Standing in Missouri's federal and state courts

Anthony Meyer
Anthony Meyer received his B.A. from Knox College, M.A from Truman State University, and J.D. from the University of Missouri. He is a lawyer at Lear Werts LLP in Columbia. In law school, he was the managing editor of the Missouri Law Review and upon graduating, he served as a law clerk to the Hon. Paul C. Wilson of the Supreme Court of Missouri.

In this manner, the judicial branch would be transformed into a political one.⁴ As Justice Antonin Scalia once observed, disregard of standing doctrine may inevitably lead to “an overjudicialization of the process of self-governance.”⁵ Indeed, the legislative branch, though often described as “the most dangerous branch,” is also the most responsive to political pressure.⁶ The courts, on the other end of the spectrum, maintain their reputation as the “least dangerous branch,” and while the power of judicial review is an extraordinary one, that power may only be exercised once proper litigants enter and present issues through the adversary context.⁷ Courts, thus, require a litigant to demonstrate standing at each stage of a lawsuit – pursuant to the appropriate standard of proof⁸ – so that any judicial opinion is not advisory.⁹

While this principle applies generally in both Missouri’s federal and state courts, it is a mistake to consider standing doctrine in one court system to be interchangeable with standing doctrine in the other – or even to overstate the relatedness of the two standing doctrines. This article provides a summary of the two standing doctrines, drawing attention to their distinctions. Indeed, the relationship between standing doctrine in Missouri’s federal and state courts is nuanced. On the one hand, the foundations of the two standing doctrines are unrelated, for the constraints that apply to limited jurisdiction federal courts simply do not apply to general jurisdiction state courts.¹⁰ On the other, Missouri state courts often find federal precedent persuasive and, in some instances, have concluded the standing analysis applied in federal courts is also the law in Missouri.¹¹ Nonetheless, Missouri state court standing doctrine is more flexible overall than that in the federal courts, and overuse of federal standing precedent in state court has the potential to threaten that flexibility. Accordingly, even though the two standing doctrines regularly arrive at the same conclusions – i.e., whether a plaintiff has standing to sue – Missouri lawyers should keep separate their underlying reasoning and legal authority because the two doctrines derive from different constitutions and ultimately reflect different values of our federalist government.

Standing in Missouri’s Federal Courts
Standing in the federal courts is born out of Article 3’s requirement that the judicial power of the United States is limited, extending only to certain “cases” and “controversies.”¹² In Baker v. Carr, the U.S. Supreme Court held that no case or controversy exists if a plaintiff lacks “a personal stake in the outcome.”¹³ The “irreducible constitutional minimum of standing” requires a plaintiff to demonstrate three elements:

[1] an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[;] 

[2] a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court[; and] 

[3] it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.¹⁴

The Court has continuously refined what constitutes an injury¹⁵ and recently concluded bare procedural violations divorced from any concrete harm are insufficient to demonstrate an injury in fact.¹⁶ The Court has also fleshed out the tests for causation – i.e., that the injury must have been the consequence of the defendant’s actions¹⁷ – and redressability – i.e., that a remedial judgment from a federal court would have some effect on the injury.¹⁸ Last, the Court has held that a plaintiff must personally show injury or a likelihood of future injury, excepting certain representative actions.¹⁹

The Court in its current term reaffirmed these baseline principles in two cases. In Carney v. Adams, the plaintiff – a politically independent lawyer – filed suit alleging Delaware’s constitutional requirement that a major political party may hold no more than a bare majority in its courts violated his First Amendment right to free association because he would have to join a major party if he wanted to become a Delaware judge.²⁰ The unanimous Court held the plaintiff had only a generalized grievance – not an injury in fact – because he only had an abstract intent to apply for a judgeship and was not “able and ready” to do so.²¹

In Trump v. New York, the plaintiffs alleged President Donald Trump’s memorandum to the U.S. Secretary of Commerce directing the exclusion from the 2020 census of aliens residing in the United States without a lawful immigration status had a chilling effect on immigrants responding to the census, which would result in decreases in congressional funding.²² The Court held that the plaintiffs lacked standing because they had not suffered a concrete injury and that the case was not ripe for consideration.²³ The Court concluded the case was “riddled with contingencies” in the record regarding whether the plaintiffs suffered any injuries, making federal judicial review unfeasible.²⁴  

Apart from these constitutional requirements, the Court has outlined several prudential requirements.²⁵ Primary among these is a general prohibition against third-party standing.²⁶ There are, nevertheless, many exceptions to this general rule allowing for certain representative actions, including where a third party might be unable to sue or the parties’ interests align, such as with a doctor and patient.²⁷

Additionally, the Court has adopted requirements for organizational standing. The organization must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” ²⁸

Finally (and as a counterpoint to Missouri’s standing doctrine, discussed below), the Court previously allowed for some taxpayer standing, announcing a test in Flast v. Cohen,²⁹ but subsequent decisions have demonstrated this type of standing is no longer favored, and the Court has slowly retreated from Flast’s high-water mark. ³⁰

Standing in Missouri’s State Courts
The Supreme Court of Missouri has made pronouncements regarding standing that sound similar to those of federal courts. The Court has described the doctrine of standing as “a jurisdictional matter antecedent to the right to relief.”³¹ If the Court finds a party lacks standing, it “must dismiss the case because it does not have jurisdiction of the substantive issues presented.”³²

But the similarities do not carry far, for the foundations of the two standing doctrines are wholly distinct. The Court has held that standing doctrine is a prudential, not jurisdictional, doctrine.³³ And, in contrast to the federal courts, which have limited jurisdiction, Missouri circuit courts are courts of general jurisdiction and “have original jurisdiction over all cases and matters.”³⁴ Nonetheless, circuit courts still must enforce standing doctrine because Missouri courts may not issue advisory opinions.³⁵ Standing doctrine, thus, “is used to ascertain if a party is sufficiently affected by the conduct complained of in the suit, so as to [e]nsure that a justifiable controversy is before the court.”³⁶ For a litigant to demonstrate standing, the court must conclude “that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote.”³⁷ Recitations of federal standing doctrine do not contain such qualifiers.

To be sure, absent a close reading, this recitation of Missouri’s standing doctrine may sound identical to that of federal courts. But glossing over it risks ignoring the circumstances under which Missouri’s general jurisdiction courts may take a more expansive view of standing than their federal counterparts. Indeed, nowhere is this clearer than with taxpayer standing. In Manzara v. State,³⁸ the Court recorded the history of taxpayer standing in Missouri, going as far back as an 1873 case, Newmeyer v. Missouri & Mississippi Railroad, where the Court concluded county residents suffered an injury through their county’s subscription to a capital stock of a railroad.³⁹

Following Newmeyer, “Missouri courts have held that when a public interest is involved and public monies are being expended for an illegal purpose, taxpayers have the right to enjoin the action.”⁴⁰ As the Court has long held, taxpayer standing exists “so that ordinary citizens have the ability to make their government officials conform to the dictates of the law when spending public money,”⁴¹ and so taxpayers “can hold public officials accountable for their acts” and have “some mechanism of enforcing the law.”⁴²

That said, there are times when standing doctrine in Missouri’s state courts shares many of its conclusions with the federal courts – broadly speaking, where there is no injury, there is no case, irrespective of the court system. And, where appropriate, the Court has adopted identical analyses. For instance, the requirements to assert organizational standing are identical in Missouri’s state and federal courts.⁴³ In St. Louis Association of Realtors v. City of Ferguson, the Court concluded the federal court test comported with the purposes of Missouri standing doctrine, namely to “ensure that an actual controversy exists between persons whose interests are adverse and that those who stand to benefit from the litigation have a legally protectable interest  at stake.”⁴⁴ Of course, this only means that federal precedent is highly persuasive – not binding – and Missouri state courts remain free to depart from federal precedent.

Discussion
Several conclusions may be drawn from this summary of the two standing doctrines. These conclusions are important for all litigated disputes, but especially so for cases at the margins where standing is genuinely at issue.  

1. Standing Is Almost Always Met in Both Missouri’s Federal and State Courts
Though challenges based on standing might now be in vogue, standing is a jurisdictional threshold that is readily cleared in nearly all instances. As most practicing lawyers have learned, standing is rarely at issue in disputes that result in filed lawsuits, such as run-of-the-mill tort or contract cases. Cases in which a plaintiff clearly lacks standing have almost certainly been selected out of the available data points either because a lawsuit was not filed or it was disposed of through some other means, like a motion to dismiss for failure to state a claim or a motion for summary judgment. Similarly, where the background facts of a case that standing would likely be difficult to prove, a lawyer might decline to take on the case. This approach seems to account for most cases in either court system most of the time. Accordingly, it is important to remember the overall context of judicial pronouncements regarding standing. Just as the stacks of hard-bound reporters represent only a fraction of society’s total disputes, so too are the cases in which standing is at issue only a fraction of the whole. Accordingly, in most cases, standing need not be discussed in any depth, and lawyers in those cases should remember that the doctrine is ultimately a simple one (i.e., has the plaintiff suffered a harm?). Thus, when filing a motion to dismiss, Missouri lawyers should consider whether the substance of a motion to dismiss for lack of standing (a narrow argument) might be better presented in a motion to dismiss for failure to state a claim.

2. The Supreme Court of Missouri Has Not Made Wholesale Adoption of Article 3 Standing Requirements
Even though the two standing doctrines often share the same conclusions, the Supreme Court of Missouri has not adopted Article 3’s standing requirements – nor would the Court ever have reason to. Article 3’s strictures simply do not apply to the states. More so, Missouri’s circuit courts are courts of general, not limited, jurisdiction “[i]n contrast to the federal system.”⁴⁵ General jurisdiction means the power of the state’s courts is “limited only by the authority granted exclusively to the federal government or reserved by the state or federal constitution to the people themselves.”⁴⁶ It follows that the foundation of standing doctrine in Missouri is the separation of powers principle that prohibits the judiciary from exercising the powers of another governmental department.⁴⁷ By contrast, standing doctrine in the federal system exists to ensure the limited federal government remains limited and the powers of the federal courts do not extend beyond those prescribed in Article 3.

Thus, Missouri courts look to federal courts for guidance on standing doctrine only where it makes sense to do so. For example, in Corozzo v. Wal-Mart Stores, Inc., the Missouri Court of Appeals-Western District dismissed the plaintiff’s petition for lack of standing, concluding the plaintiff – whose petition invoked rights under the Fair Credit Reporting Act (FRCA) – lacked a concrete injury.⁴⁸ Without a genuine dispute to resolve, any opinion would have been advisory. The court discussed at length the U.S. Supreme Court decision in Spokeo v. Robbins, which concluded the same – i.e., that a plaintiff who also invoked rights under the FRCA only alleged “a bare procedural violation, divorced from any concrete harm.”⁴⁹ But that is not to say Corozzo – or later decisions – followed Spokeo or adopted its version of the standing doctrine. Instead, the conclusion regarding a lack of injury based on the facts as alleged was the same in either federal or state court.

This analysis is in line with the Supreme Court of Missouri’s reasoning in Harrison v. Monroe County, where the Court also applied federal precedent extensively in finding the plaintiff had standing to sue.⁵⁰ But the Court elided key questions under Article 3 standing – such as whether the plaintiff had a particularized interest⁵¹ sufficient to create a case or controversy. Instead, the Court focused on the malleable language of Baker v. Carr – that the plaintiff must have a “personal stake” in the outcome to demonstrate standing.⁵² Use of this type of language drawn from federal precedent permits continued flexibility in state court standing doctrine.

3. For Cases at the Margins, Missouri State Court Standing Doctrine Is Less Stringent Than That of Federal Courts
This normative observation is based on several propositions. First, as demonstrated, the Supreme Court of Missouri has not adopted all the strictures of federal standing doctrine. Instead, the Court allows for standing even where a plaintiff’s interest in the lawsuit “is attenuated, slight or remote,”⁵³ so long as the plaintiff can demonstrate a “personal stake” in the outcome.⁵⁴ Additionally, the Court has always allowed for robust taxpayer standing, where the U.S. Supreme Court has signaled its taxpayer standing doctrine is significantly more restrictive.⁵⁵ Finally, state courts – though not Missouri’s – may issue advisory opinions because they are not bound by Article 3, and the practice is not otherwise prohibited by the U.S. Constitution.⁵⁶ It follows that the outer limits of state court standing doctrine are categorically less stringent than those of federal courts.

Related to this last point is the fact that the Tenth Amendment reserves to the states all the powers not delegated to the United States. The states may provide more or different – but no less or fewer – rights than the U.S. Constitution. The Supreme Court of Missouri observed as much in one of its most widely cited religion cases, Gibson v. Brewer:

None of the parties cite, let alone discuss, the religion clauses of the Missouri Constitution…. [But] [t]his Court has held ‘that the provisions of the Missouri Constitution declaring that there shall be a separation of church and state are not only more explicit but more restrictive’ than the First Amendment. Therefore, this Court does not address the applicability, if any, of the Missouri Constitution to this case.⁵⁷

Though the Court has not been as explicit regarding standing doctrine as it was for the religion clauses in Gibson, Missouri standing doctrine likely also represents a departure from its U.S. Constitution counterpart.⁵⁸ Indeed, the Court’s jurisprudence as described above suggests this is likely so.

Nonetheless, the flexibility of Missouri state courts’ standing doctrine relative to that of the federal courts should not be taken out of proportion. The departure is a slight one, after all. But for cases at the margins, the distinctions might make all the difference. For example, several cases presented challenges to the composition of the Clean Water Commission (responsible for permitting concentrated animal feeding operations, or CAFOs) following the passage of House Bill 1713 in 2016. In Missouri Coalition for the Environment v. State, the Supreme Court of Missouri declined to extend standing to an environmental group.⁵⁹ That group conceded it did not have taxpayer standing, arguing instead it possessed standing based on “an interest in a legislature that observes the state Constitution,” an interest in protecting water quality in the state, and an interest under § 516.500 (the statute of limitations for procedural challenges under the Missouri Constitution).⁶⁰ Nonetheless, the Court held those allegations did not amount to a showing that the group was “adversely affected” by the Clean Water Commission.⁶¹

On the other hand, in Trenton Farms RE, LLC v. Hickory Neighbors United, Inc., the Court found standing existed for an appellant corporation because the commission had adjudicated the corporation’s rights with respect to the respondent’s CAFO permit.⁶² The Court found federal authority regarding the U.S. Constitution’s appointments clause persuasive and reasoned a finding of no standing – or a rule that required litigants to allege they received less-favorable treatment because of the agency’s unlawful composition – would create a disincentive for litigants to bring such challenges.⁶³ In other words, the appellant corporation did not have to contend that but for the agency’s allegedly unconstitutional composition, the respondent would have been denied a CAFO permit.⁶⁴ Notably, the Court’s analysis did not extend the parameters of its standing doctrine but, instead, concluded a finding of standing was consistent with the purpose of preventing advisory opinions.⁶⁵

All in all, what lessons are learned by contrasting Missouri Coalition for the Environment with Trenton Farms? Missouri Coalition for the Environment demonstrates the Supreme Court of Missouri does not – and will not – entertain generalized grievances.⁶⁶ Trenton Farms demonstrates that while a litigant must have an interest in the outcome of a case, that interest does not necessarily have to be tied to the merits of the case.⁶⁷

Finally, consider if Carney v. Adams (discussed above) had been filed in a Missouri circuit court challenging a hypothetical state law requiring a major party hold no more than a bare majority of certain judicial positions under the Missouri Constitution’s speech clause.⁶⁸ Suppose also the plaintiff had presented the circuit court the same level of factual development – i.e., that the plaintiff alleged he would apply for a judgeship but for the requirement to join a major party.⁶⁹ Setting aside any discussion of the merits, would the plaintiff have standing under Missouri’s standing doctrine to challenge the constitutionality of the law?

The answer should be yes. Without a finding of standing, the law at issue would be beyond judicial review. But the hypothetical plaintiff’s interest in the lawsuit and personal stake in the outcome should be enough to support standing, as illustrated by the plaintiff’s but-for allegations. Further, Missouri’s state court standing doctrine’s flexibility obviates the need to compel the plaintiff’s speech before the plaintiff may file suit. The Supreme Court of Missouri acknowledged this reasoning in Geier v. Missouri Ethics Commission but did so in dicta because it held the plaintiffs’ challenges to the facial validity of certain campaign finance laws were not ripe and, thus, not judiciable for a reason other than standing.⁷⁰ All in all, this hypothetical application of Carney v. Adams – admittedly a case at the margins – illustrates not only that Missouri standing doctrine is less stringent than federal standing doctrine but also that this flexibility is an integral characteristic of Missouri’s state courts.

Conclusion
A litigant’s standing to sue is not always genuinely at issue in a lawsuit, but Missouri lawyers should keep in mind the differences between the two standing doctrines in Missouri’s federal and state courts, especially when developing a litigation strategy. While the two doctrines regularly share the same conclusions, the differences in the two doctrines – which derive from different constitutions – are important for cases at the margins.

More broadly, the issues latent in this discussion of standing highlight the need for continued precision in our legal system. In short, courts intended to be of general jurisdiction should be kept general, and courts intended to be of limited jurisdiction should be kept limited.⁷¹ The federal courts are intended as a forum to litigate under federal law and to resolve interstate disputes; state courts reflect the power of a state sovereign to resolve all legitimate disputes among its residents. While crosspollination in other areas of the law might result in fertile new ground, when it comes to standing doctrine, precision helps prevent the erosion of those principles underlying our federalist system. And this is no small matter, for almost one-third of Missouri state court appellate opinions on standing in the last five years have at least cited to federal precedent.⁷² Nonetheless, precision regarding the two standing doctrines ensures our court systems remains predictable in their ability to provide proper forums for litigants and lawyers alike.⁷³

Endnotes
1  Anthony Meyer received his B.A. from Knox College, M.A from Truman State University, and J.D. from the University of Missouri. He is a lawyer at Lear Werts LLP in Columbia. In law school, he was the managing editor of the Missouri Law Review and upon graduating, he served as a law clerk to the Hon. Paul C. Wilson of the Supreme Court of Missouri. With many thanks to Benjamin Kweskin, a superlative editor and friend. The author also thanks his colleagues at Lear Werts LLP – Bradford B. Lear, Sander C. Sowers, and Todd C. Werts – for their editing and mentorship.

The author extends his special thanks for excellent research assistance to Shea O’Sullivan, a 3L at the University of Missouri–Kansas City School of Law. In law school, she was the program editor of the University of Missouri–Kansas City Law Review and class representative of the Student Bar Association.

2  See Hon. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881 (1983).

3  See, e.g., Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016); Lujan v. Defs. of Wildlife, 504 U.S. 555, 573-74 (1992) (plurality); Cope v. Parson, 570 S.W.3d 579, 583, 586 (Mo. banc 2019); St. Louis Ass’n of Realtors v. City of Ferguson, 354 S.W.3d 620, 623 (Mo. banc 2011).

4  See U.S. Const., art. III, § 1 (providing for life terms for federal judges); see generally Mo. Const., art. V (providing for the Missouri Nonpartisan Court Plan’s system for judicial appointment).

5  Hon. Scalia, supra note 2, at 881.

6  See id. (quoting The Federalist No. 48 (James Madison)).

7  See id. at 891 (quoting Flast v. Cohen, 392 U.S. 83, 99-101 (1968)); Alexander M. Bickel, The Least Dangerous Branch 1 (1962). Notably, though, even Justice Scalia recognized that standing doctrine “only excludes persons and not issues from the courts.” Hon. Scalia, supra note 2, at 892.

8  See Lujan, 504 U.S. at 560–61.

9  See, e.g., Carney v. Adams, No. 19-309, 529 U.S. ___ (2020), slip op. at 4-5, 10; Trenton Farms RE, LLC v. Hickory Neighbors United, Inc., 603 S.W.3d 286, 291-93 (Mo. banc 2020).

10  See, e.g., Spokeo, 136 S.Ct. at 1547.

11  See, e.g., St. Louis Ass’n of Realtors, 354 S.W.3d at 623; Harrison v. Monroe County,716 S.W.2d 263 (Mo. banc 1986) (per curiam).

12  U.S. Const., art. III, § 2.

13  369 U.S. 186, 205 (1962).

14  Lujan, 504 U.S. at 560–61 (quotations, citations, and alterations omitted).

15  See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) (Congress may confer Article III standing through the creation of statutory right).

16  Spokeo, 136 S.Ct. at 1550.

17  Warth v. Seldin, 422 U.S. 490, 505 (1975).

18  Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 262-63 (1977); Allen v. Wright, 468 U.S. 737 (1984).

19  City of Los Angeles v. Lyons, 461 U.S. 95 (1983).

20  Carney, No. 19-309, slip op. at 1-3.

21  Id. at 6.

22  Trump v. New York, No. 20-366, 529 U.S. ___ (2020) (per curiam), slip op. at 2.

23  Id. at 3-4.

24  Id. at 4. Justice Breyer, joined by Justice Sotomayor and Justice Kagan, dissented and reasoned that because there was a “substantial likelihood” the plaintiffs’ requested relief would redress their alleged injuries, the Court could reach the plaintiffs’ challenge and affirm the lower court’s holding. Id. at 2 (Breyer, J., dissenting) (quoting Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 332 (1999)).

25  Notably, because the prudential requirements are not constitutional rules, they are subject to legislative override. See June Med. Servs. LLC v. Russo, 140 S.Ct. 2103, 2117 (2020) (plurality); see also Erwin Chemerinsky, Federal Jurisdiction at § 2.3.4 (7th ed. 2016).

26  See, e.g., Warth, 422 U.S. 499.

27  See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972).For others, see Chemerinsky, supra note 25, at § 2.3.4.

28  Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977); accord United States v. Students Challenging Regulatory Agency Procs., 412 U.S. 669 (1973); Sierra Club v. Morton, 405 U.S. 727 (1972).

29  392 U.S. at 102-03. The Court held that to demonstrate standing, the taxpayer must (1) establish a logical link between his or her status and the type of legislative enactment attacked, and (2) establish a nexus between that status and the precise nature of the constitutional infringement alleged. Id.

30  See, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011); Hein v. Freedom from Religion Found., Inc., 551 U.S. 587 (2007).

31  Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 612 (Mo. banc 2006).

32  Id.

33  Sweich v. Nixon, 408 S.W.3d 769, 774 (Mo. banc 2013).

34  Mo. Const., art. V, § 14.

35  Mitchell v. Residential Funding Corp., 334 S.W.3d 477, 488 (Mo. App. W.D. 2010).

36  Id. (quotation omitted).

37  Ste. Genevieve Sch. Dist. R-II v. Bd. of Alderman of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002) (emphasis added).

38  Manzara v. State, 343 S.W.3d 656, 659 (Mo. banc 2011).

39  Newmeyer v. Missouri & Mississippi Railroad, 52 Mo. 81 (1873).

40  Manzara, 343 S.W.3dat 659 (quotation omitted).

41  Ste. Genevieve Sch. Dist. R-II, 66 S.W.3d at 11.

42  Manzara, 343 S.W.3d at 659 (quotation omitted). 

43  St. Louis Ass’n of Realtors, 354 S.W.3d at 623.

44  Id. (quotations and alterations omitted).

45  J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009) (emphasis added).  

46  Id. at 253 n.6 (citing U.S. Const., amend. X)

47  See Mo. Const., art. II.

48  Corozzo v. Wal-Mart Stores, Inc., 531 S.W.3d 566 (Mo. App. W.D. 2017). But see Courtright v. O’Rielly Automotive, 604 S.W.3d 694 (Mo. App. W.D. 2020) (finding standing where the plaintiff alleged he was “without a paycheck” as a consequence of a procedural violation of the FRCA); Campbell v. Adecco USA, Inc., 561 S.W.3d 116 (Mo. App. W.D. 2018) (concluding a bare violation of the FCRA was insufficient for standing, but an allegation that a FRCA led to an adverse employment action was sufficient for standing).

49  Corozzo, 531 S.W.3d at 576 (quoting Spokeo, 136 S.Ct. at 1549).

50  Harrison v. Monroe County, 716 S.W.2d 263 (Mo. banc 1986).

51  See, e.g., Hollingsworth v. Perry, 570 U.S. 693, 706-07 (2013).

52  Harrison, 716 S.W.2d at 266 (quoting Baker, 369 U.S. at 205).

53  Ste. Genevieve Sch. Dist. R-II, 66 S.W.3d at 10.

54  Harrison, 716 S.W.2d at 266 (quoting Baker, 369 U.S. at 205).

55  See, e.g., Ariz. Christian Sch. Tuition Org., 563 U.S. 125; Hein, 551 U.S. 587.

56  Alabama, Colorado, Delaware, Florida, Maine, Massachusetts, Michigan, New Hampshire, Oklahoma, Rhode Island, and South Dakota allow their highest courts to issue advisory opinions in some circumstances. Lucas Moench, State Court Advisory Opinions: Implications for Legislative Power and Prerogatives, 97 B.U. L. Rev. 2243, 2246 (2017).

57  Gibson v. Brewer, 952 S.W.2d 239, 246 (Mo. banc 1997).

58  See Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006) (“provisions of our state constitution may be construed to provide more expansive protections than comparable federal constitutional provisions”) (quoting State v. Rushing, 935 S.W.2d 30, 34 (Mo. banc 1996)).

59  Missouri Coalition for the Environment v. State, 579 S.W.3d 924 (Mo. banc 2019).

60  Id. at 927-28.

61  Id. at 928. The Hon. W. Brent Powell, writing for the Court, also stated the environmental group was unable to show “a cognizable interest or a threatened or actual injury.” Id. at 927.

62  Trenton Farms RE, LLC, 603 S.W.3d at 291-93.

63  Id. at 292-93.

64  Id. at 292.

65  Id. at 293.

66  Mo. Coal. for Env’t, 579 S.W.3d at 927.

67  Trenton Farms RE, LLC, 603 S.W.3d at 292.

68  Mo. Const., art. I, § 8 provides in part: “That no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty.”

69  Of course, this hypothetical asks the reader to suspend disbelief and ignore both the unique mechanics of the Missouri Plan and its demonstrable benefits. See Hon. Laura Denvir Stith & Jeremy Root, The Missouri Nonpartisan Court Plan: The Least Political Method of Selecting High Quality Judges, 74 Mo. L. Rev. 711 (2009).

70  Geier v. Missouri Ethics Commission, 474 S.W.3d 560, 569 (Mo. banc 2015).

71  See U.S. Const., amend. X.

72  This data is derived from a survey of cases appearing on Westlaw during the relevant time period.

73  See Hon. Oliver Wendell Holmes, The Path of Law, 10 Harv. L. Rev. 457 (1897).