U.S. Supreme Court Linda R. S. v. Richard D., 410
U.S. 614 (1973) Linda R. S. v. Richard
D. No. 71-6078 Argued December 6,
1972 Decided March 5, 1973 410
U.S. 614 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS Syllabus Appellant, the mother of an illegitimate child, brought a class
action to enjoin the "discriminatory application" of Art. 602 of
the Texas Penal Code providing that any "parent" who fails to
support his "children" is subject to prosecution, but which, by
state judicial construction, applies only to married parents.
Appellant sought to enjoin the local district attorney from
refraining to prosecute the father of her child. The three-judge
District Court dismissed appellant's action for want of
standing: Held: Although appellant has an interest in her child's
support, application of Art. 602 would not result in support, but
only in the father's incarceration, and a private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution
of another. Pp. 410 U. S.
616 -619.

															335 F. Supp. 80, affirmed.

															MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined.
WHITE, J., filed a dissenting opinion, in which DOUGLAS, J.,
joined, post, p. 410 U. S. 619 .
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, post, p. 410 U. S.
622 .

															MR. JUSTICE MARSHALL delivered the opinion of the Court.

															Appellant, the mother of an illegitimate child, brought this
action in United States District Court on behalf of herself, her
child, and others similarly situated to enjoin Page 410 U. S. 615 the "discriminatory application" of Art. 602 of the Texas Penal
Code. A three-judge court was convened pursuant to 28 U.S.C. §
2281, but that court dismissed the action for want of standing.
[ Footnote 1 ] 335 F.
Supp. 804 (ND Tex.1971). We postponed consideration of
jurisdiction until argument on the merits, 405 U.S. 1064, and now
affirm the judgment below.

															Article 602, in relevant part, provides:

															"any parent who shall willfully desert, neglect or refuse to
provide for the support and maintenance of his or her child or
children under eighteen years of age, shall be guilty of a
misdemeanor, and upon conviction, shall be punished by confinement
in the County Jail for not more than two years."

															The Texas courts have consistently construed this statute to
apply solely to the parents of legitimate children, and to impose
no duty of support on the parents of illegitimate children. See
Home of the Holy Infancy v. Kaska, 397 S.W.2d
208 , 210 (Tex.1966); Beaver v. State, 96 Tex.Cr.R.
179, 256 S.W. 929 (1923). In her complaint, appellant alleges that
one Richard D. is the father of her child, that Richard D. has
refused to provide support for the child, and that, although
appellant made application to the local district attorney for
enforcement of Art. 602 against Richard D., the district attorney
refused to take action for the express Page 410 U. S. 616 reason that, in his view, the fathers of illegitimate children
were not within the scope of Art. 602. [ Footnote 2 ]

															Appellant argues that this interpretation of Art. 602
discriminates between legitimate and illegitimate children without
rational foundation, and therefore violates the Equal Protection
Clause of the Fourteenth Amendment. Cf. Gomez v. Perez, 409 U. S. 535 (1973); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Glona v. American Guarantee & Liability Ins.
Co., 391 U. S. 73 (1968); Levy v. Louisiana, 391 U. S.
68 (1968). But cf. Labine v. Vincent, 401 U. S. 532 (1971). Although her complaint is not entirely clear on this point,
she apparently seeks an injunction running against the district
attorney forbidding him from declining prosecution on the ground
that the unsupported child is illegitimate.

															Before we can consider the merits of appellant's claim or the
propriety of the relief requested, however, appellant must first
demonstrate that she is entitled to invoke the judicial process.
She must, in other words, show that the facts alleged present the
court with a "case or controversy" in the constitutional sense, and
that she is a proper plaintiff to raise the issues sought to be
litigated. The threshold question which must be answered is whether
the appellant has

															"alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962).

															Recent decisions by this Court have greatly expanded the types
of "personal stake[s]" which are capable of Page 410 U. S. 617 conferring standing on a potential plaintiff. Compare
Tennessee Electric Power Co. v. TVA, 306 U.
S. 118 (1939), and Alabama Power Co. v. Ickes, 302 U. S. 464 (1938), with Barlow v. Collins, 397 U.
S. 159 (1970), and Association of Data Processing
Service Organizations v. Camp, 397 U.
S. 150 (1970). But, as we pointed out only last
Term,

															"broadening the categories of injury that may be alleged in
support of standing is a different matter from abandoning the
requirement that the party seeking review must himself have
suffered an injury." Sierra Club v. Morton, 405 U.
S. 727 , 405 U. S. 738 (1972). Although the law of standing has been greatly changed in
the last 10 years, we have steadfastly adhered to the requirement
that, at least in the absence of a statute expressly conferring
standing, [ Footnote 3 ] federal
plaintiffs must allege some threatened or actual injury resulting
from the putatively illegal action before a federal court may
assume jurisdiction. [ Footnote
4 ] See, e.g., Moose Lodge No. 107 v. Irvis, 407 U. S. 163 , 407 U. S.
166 -167 (1972); Flast v. Cohen, 392 U. S.
83 , 392 U. S. 101 (1968); Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962). Cf. Laird v. Tatum, 408 U. S.
1 , 408 U. S. 13 (1972).

															Applying this test to the facts of this case, we hold that, in
the unique context of a challenge to a criminal statute, appellant
has failed to allege a sufficient nexus Page 410 U. S. 618 between her injury and the government action which she attacks
to justify judicial intervention. To be sure, appellant no doubt
suffered an injury stemming from the failure of her child's father
to contribute support payments. But the bare existence of an
abstract injury meets only the first half of the standing
requirement.

															"The party who invokes [judicial] power must be able to show . .
. that he has sustained or is immediately in danger of sustaining
some direct injury as the result of [a statute's]
enforcement." Massachusetts v. Mellon, 262 U.
S. 447 , 262 U. S. 488 (1923) (emphasis added). See also Ex parte Levitt, 302
U.S. 633, 634 (1937). As this Court made plain in Flast v.
Cohen, supra, a plaintiff must show

															"a logical nexus between the status asserted and the claim
sought to be adjudicated. . . . Such inquiries into the nexus
between the status asserted by the litigant and the claim he
presents are essential to assure that he is a proper and
appropriate party to invoke federal judicial power." Id. at 392 U. S.
102 .

															Here, appellant has made no showing that her failure to secure
support payments results from the nonenforcement, as to her child's
father, of Art. 602. Although the Texas statute appears to create a
continuing duty, it does not follow the civil contempt model
whereby the defendant "keeps the keys to the jail in his own
pocket," and may be released whenever he complies with his legal
obligations. On the contrary, the statute creates a completed
offense with a fixed penalty as soon as a parent fails to support
his child. Thus, if appellant were granted the requested relief, it
would result only in the jailing of the child's father. The
prospect that prosecution will, at least in the future, result in
payment of support can, at best, be termed only speculative.
Certainly the "direct" relationship between the alleged injury and
the claim sought to be adjudicated, which previous decisions of
this Court suggest is a prerequisite of standing, is absent in this
case. Page 410 U. S. 619 The Court's prior decisions consistently hold that a citizen
lacks standing to contest the policies of the prosecuting authority
when he himself is neither prosecuted nor threatened with
prosecution. See Younger v. Harris, 401 U. S.
37 , 401 U. S. 42 (1971); Bailey v. Patterson, 369 U. S.
31 , 369 U. S. 33 (1962); Poe v. Ullman, 367 U. S. 497 , 367 U. S. 501 (1961). Although these cases arose in a somewhat different context,
they demonstrate that, in American jurisprudence at least, a
private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another. Appellant does have an
interest in the support of her child. But given the special status
of criminal prosecutions in our system, we hold that appellant has
made an insufficient showing of a direct nexus between the
vindication of her interest and the enforcement of the State's
criminal laws. The District Court was therefore correct in
dismissing the action for want of standing, [ Footnote 5 ] and its judgment must be affirmed.
[ Footnote 6 ] So ordered. [ Footnote 1 ]

															The District Court also considered an attack on Art. 4.02 of the
Texas Family Code, which imposes civil liability upon "spouses" for
the support of their minor children. Petitioner argued that the
statute violated equal protection because it imposed no civil
liability on the parents of illegitimate children. However, the
three-judge court held that the challenge to this statute was not
properly before it, since appellant did not seek an injunction
running against any state official as to it. See 28 U.S.C.
§ 2281. The Court therefore remanded this portion of the case to a
single district judge. 335 F.
Supp. 804 , 807. The District Court's disposition of
petitioner's Art. 4.02 claim is not presently before us. But
see Gomez v. Perez, 409 U. S. 535 (1973).

															[ Footnote 2 ]

															Appellant attached to her complaint an affidavit, signed by an
assistant district attorney, stating that the State was unable to
institute prosecution "due to case law construing Art. 602 of the
Penal Code to be inapplicable to fathers of illegitimate
children."

															[ Footnote 3 ]

															It is, of course, true that "Congress may not confer
jurisdiction on Art. III federal courts to render advisory
opinions," Sierra Club v. Morton, 405 U.
S. 727 , 405 U. S. 732 n. 3 (1972). But Congress may enact statutes creating legal rights,
the invasion of which creates standing, even though no injury would
exist without the statute. See, e.g., Trafficante v.
Metropolitan Life Ins. Co., 409 U. S. 205 , 409 U. S. 212 (1972) (WHITE, J., concurring); Hardin v. Kentucky Utilities
Co., 390 U. S. 1 , 390 U. S. 6 (1968).

															[ Footnote 4 ]

															One of the leading commentators on standing has written,

															"Even though the past law of standing is so cluttered and
confused that almost every proposition has some exception, the
federal courts have consistently adhered to one major proposition
without exception: one who has no interest of his own at stake
always lacks standing."

															K. Davis, Administrative Law Text 428-429 (3d ed.1972).

															[ Footnote 5 ]

															We noted last Term that

															"[t]he requirement that a party seeking review must allege facts
showing that he is himself adversely affected does not insulate
executive action from judicial review, nor does it prevent any
public interests from being protected through the judicial
process." Sierra Club v. Morton, 405 U.S. at 405 U. S. 740 .
That observation is fully applicable here. As the District Court
stated,

															"the proper party to challenge the constitutionality of Article
602 would be a parent of a legitimate child who has been prosecuted
under the statute. Such a challenge would allege that, because the
parents of illegitimate children may not be prosecuted, the statute
unfairly discriminates against the parents of legitimate
children."

															335 F. Supp. at 806.

															[ Footnote 6 ]

															Since we dispose of this case on the basis of lack of standing,
we intimate no view as to the merits of appellant's claim. But
cf. Gomez v. Perez, 409 U. S. 535 (1973).

															MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS joins,
dissenting.

															Appellant Linda R.S. alleged that she is the mother of an
illegitimate child and that she is suing

															"on behalf of Page 410 U. S. 620 herself, her minor daughter, and on behalf of all other women
and minor children who have sought, are seeking, or in the future
will seek to obtain support for so-called illegitimate children
from said child's father."

															Appellant sought a declaratory judgment that Art. 602 is
unconstitutional and an injunction against its continued
enforcement against fathers of legitimate children only. Appellant
further sought an order requiring Richard D., the putative father,
"to pay a reasonable amount of money for the support of his
child."

															Obviously there are serious difficulties with appellant's
complaint insofar as it may be construed as seeking to require the
official appellees to prosecute Richard D. or others, or to obtain
what amounts to a federal child support order. But those
difficulties go to the question of what relief the court may
ultimately grant appellant. They do not affect her right to bring
this class action. The Court notes, as it must, that the father of
a legitimate child, if prosecuted under Art. 602, could properly
raise the statute's underinclusiveness as an affirmative defense. See McLaughlin v. Florida, 379 U.
S. 184 (1964); Railway Express Agency v. New
York, 336 U. S. 106 (1949). Presumably that same father would have standing to
affirmatively seek to enjoin enforcement of the statute against
him. Cf. Rinaldi v. Yeager, 384 U.
S. 305 (1966); see also Epperson v. Arkansas, 393 U. S. 97 (1968). The question then becomes simply: why should only an actual
or potential criminal defendant have a recognizable interest in
attacking this allegedly discriminatory statute and not appellant
and her class? They are not, after all, in the position of members
of the public at large who wish merely to force an enlargement of
state criminal laws. Cf. Sierra Club v. Morton, 405 U. S. 727 (1972). Appellant, her daughter, and the children born out of
wedlock whom Page 410 U. S. 621 she is attempting to represent have all allegedly been excluded
intentionally from the class of persons protected by a particular
criminal law. They do not get the protection of the laws that other
women and children get. Under Art. 602, they are rendered
nonpersons; a father may ignore them with full knowledge that he
will be subjected to no penal sanctions. The Court states that the
actual coercive effect of those sanctions on Richard D. or others
"can, at best, be termed only speculative." This is a very odd
statement. I had always thought our civilization has assumed that
the threat of penal sanctions had something more than a
"speculative" effect on a person's conduct. This Court has long
acted on that assumption in demanding that criminal laws be plainly
and explicitly worded so that people will know what they mean and
be in a position to conform their conduct to the mandates of law.
Certainly Texas does not share the Court's surprisingly novel view.
It assumes that criminal sanctions are useful in coercing fathers
to fulfill their support obligations to their legitimate
children.

															Unquestionably, Texas prosecutes fathers of legitimate children
on the complaint of the mother asserting nonsupport and refuses to
entertain like complaints from a mother of an illegitimate child. I
see no basis for saying that the latter mother has no standing to
demand that the discrimination be ended, one way or the other.

															If a State were to pass a law that made only the murder of a
white person a crime, I would think that Negroes as a class would
have sufficient interest to seek a declaration that that law
invidiously discriminated against them. Appellant and her class
have no less interest in challenging their exclusion from what
their own State perceives as being the beneficial protections that
flow from the existence and enforcement of a criminal child support
law. Page 410 U. S. 622 I would hold that appellant has standing to maintain this suit
and would, accordingly, reverse the judgment and remand the case
for further proceedings.

															MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins,
dissenting.

															By her complaint, appellant challenged Texas' exemption of
fathers of illegitimate children from both civil and criminal
liability. Our decision in Gomez v. Perez, 409 U.
S. 535 (1973), announced after oral argument in this
case, has important implications for the Texas law governing a
man's civil liability for the support of children he has fathered
illegitimately. Although appellant's challenge to the civil
statute, as the Court points out, is not procedurally before us, ante at 410 U. S. 615 n. 1, her brief makes it clear that her basic objection to the
Texas system concerns the absence of a duty of paternal support for
illegitimate children. The history of the case suggests that
appellant sought to utilize the criminal statute as a tool to
compel support payments for her child. The decision in Gomez may remove the need for appellant to rely on the
criminal law if she continues her quest for paternal
contribution.

															The standing issue now decided by the Court is, in my opinion, a
difficult one with constitutional overtones. I see no reason to
decide that question in the absence of a live, ongoing controversy. See Rice v. Sioux City Memorial Park Cemetery, 349 U. S. 70 (1955). Gomez now has beclouded the state precedents
relied upon by both parties in the District Court. Thus,
"intervening circumstances may well have altered the views of the
participants," and the necessity for resolving the particular
dispute may no longer be present. Protective Committee v.
Anderson, 390 U. S. 414 , 390 U. S.
453 -454 (1968). Under these circumstances, I would
remand the case to the District Court for clarification of the
status of the litigation.