Defending Others Could Leave You Stuck With The Bill

A couple weeks ago, an important decision was handed down concerning non-profits that advocate on behalf of third parties. In La Asociacion De Trabajadores De Lake Forest v. Lake Forest, a group of deputies in Orange County allegedly ran day laborers off of several public sidewalks customarily used to obtain work.  (La Asociacion De Trabajadores De Lake Forest v. Lake Forest, Calif., 9th Cir., No. 08-56564, 10/22/10.) The group immediately notified the non-profit NDLON, a group that seeks to protect the ability of day laborers to seek work, of what was occurring. NDLON then filed suit to stop the county from enforcing a law that prohibited day laborers from soliciting employment in certain public places. Though the county did repeal the law, deputies allegedly continued to run laborers off, advising them that their behavior  still constituted as illegal. But because the law was repealed, NDLON was dismissed from the case as they were no longer being injured. Though day laborers were still being run off, the root of NDLON‘s injury was the law itself, not the deputies. Consequently, once the law was repealed, there was no longer an injury to remedy for NDLON and thus no standing. This holding was recently affirmed by the Court of Appeals for the Ninth Circuit (the opinion can be found here.)

In lieu of this, the primary thing that non-profits must understand is that just because they have an interest in a particular issue, does not mean that interest amounts to enough for suit. No case makes this clearer than the Supreme Court case Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) in which the Court held that organizations, including non-profits, can only sue on behalf of others when it, “suffers both a diversion of its resources and frustration of its mission.” Consequently, the time old tradition of non-profits manufacturing injury by running to spend money on a case or expending resources to solve a problem, that would not otherwise affect them, is just not enough. Under Lujan, non-profits have to prove that they were forced to expend resources on solving the problem or a different injury would have been suffered. In this case, the court felt NDLON failed to do so.

Takeaway? There are so many organizations that seek to set some precedent or establish some sort of case law when it comes to particular issues. However, if you find yourself having to reach in order to create some sort of interest with that issue then you run the risk of not only having your case dismissed, but also footing the bill. Though the law can reward creativity, there comes a point where a case ceases to be creative and becomes more of a false hope. Just as non-profits must take care to ensure that activities fall within their mission statement, so to must they ensure cases lie within their interests.

Also, take extra special care in who you hire to litigate your cases. In La Asociacion, when the opposing counsel argued that NDLON couldn’t sue on the day laborers behalf, the attorney for NDLON failed to respond or present any evidence to the contrary. As a result the case got dismissed. Not to say whether it was or was not all the attorneys fault, realize that just because an attorney has a degree, doesn’t mean you or your non-profit should stand there twiddling. Make sure to ask questions, be involved and stay updated.