedly to federal

claims without running aground on the Supremacy Clause. So

16 Wasserman cites an Oregon Supreme Court decision that held that

Oregon’s “standards of mootness and justiciability” were not “jurisdictional rules” that could be applied to bar a Section 1983 claim because those stand- ards did not reflect concerns about the power of their courts over the person or competence over the subject matter. Barcik v. Kubiaczyk, 321 Or. 174, 184 (895 P2d 765) (1995). But a decision interpreting Oregon law has no bearing on whether Georgia’s constitutional standing requirements are jurisdictional rules that concern the power of Georgia courts to resolve disputes. 65 Wasserman’s argument that we cannot apply Georgia’s law of con-

stitutional standing fails.

B. Constitutional Standing

In a supplemental brief filed after oral argument at this Court’s

request, Wasserman contended that she has constitutional standing

to assert Pham’s equal protection rights as her own because he as-

signed any such claim to her in an agreement that assigned Wasser-

man his “rights under the Application” for the conditional use per-

mit.17 Although our holding today does not disturb existing Georgia

law on asserting assigned claims, see, e.g., OCGA § 44-12-24; OCGA

§ 13-8-2 (a) (5), the County raised threshold questions in response to

Wasserman’s supplemental brief about whether a federal equal

17 At oral argument, Wasserman advanced a different theory: she con-

tended that she has community-stakeholder standing because the county vio- lated a public right by violating Pham’s federal equal protection rights. She later disavowed that novel argument in her supplemental brief, so we need not resolve it. That said, we are not aware of any authority for the idea that a plaintiff may assert a government’s violation of another person’s individual constitutional rights — that is, a violation of a third party’s private rights — as a violation of “public rights” also shared by the plaintiff. Nor are we aware of any right of action that would allow a plaintiff to vindicate that novel theory. See SCV, 315 Ga. at 63-64 (2) (d) (noting separate threshold requirement, in addition to standing, that a plaintiff must have a right of action (sometimes called “statutory standing”) to sue). 66 protection claim belonging to Pham was assignable and in fact as-

signed to Wasserman, such that she could assert Pham’s equal pro-

tection rights as her own. Because Wasserman proceeded under a

theory of third-party standing below, these arguments and ques-

tions were neither raised nor addressed below nor presented to this

Court for review. We are a court of review, not of first view, see Ef-

ficiency Lodge, Inc. v. Neason, 316 Ga. 551, 567 (3) (889 SE2d 789)

(2023), so we leave it to the courts below to resolve these questions

in the first instance if Wasserman continues to press her assignment

argument on remand.

Judgment vacated and case remanded with direction. All the Justices concur.

67 Decided January 28, 2025.

Certiorari to the Court of Appeals of Georgia — 367 Ga. App.

694.

George E. Butler II, for appellant.

Buckley Christopher & Hensel, Timothy J. Buckley III, Eric J.

O’Brien, for appellee.

Christopher M. Carr, Attorney General, Stephen J. Petrany,

Solicitor-General, Ross W. Bergethon, Deputy Solicitor-

General, amici curiae.