NAHB Weighs In on Whether an Association Can Sue on Behalf of Its Members

In litigation involving whether a home builders association (HBA) has “standing” — meaning the right to challenge the conduct of another party in court — the Georgia Supreme Court on May 13 heard the case of Bryan County v. Home Builders Association of Savannah. 

The underlying matter involves Bryan County’s land use regulations; however, on appeal, the issue is whether the HBA has “standing” to bring the case. Courts require plaintiffs in lawsuits to have “standing” to ensure that the right person is bringing the challenge, and one of the requirements is that the plaintiff is injured by the defendant’s conduct. 

The HBA relied on the doctrine of “associational standing,” whereby an association is found to have standing based on the injuries to its members. Unfortunately, in a different case, the Georgia Supreme Court recently held that a party cannot have standing as a representative of someone else not before the court. As a result of this ruling, Bryan County brought its case to the Georgia Supreme Court arguing that the reasoning in the earlier case also should apply to associational standing.

NAHB and the Home Builders Association of Georgia filed an amicus brief in the Bryan County case as a part of a coalition of like-minded local and national associations. We explained that the idea of people or businesses joining together to be represented by a common organization has a history in the United States and Georgia, and is an efficient way to litigate. 

Unfortunately, the questioning from the Georgia Supreme Court seemed to favor Bryan County. The court appeared to be especially concerned that when an association brings a lawsuit as a representative of its members, the members are not bound by the court’s decision. In other words, if an association brings a challenge and loses in court, any member can file a new challenge against the same defendant the next day.