KOWALSKI, JUDGE, 26th JUDICIAL CIRCUIT COURT OF MICHIGAN, et al. v. TESMER et al.

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Syllabus
KOWALSKI, JUDGE, 26th JUDICIAL CIRCUIT COURT
OF MICHIGAN, et al. v. TESMER et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 03–407. Argued October 4, 2004—Decided December 13, 2004
After Michigan’s Constitution was amended to require that an appeal by
an accused pleading guilty or nolo contendere be by leave of the court,
several state judges denied appointed appellate counsel to indigents
pleading guilty, and the Michigan Legislature subsequently codified this
practice. The two attorney respondents joined three indigent criminal
defendants in filing suit in Federal District Court, alleging that the
practice denies indigents their federal due process and equal protection
rights. The District Court held the practice and statute unconstitu-
tional, but a Sixth Circuit panel reversed, holding that Younger v. Har-
ris, 401 U. S. 37, abstention barred the indigents’ suit, but that the attor-
neys had third-party standing to assert the indigents’ rights; and that
the statute was constitutional. On rehearing, the en banc Sixth Circuit
agreed on standing but found the statute unconstitutional.
Held: The attorneys lack third-party standing to assert the rights of Mich-
igan indigent defendants denied appellate counsel. The Court assumes
that the attorneys have satisfied Article III’s standing requirement and
thus addresses only whether they have standing to raise the rights of
others. In deciding whether to grant third-party standing, this Court
asks whether the party asserting the right has a “close” relationship
with the person who possesses the right, and whether there is a “hin-
drance” to the possessor’s ability to protect his own interests. Powers
v. Ohio, 499 U. S. 400, 411. The attorneys here claim standing based on
a future attorney-client relationship with as yet unascertained Michigan
criminal defendants who will request, but be denied, appellate counsel
under the statute. In two cases in which this Court found an attorney-
client relationship sufficient to confer third-party standing—Caplin &
Drysdale, Chartered v. United States, 491 U. S. 617, and Department of
Labor v. Triplett, 494 U. S. 715—the attorneys invoked known clients’
rights, not those of the hypothetical clients asserted here. And De-
partment of Labor v. Triplett—in which an attorney disciplined by his
state bar for accepting a fee prohibited by the Black Lung Benefits Act
of 1972 was held to have third-party standing to invoke claimants’ due
process rights to challenge the fee restriction that resulted in his pun-
ishment—falls within the class of cases allowing “standing to litigate

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126 KOWALSKI v. TESMER
Syllabus
the rights of third parties when enforc[ing] the challenged restriction
against the litigant would result indirectly in the violation of third par-
ties’ rights,” Warth v. Seldin, 422 U. S. 490, 510. The attorneys here
do not have a “close relationship” with their alleged “clients”; indeed,
they have no relationship at all. Nor have they demonstrated any “hin-
drance” to the indigents’ advancing their own constitutional rights
against the Michigan scheme. An indigent may seek leave to challenge
the denial of appellate counsel in state court and then may seek a writ
of certiorari in this Court; and both state and federal collateral review
exist beyond that. The attorneys’ hypothesis that, without counsel,
such avenues are effectively foreclosed was disproved in the Michigan
courts and this Court, where pro se indigents have pursued them. On
a more fundamental level, if an attorney is all that the indigents need
to perfect their challenge in state court and beyond, one wonders why
these attorneys did not attend state court and assist them. The fair
inference is that they did not want the state process to take its course,
but wanted a federal court to short circuit the State’s adjudication of
the constitutional question. Here, the indigents were appropriately dis-
missed under Younger because they had ample opportunities to raise
their constitutional challenge in their ongoing state proceedings. An
unwillingness to allow the Younger principle to be thus circumvented
is an additional reason to deny the attorneys third-party standing.
Pp. 128–134.
333 F. 3d 683, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Scalia, Kennedy, Thomas, and Breyer, JJ., joined. Thomas, J.,
filed a concurring opinion, post, p. 134. Ginsburg, J., filed a dissenting
opinion, in which Stevens and Souter, JJ., joined, post, p. 136.
Thomas L. Casey, Solicitor General of Michigan, argued
the cause for petitioners. With him on the briefs was
Michael A. Cox, Attorney General. Judy E. Bregman filed
briefs for respondent Kolenda in support of petitioners under
this Court’s Rule 12.6.
David A. Moran argued the cause for respondents Tesmer
et al. With him on the briefs were Michael J. Steinberg,
Kary L. Moss, Mark Granzotto, and Steven R. Shapiro.*
*Briefs of amici curiae urging reversal were filed for the State of Iowa
et al. by Thomas J. Miller, Attorney General of Iowa, Douglas R. Marek,
Deputy Attorney General, Darrel Mullins, Assistant Attorney General,

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127 Cite as: 543 U. S. 125 (2004)
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
This case involves a constitutional challenge to Michigan’s
procedure for appointing appellate counsel for indigent de-
fendants who plead guilty. The only challengers before us
are two attorneys who seek to invoke the rights of hypotheti-
cal indigents to challenge the procedure. We hold that the
attorneys lack standing and therefore do not reach the ques-
tion of the procedure’s constitutionality.
In 1994, Michigan amended its Constitution to provide that
“an appeal by an accused who pleads guilty or nolo conten-
dere shall be by leave of the court” and not as of right.
Mich. Const., Art. I, § 20. Following this amendment, sev-
eral Michigan state judges began to deny appointed appellate
counsel to indigents who pleaded guilty, and the Michigan
Legislature subsequently codified this practice.1 See Mich.
Comp. Laws Ann. § 770.3a (West 2000). Under the statute,
and Gene C. Schaerr, and by the Attorneys General for their respective
States as follows: Troy King of Alabama, Charles J. Crist of Florida, Mark
J. Bennett of Hawaii, Lisa Madigan of Illinois, Steve Carter of Indiana,
Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, J. Jo-
seph Curran, Jr., of Maryland, Mike McGrath of Montana, Jon Bruning
of Nebraska, Brian Sandoval of Nevada, Jim Petro of Ohio, W. A. Drew
Edmondson of Oklahoma, Hardy Myers of Oregon, Henry D. McMaster
of South Carolina, Paul G. Summers of Tennessee, Greg Abbott of Texas,
Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, and Christine O.
Gregoire of Washington; and for Wayne County, Michigan, by Timothy
A. Baughman.
Briefs of amici curiae urging affirmance were filed for the American
Bar Association by Dennis W. Archer, Seth P. Waxman, and Paul R. Q.
Wolfson; for the National Association of Criminal Defense Lawyers et al.
by Anthony J. Franze, Sheila B. Scheuerman, Steven D. Benjamin, and
Paul M. Rashkind; and for the National Legal Aid and Defender Associa-
tion by Elliot H. Scherker and Karen M. Gottlieb.
1 The statute limits appellate counsel for defendants who “plea[d] guilty,
guilty but mentally ill, or nolo contendere.” Mich. Comp. Laws Ann.
§ 770.3a(1) (West 2000). For simplicity, we shall refer only to defendants
who plead guilty, although our analysis applies to all three situations.

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128 KOWALSKI v. TESMER
Opinion of the Court
which was scheduled to go into effect on April 1, 2000, ap-
pointment of appellate counsel for indigents who plead guilty
is prohibited, with certain mandatory and permissive excep-
tions. Ibid.
A challenge to the Michigan practice was filed in the
United States District Court for the Eastern District of
Michigan. The named plaintiffs included the two attorney
respondents and three indigents who were denied appellate
counsel after pleading guilty. Pursuant to Rev. Stat. § 1979,
42 U. S. C. § 1983, they alleged that the Michigan practice and
statute denied indigents their federal constitutional rights to
due process and equal protection. They sought declaratory
and injunctive relief against the practice and the statute.
A day before the statute was to take effect, the District
Court issued an order holding the practice and statute uncon-
stitutional. Tesmer v. Granholm, 114 F. Supp. 2d 603 (2000).
It ultimately issued an injunction that bound all Michigan
state judges, requiring them not to deny appellate counsel to
any indigent who pleaded guilty. 114 F. Supp. 2d 622 (2000).
A panel of the Court of Appeals for the Sixth Circuit re-
versed. Tesmer v. Granholm, 295 F. 3d 536 (2002). The
panel held that Younger v. Harris, 401 U. S. 37 (1971), ab-
stention barred the suit by the indigents but that the attor-
neys had third-party standing to assert the rights of indi-
gents. It then held that the statute was constitutional.
The Court of Appeals granted rehearing en banc and re-
versed. Tesmer v. Granholm, 333 F. 3d 683 (2003). The en
banc majority agreed with the panel on standing but found
that the statute was unconstitutional. Separate dissents
were filed, challenging the application of third-party stand-
ing and the holding that the statute was unconstitutional.
We granted certiorari. 540 U. S. 1148 (2004).
The doctrine of standing asks whether a litigant is entitled
to have a federal court resolve his grievance. This inquiry
involves “both constitutional limitations on federal-court ju-
risdiction and prudential limitations on its exercise.” Warth

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Opinion of the Court
v. Seldin, 422 U. S. 490, 498 (1975). In this case, we do not
focus on the constitutional minimum of standing, which flows
from Article III’s case-or-controversy requirement. See
Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).
Instead, we shall assume the attorneys have satisfied Article
III and address the alternative threshold question whether
they have standing to raise the rights of others. See Ruhr-
gas AG v. Marathon Oil Co., 526 U. S. 574, 585 (1999).2
We have adhered to the rule that a party “generally must
assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third par-
ties.” Warth v. Seldin, supra, at 499. This rule assumes
that the party with the right has the appropriate incentive
to challenge (or not challenge) governmental action and to
do so with the necessary zeal and appropriate presentation.
See 422 U. S., at 500. It represents a “healthy concern that
if the claim is brought by someone other than one at whom
the constitutional protection is aimed,” Secretary of State of
Md. v. Joseph H. Munson Co., 467 U. S. 947, 955, n. 5 (1984),
the courts might be “called upon to decide abstract questions
of wide public significance even though other governmental
institutions may be more competent to address the questions
and even though judicial intervention may be unnecessary to
protect individual rights,” Warth v. Seldin, supra, at 500.
We have not treated this rule as absolute, however, recog-
nizing that there may be circumstances where it is necessary
2 To satisfy Article III, a party must demonstrate an “injury in fact”; a
causal connection between the injury and the conduct of which the party
complains; and that it is “likely” a favorable decision will provide redress.
Lujan v. Defenders of Wildlife, 504 U. S., at 560–561 (internal quotation
marks omitted). In this case, the attorneys alleged “injury in fact” flows
from their contention that the Michigan system “has reduced the number
of cases in which they could be appointed and paid as assigned appellate
counsel.” App. 16a, ¶ 35 (Complaint). This harm, they allege, would be
remedied by declaratory and injunctive relief aimed at the system.
Again, we assume, without deciding, that these allegations are sufficient.
See Ruhrgas AG v. Marathon Oil Co., 526 U. S., at 585.

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130 KOWALSKI v. TESMER
Opinion of the Court
to grant a third party standing to assert the rights of an-
other. But we have limited this exception by requiring that
a party seeking third-party standing make two additional
showings. First, we have asked whether the party assert-
ing the right has a “close” relationship with the person who
possesses the right. Powers v. Ohio, 499 U. S. 400, 411
(1991). Second, we have considered whether there is a “hin-
drance” to the possessor’s ability to protect his own inter-
ests. Ibid.
We have been quite forgiving with these criteria in certain
circumstances. “Within the context of the First Amend-
ment,” for example, “the Court has enunciated other con-
cerns that justify a lessening of prudential limitations on
standing.” Secretary of State of Md. v. Joseph H. Munson
Co., supra, at 956. And “[i]n several cases, this Court has
allowed standing to litigate the rights of third parties when
enforcement of the challenged restriction against the liti-
gant would result indirectly in the violation of third parties’
rights.” Warth v. Seldin, supra, at 510 (emphasis added)
(citing Doe v. Bolton, 410 U. S. 179 (1973); Griswold v. Con-
necticut, 381 U. S. 479 (1965); Barrows v. Jackson, 346 U. S.
249 (1953)); see Craig v. Boren, 429 U. S. 190 (1976). Beyond
these examples—none of which is implicated here—we have
not looked favorably upon third-party standing. See, e. g.,
Conn v. Gabbert, 526 U. S. 286, 292–293 (1999) (rejecting
an attorney’s attempt to adjudicate the rights of a client).
With this in mind, we turn to apply our “close relationship”
and “hindrance” criteria to the facts before us.
The attorneys in this case invoke the attorney-client re-
lationship to demonstrate the requisite closeness. Specifi-
cally, they rely on a future attorney-client relationship with
as yet unascertained Michigan criminal defendants “who will
request, but be denied, the appointment of appellate counsel,
based on the operation” of the statute. App. 17a, ¶ 37 (Com-
plaint). In two cases, we have recognized an attorney-client
relationship as suffiicient to confer third-party standing.

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Opinion of the Court
See Caplin & Drysdale, Chartered v. United States, 491 U. S.
617 (1989); Department of Labor v. Triplett, 494 U. S. 715
(1990). In Caplin & Drysdale, Chartered v. United States,
supra, we granted a law firm third-party standing to chal-
lenge a drug forfeiture statute by invoking the rights of an
existing client. Id., at 624, n. 3. This existing attorney-
client relationship is, of course, quite distinct from the hypo-
thetical attorney-client relationship posited here.
In Department of Labor v. Triplett, supra, we dealt with
the Black Lung Benefits Act of 1972, which prohibited attor-
neys from accepting fees for representing claimants, unless
such fees were approved by the appropriate agency or court.
30 U. S. C. § 932(a) (1982 ed., Supp. V). An attorney, George
Triplett, violated the Act and its implementing regulations
by agreeing to represent claimants for 25% of any award
obtained and then collecting those fees without the required
approval. The state bar disciplined Triplett, and we allowed
Triplett third-party standing to invoke the due process
rights of the claimants to challenge the fee restriction that
resulted in his punishment. 494 U. S., at 720–721. Triplett
is different from this case on two levels. First, Triplett falls
within that class of cases where we have “allowed standing
to litigate the rights of third parties when enforcement of
the challenged restriction against the litigant would result
indirectly in the violation of third parties’ rights.” Warth v.
Seldin, supra, at 510 (emphasis added). Second, and similar
to Caplin & Drysdale, Triplett involved the representation
of known claimants. The attorneys before us do not have a
“close relationship” with their alleged “clients”; indeed, they
have no relationship at all.
We next consider whether the attorneys have demon-
strated that there is a “hindrance” to the indigents’ advanc-
ing their own constitutional rights against the Michigan
scheme. Powers v. Ohio, supra, at 411. It is uncontested
that an indigent denied appellate counsel has open avenues
to argue that denial deprives him of his constitutional rights.

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Opinion of the Court
He may seek leave to challenge that denial in the Michigan
Court of Appeals and, if denied, seek leave in the Michigan
Supreme Court. See Mich. Comp. Laws Ann. § 770.3 (West
Supp. 2004). He then may seek a writ of certiorari in this
Court. See 28 U. S. C. § 1257(a). Beyond that, there exists
both state and federal collateral review. See Mich. Rule
Crim. Proc. 6.500 (2004); 28 U. S. C. § 2254.
The attorneys argue that, without counsel, these avenues
are effectively foreclosed to indigents. They claim that un-
sophisticated, pro se criminal defendants could not satisfy
the necessary procedural requirements, and, if they did, they
would be unable to coherently advance the substance of their
constitutional claim.
That hypothesis, however, was disproved in the Michigan
courts, see, e. g., People v. Jackson, 463 Mich. 949, 620 N. W.
2d 528 (2001) (pro se defendant sought leave to appeal denial
of appointment of appellate counsel to the Michigan Court of
Appeals and the Michigan Supreme Court); People v. Wil-
kins, 463 Mich. 949, 620 N. W. 2d 528 (2001) (same), and this
Court, see Pet. for Cert. in Halbert v. Michigan, O. T. 2004,
No. 03–10198 (pending request for writ of certiorari by a
pro se defendant challenging the denial of appellate counsel).
While we agree that an attorney would be valuable to a
criminal defendant challenging the constitutionality of the
scheme, we do not think that the lack of an attorney here
is the type of hindrance necessary to allow another to as-
sert the indigent defendants’ rights. See Powers v. Ohio,
supra, at 411.
We also are unpersuaded by the attorneys’ “hindrance”
argument on a more fundamental level. If an attorney is all
that the indigents need to perfect their challenge in state
court and beyond, one wonders why the attorneys asserting
this § 1983 action did not attend state court and assist them.
We inquired into this question at oral argument but did not
receive a satisfactory answer. See Tr. of Oral Arg. 28–29,
35–40. It is a fair inference that the attorneys and the three

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Opinion of the Court
indigent plaintiffs that filed this § 1983 action did not want
to allow the state process to take its course. Rather, they
wanted a federal court to short circuit the State’s adjudica-
tion of this constitutional question. That is precisely what
they got.
“[F]ederal and state courts are complementary systems
for administering justice in our Nation. Cooperation and
comity, not competition and conflict, are essential to the fed-
eral design.” Ruhrgas AG v. Marathon Oil Co., 526 U. S., at
586. The doctrine of Younger v. Harris, 401 U. S. 37 (1971),
reinforces our federal scheme by preventing a state criminal
defendant from asserting ancillary challenges to ongoing
state criminal procedures in federal court. Id., at 54–55.
In this case, the three indigent criminal defendants who
were originally plaintiffs in this § 1983 action were appropri-
ately dismissed under Younger. As the Court of Appeals
unanimously recognized, they had ongoing state criminal
proceedings and ample avenues to raise their constitutional
challenge in those proceedings.3 333 F. 3d, at 690–691.
There also was no extraordinary circumstance requiring fed-
eral intervention. Ibid. An unwillingness to allow the
Younger principle to be thus circumvented is an additional
reason to deny the attorneys third-party standing.4
3 The Court of Appeals suggested, however, that adverse Michigan prec-
edent on the merits of the constitutional claim made any resort to the
state courts futile and thus justified the attorneys’ sally into federal court.
333 F. 3d, at 695. But forum shopping of this kind is not a basis for
third-party standing. See, e. g., Caplin & Drysdale, Chartered v. United
States, 491 U. S. 617, 624, n. 3 (1989).
4 The mischief that resulted from allowing the attorneys to circumvent
Younger is telling. By the time the Michigan Supreme Court had a
chance to rule on even the prestatutory practice, see People v. Bulger, 462
Mich. 495, 614 N. W. 2d 103 (July 18, 2000) (holding the practice constitu-
tional), the Federal District Court had ruled the prestatutory practice and
the impending statute itself unconstitutional. 114 F. Supp. 2d 603, 622
(ED Mich., Mar. 31, 2000). It also had issued an injunction against all
Michigan judges, instructing them to appoint counsel (regardless of what
their own Supreme Court said). 114 F. Supp. 2d 622 (ED Mich., June 30,

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134 KOWALSKI v. TESMER
Thomas, J., concurring
In sum, we hold that the attorneys do not have third-party
standing to assert the rights of Michigan indigent defendants
denied appellate counsel. We agree with the dissenting
opinion in the Court of Appeals that “it would be a short
step from the . . . grant of third-party standing in this case
to a holding that lawyers generally have third-party stand-
ing to bring in court the claims of future unascertained cli-
ents.” 5 333 F. 3d, at 709 (Rogers, J., concurring in part and
dissenting in part).
The judgment of the Court of Appeals is therefore re-
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Thomas, concurring.
That this case is even remotely close demonstrates that
our third-party standing cases have gone far astray. We
have granted third-party standing in a number of cases to
litigants whose relationships with the directly affected indi-
viduals were at best remote. We have held, for instance,
that beer vendors have standing to raise the rights of their
prospective young male customers, see Craig v. Boren, 429
U. S. 190, 192–197 (1976); that criminal defendants have
standing to raise the rights of jurors excluded from service,
2000). Thus, the Federal District Court effectively trumped the Michigan
Supreme Court’s ruling; caused unnecessary conflict between the federal
and state courts; and caused confusion among Michigan judges attempting
to implement these conflicting commands.
5 As Judge Rogers explained, the lawyer would have to make a credible
claim that a challenged regulation would affect his income to satisfy Arti-
cle III; after that, however, the possibilities would be endless. 333 F. 3d,
at 709. A medical malpractice attorney could assert an abstract, general-
ized challenge to tort reform statutes by asserting the rights of some
hypothetical malpractice victim (or victims) who might sue. Id., at 710.
An attorney specializing in Social Security cases could challenge imple-
mentation of a new regulation by asserting the rights of some hypothetical
claimant (or claimants). Ibid. And so on.

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Thomas, J., concurring
see Powers v. Ohio, 499 U. S. 400, 410–416 (1991); that sellers
of mail-order contraceptives have standing to assert the
rights of potential customers, see Carey v. Population Serv-
ices Int’l, 431 U. S. 678, 682–684 (1977); that distributors of
contraceptives to unmarried persons have standing to liti-
gate the rights of the potential recipients, Eisenstadt v.
Baird, 405 U. S. 438, 443–446 (1972); and that white sellers
of land have standing to litigate the constitutional rights of
potential black purchasers, see Barrows v. Jackson, 346 U. S.
249, 254–258 (1953). I agree with the Court that “[t]he at-
torneys before us do not have a ‘close relationship’ with their
alleged ‘clients’; indeed, they have no relationship at all.”
Ante, at 131. The Court of Appeals understandably could
have thought otherwise, given how generously our prece-
dents have awarded third-party standing.
It is doubtful whether a party who has no personal consti-
tutional right at stake in a case should ever be allowed to
litigate the constitutional rights of others. Before Truax v.
Raich, 239 U. S. 33, 38–39 (1915), and Pierce v. Society of
Sisters, 268 U. S. 510, 535–536 (1925), this Court adhered to
the rule that “[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 defeat-
ing it.” Clark v. Kansas City, 176 U. S. 114, 118 (1900) (in-
ternal quotation marks omitted).* This made sense. Liti-
gants who have no personal right at stake may have very
different interests from the individuals whose rights they
are raising. Moreover, absent a personal right, a litigant
has no cause of action (or defense), and thus no right to relief.
It may be too late in the day to return to this traditional
view. But even assuming it makes sense to grant litigants
*See also Tyler v. Judges of Court of Registration, 179 U. S. 405, 406–
407 (1900); Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 220
(1903); Owings v. Norwood’s Lessee, 5 Cranch 344, 348 (1809) (Marshall,
C. J.); In re Wellington, 33 Mass. 87, 96 (1834) (Shaw, C. J.); Barrows v.
Jackson, 346 U. S. 249, 264–266, and n. 6 (1953) (Vinson, C. J., dissenting).

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136 KOWALSKI v. TESMER
Ginsburg, J., dissenting
third-party standing in at least some cases, it is more doubt-
ful still whether third-party standing should sweep as
broadly as our cases have held that it does.
Because the Court’s opinion is a reasonable application of
our precedents, I join it in full.
Justice Ginsburg, with whom Justice Stevens and
Justice Souter join, dissenting.
Plaintiffs-respondents Arthur M. Fitzgerald and Michael
D. Vogler are Michigan attorneys who have routinely re-
ceived appointments to represent defendants in state-court
criminal appeals, including appeals from plea-based convic-
tions. They assert third-party standing to challenge a state
law limiting an indigent’s right to counsel: As codified in
Mich. Comp. Laws Ann. § 770.3a(1) (West 2000), the chal-
lenged law prescribes that most indigents
“who plea[d] guilty, guilty but mentally ill, or nolo con-
tendere shall not have appellate counsel appointed for
review of the defendant’s conviction or sentence.”
The attorneys before us emphasize that indigent defendants
generally are unable to navigate the appellate process pro
se. In view of that reality, the attorneys brought this action
under 42 U. S. C. § 1983, to advance indigent defendants’ con-
stitutional right to counsel’s aid in pursuing appeals from
plea-based convictions.
“Ordinarily,” attorneys Fitzgerald and Vogler acknowl-
edge, “one may not claim standing . . . to vindicate the consti-
tutional rights of [a] third party.” Barrows v. Jackson, 346
U. S. 249, 255 (1953). The Court has recognized exceptions
to the general rule, however, when certain circumstances
combine: (1) “The litigant [has] suffered an ‘injury in fact,’ . . .
giving him or her a ‘sufficiently concrete interest’ in the out-
come of the issue in dispute”; (2) “the litigant [has] a close
relation to the third party”; and (3) “there [exists] some hin-
drance to the third party’s ability to protect his or her own
interests.” Powers v. Ohio, 499 U. S. 400, 411 (1991) (quot-

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137 Cite as: 543 U. S. 125 (2004)
Ginsburg, J., dissenting
ing Singleton v. Wulff, 428 U. S. 106, 112 (1976)). The first
requirement is of a different order than the second and third,
for whether a litigant meets the constitutional prescription
of injury in fact determines whether his suit is “a case or
controversy subject to a federal court’s Art. III jurisdiction.”
Ibid. By contrast, the close relation and hindrance criteria
are “prudential considerations,” Secretary of State of Md. v.
Joseph H. Munson Co., 467 U. S. 947, 955 (1984), “judge made
rule[s] . . . fashion[ed] for our own governance,” id., at 972
(Stevens, J., concurring). Our precedent leaves scant room
for doubt that attorneys Fitzgerald and Vogler have shown
both injury in fact, and the requisite close relation to indi-
gent defendants who seek the assistance of counsel to appeal
from plea-based convictions. I conclude, as well, that those
attorneys have demonstrated a formidable hindrance to the
indigents’ ability to proceed without the aid of counsel.
As to injury in fact, attorneys Fitzgerald and Vogler al-
leged in their complaint that Mich. Comp. Laws Ann. § 770.3a
would cause them direct economic loss because it will “re-
duc[e] the number of cases in which they could be appointed
and paid as assigned appellate counsel.” App. 16a. This al-
legation is hardly debatable. The Michigan system for as-
signing appellate attorneys to indigent defendants operates
on a strict rotation. With fewer cases to be assigned under
the new statute, the pace of the rotation would slow, and
Fitzgerald and Vogler, who are on the rosters for assign-
ment, would earn less for representation of indigent appel-
lants than they earned in years prior to the cutback on
state-funded appeals.1
1 True, in several cases in which third-party standing was upheld on the
basis of economic injury, the law in question proscribed conduct in which
the challenger sought to engage. See, e. g., Craig v. Boren, 429 U. S. 190,
192–194 (1976) (beer vendor prohibited from selling 3.2% beer to males
aged 18–21). Our decisions confirm, however, that a plaintiff ’s exposure
to an enforcement action is not essential to an injury-in-fact determina-
tion. See Singleton v. Wulff, 428 U. S. 106 (1976); Pierce v. Society of
Sisters, 268 U. S. 510 (1925).

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138 KOWALSKI v. TESMER
Ginsburg, J., dissenting
In Singleton, 428 U. S. 106, two physicians challenged
state restrictions imposed on funding for abortions. Eight
Members of this Court determined that the physicians had
adequately alleged concrete injury: “If the physicians pre-
vail[ed] in their suit . . . they [would] then receive
payment . . . [and t]he State (and Federal Government)
[would] be out of pocket by the amount of the payments.”
Id., at 113; see id., at 122–123 (Powell, J., concurring as to
injury in fact). Inescapably, the same reasoning applies to
attorneys Fitzgerald and Vogler. They have alleged their
past, state-paid representation of indigent defendants in ap-
peals from plea-based convictions, and their aim to continue
such representation in the future. As in Singleton, they
will suffer injury “concrete and particularized[,] . . . actual
or imminent, not conjectural or hypothetical,” Friends of
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U. S. 167, 180 (2000), if Michigan’s statute holds sway.
See generally R. Fallon, D. Meltzer, & D. Shapiro, Hart and
Wechsler’s The Federal Courts and the Federal System 177–
178, and n. 5 (5th ed. 2003).
Nor, under our precedent, should attorneys Fitzgerald and
Vogler encounter a “close relation” shoal. Our prior deci-
sions do not warrant the distinction between an “existing”
relationship and a “hypothetical” relationship that the Court
advances today. Ante, at 131. See, e. g., Carey v. Popula-
tion Services Int’l, 431 U. S. 678, 683 (1977) (corporate dis-
tributor of contraceptives could challenge state law limiting
sale of its products, “not only in its own right but also on
behalf of its potential customers” (emphasis added)); Gris-
wold v. Connecticut, 381 U. S. 479, 481 (1965) (noting that in
Pierce v. Society of Sisters, 268 U. S. 510 (1925), “the owners
of private schools were entitled to assert the rights of poten-
tial pupils and their parents,” and in Barrows, “a white
defendant . . . was allowed to raise . . . the rights of prospec-
tive Negro purchasers” (emphases added)).

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139 Cite as: 543 U. S. 125 (2004)
Ginsburg, J., dissenting
Without suggesting that the timing of a relationship is key,
the Court’s decisions have focused on the character of the
relationship between the litigant and the rightholder. See
Munson, 467 U. S., at 973 (Stevens, J., concurring) (propri-
ety of third-party standing depends on “the nature of the
relationship”). Singleton, for example, acknowledged the
significant bond between physician and patient. See 428
U. S., at 117 (plurality opinion) (“[T]he physician is uniquely
qualified to litigate the constitutionality of the State’s inter-
ference with, or discrimination against, [the abortion] deci-
sion.”).2 Similarly, this Court has twice recognized, in the
third-party standing context, that the attorney-client rela-
tionship is of “special consequence.” See Caplin & Drys-
dale, Chartered v. United States, 491 U. S. 617, 623–624, n. 3
(1989); Department of Labor v. Triplett, 494 U. S. 715, 720
(1990).3 Moreover, the Court has found an adequate “rela-
tion” between litigants alleging third-party standing and
those whose rights they seek to assert when nothing more
than a buyer-seller connection was at stake. See Carey, 431
U. S., at 683; Craig v. Boren, 429 U. S. 190, 195 (1976).
Thus, as I see it, this case turns on the last of the three
third-party standing inquiries, here, the existence of an im-
pediment to the indigent defendants’ effective assertion of
their own rights through litigation. I note first that the
Court has approached this requirement with a degree of elas-
ticity. See id., at 216 (Burger, C. J., dissenting) (males be-
tween the ages of 18 and 21 who sought to purchase 3.2%
beer faced no serious obstacle to asserting their own rights).
The hindrance faced by a rightholder need only be “genuine,”
2 There can be little doubt that the plurality in Singleton would have
recognized third-party standing even if the physicians had just opened
their clinic at the time they commenced suit.
3 Conn v. Gabbert, 526 U. S. 286 (1999), see ante, at 130, is not instruc-
tive. There, the plaintiff-attorney failed to assert his own injury in fact,
526 U. S., at 289–292, and thus, a fortiori, could not assert third-party
standing, id., at 292–293.

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140 KOWALSKI v. TESMER
Ginsburg, J., dissenting
not “insurmountable.” Singleton, 428 U. S., at 116–117 (plu-
rality opinion); see also Munson, 467 U. S., at 956 (“Where
practical obstacles prevent a party from asserting rights on
behalf of itself . . . the Court has recognized [third-party
standing].”). Even assuming a requirement with more
starch than the Court has insisted upon in prior decisions,
this case satisfies the “impediment” test.
To determine whether the indigent defendants are im-
peded from asserting their own rights, one must recognize
the incapacities under which these defendants labor and the
complexity of the issues their cases may entail. According
to the Department of Justice, approximately eight out of ten
state felony defendants use court-appointed lawyers. U. S.
Dept. of Justice, Bureau of Justice Statistics, C. Harlow, De-
fense Counsel in Criminal Cases 1, 5 (Nov. 2000), available
at http://www.ojp.usdoj.gov/ bjs/pub/pdf/dccc.pdf (all Internet
materials as visited Dec. 8, 2004, and available in Clerk of
Court’s case file). Approximately 70% of indigent defend-
ants represented by appointed counsel plead guilty, and 70%
of those convicted are incarcerated. Id., at 6 (Tables 10–11).
It is likely that many of these indigent defendants, in com-
mon with 68% of the state prison population, did not com-
plete high school, U. S. Dept. of Justice, Bureau of Justice
Statistics, C. Harlow, Education and Correctional Popula-
tions 1 (Jan. 2003), available at http://www.ojp.usdoj.gov/ bjs/
pub/pdf/ecp.pdf, and many lack the most basic literacy skills,
U. S. Dept. of Ed., National Center for Education Statistics,
Literacy Behind Prison Walls xviii, 10, 17 (Oct. 1994) (NCES
1994–102), available at http://nces.ed.gov/pubs94/94102.pdf.
A Department of Education study found that about seven
out of ten inmates fall in the lowest two out of five levels of
literacy—marked by an inability to do such basic tasks as
write a brief letter to explain an error on a credit card bill,
use a bus schedule, or state in writing an argument made in
a lengthy newspaper article. Id., at 10, App. A (Interpret-
ing the Literacy Scales). An inmate so handicapped surely

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141 Cite as: 543 U. S. 125 (2004)
Ginsburg, J., dissenting
does not possess the skill necessary to pursue a competent
pro se appeal.
These indigent and poorly educated defendants face ap-
peals from guilty pleas often no less complex than other ap-
peals. An indigent defendant who pleads guilty may still
raise on appeal
“constitutional defects that are irrelevant to his factual
guilt, double jeopardy claims requiring no further fac-
tual record, jurisdictional defects, challenges to the suf-
ficiency of the evidence at the preliminary examination,
preserved entrapment claims, mental competency
claims, factual basis claims, claims that the state had no
right to proceed in the first place, including claims that
a defendant was charged under an inapplicable statute,
and claims of ineffective assistance of counsel.” People
v. Bulger, 462 Mich. 495, 561, 614 N. W. 2d 103, 133–134
(2000) (Cavanagh, J., dissenting) (citations omitted).
The indigent defendant pursuing his own appeal must also
navigate Michigan’s procedures for seeking leave to appeal
after sentencing on a guilty plea. Michigan’s stated Rule
requires a defendant to file an application for appeal within
21 days after entry of the judgment. Mich. Rule App. Proc.
7.205(A) (2004). The defendant must submit five copies of
the application “stating the date and nature of the judgment
or order appealed from; concisely reciting the appellant’s
allegations of error and the relief sought; [and] setting forth
a concise argument . . . in support of the appellant’s posi-
tion on each issue.” Rule 7.205(B)(1). The State Court
Administrative Office has furnished a three-page form
application accompanied by two pages of instructions for
defendants seeking leave to appeal after sentencing on a
guilty plea. But this form is unlikely to provide adequate
aid to an indigent and poorly educated defendant. The form
requires entry of such information as “charge code(s), MCL
citation/PACC Code,” asks the applicant to state the issues

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142 KOWALSKI v. TESMER
Ginsburg, J., dissenting
and facts relevant to the appeal, and then requires the ap-
plicant to “state the law that supports your position and ex-
plain how the law applies to the facts of your case.” Appli-
cation for Leave to Appeal After Sentencing on Plea of
Guilty or Nolo Contendere, http://courts.michigan.gov/scao/
courtforms/appeals/cc405.pdf (rev. Oct. 2003). This last task
would not be onerous for an applicant familiar with law
school examinations, but it is a tall order for a defendant of
marginal literacy.4
The Court, agreeing with Judge Rogers’ dissent from the
en banc Sixth Circuit decision, writes that recognizing
third-party standing here would allow lawyers generally to
assert standing to champion their potential clients’ rights.
Ante, at 134, n. 5. For example, a medical malpractice attor-
ney could challenge a tort reform statute on behalf of a fu-
ture client or a Social Security lawyer could challenge new
regulations. Ibid.; Tesmer v. Granholm, 333 F. 3d 683, 709–
710 (CA6 2003). In such cases, however, in marked contrast
to the instant case, the persons directly affected—malprac-
tice plaintiffs or benefits claimants—would face no unusual
obstacle in securing the aid of counsel to attack the disad-
vantageous statutory or regulatory change. There is no
cause, therefore, to allow an attorney to challenge the
benefit- or award-reducing provision in a suit brought in the
attorney’s name. The party whose interests the provision
directly impacts can instead mount the challenge with the
aid of counsel.
This case is “unusual because it is the deprivation of coun-
sel itself that prevents indigent defendants from protecting
4 The rare case of an unusually effective pro se defendant is the excep-
tion that proves the rule: The Court identifies three Michigan defendants
who pursued right-to-counsel claims pro se. Ante, at 132. The fact that
a handful of pro se defendants has brought claims shows neither that the
run-of-the-mine defendant can successfully navigate state procedures nor
that he can effectively represent himself on the merits.

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143 Cite as: 543 U. S. 125 (2004)
Ginsburg, J., dissenting
their right to counsel.” Brief for National Association of
Criminal Defense Lawyers et al. as Amici Curiae 17. The
challenged statute leaves indigent criminal defendants with-
out the aid needed to gain access to the appellate forum
and thus without a viable means to protect their rights.
Cf. Evitts v. Lucey, 469 U. S. 387, 393 (1985) (“[T]he services
of a lawyer will for virtually every layman be necessary to
present an appeal in a form suitable for appellate consider-
ation on the merits.”).
The Court is “unpersuaded by the attorneys’ ‘hindrance’
argument,” ante, at 132, in the main, because it sees a clear
path for Fitzgerald and Vogler: They could have “attend[ed]
state court and assist[ed] [indigent defendants,]” ibid. Had
the attorneys taken this course, hundreds, perhaps thou-
sands, of criminal defendants would have gone uncounseled
while the attorneys afforded assistance to a few individuals.
In order to protect the rights of all indigent defendants, the
attorneys sought prospective classwide relief to prevent the
statute from taking effect. See Tr. of Oral Arg. 41 (“The
problem was we had to file this litigation before the statute
went into effect because once the statute went into effect,
thousands of Michigan indigents would be denied the right
to counsel every year and would suffer probably irreparable
damage to their right to appeal.”).
This case implicates none of the concerns underlying the
Court’s prudential criteria. The general prohibition against
third-party standing “ ‘frees the Court not only from unnec-
essary pronouncement on constitutional issues, but also from
premature interpretations of statutes in areas where their
constitutional application might be cloudy,’ and it assures the
court that the issues before it will be concrete and sharply
presented.” Munson, 467 U. S., at 955 (quoting United
States v. Raines, 362 U. S. 17, 22 (1960); citation omitted).
Attorneys Fitzgerald and Vogler have “properly . . . frame[d]
the issues and present[ed] them with the necessary adversar-

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144 KOWALSKI v. TESMER
Ginsburg, J., dissenting
ial zeal,” 467 U. S., at 956, and whether the indigent defend-
ants whose rights they assert are entitled to counsel is a
question fully ripe for resolution.5
The Court concludes that the principle of Younger v. Har-
ris, 401 U. S. 37 (1971), “is an additional reason to deny the
attorneys third-party standing.” Ante, at 133. Whether
a federal court should abstain under Younger is, of course,
distinct from whether a party has standing to sue. See
401 U. S., at 41–42 (dismissing three appellees on stand-
ing grounds before addressing the abstention question).
Younger “[has] little force in the absence of a pending state
proceeding.” Steffel v. Thompson, 415 U. S. 452, 462 (1974)
(quoting Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498,
509 (1972)). “When no state criminal proceeding is pending
at the time the federal complaint is filed, federal intervention
does not result in duplicative legal proceedings or disruption
of the state criminal justice system; nor can federal interven-
tion, in that circumstance, be interpreted as reflecting nega-
tively upon the state court’s ability to enforce constitutional
principles.” 415 U. S., at 462; accord Doran v. Salem Inn,
Inc., 422 U. S. 922, 930 (1975). Attorneys Fitzgerald and
Vogler filed this suit before the Michigan statute took effect.
At that time, no state criminal proceeding governed by the
statute existed with which this suit could interfere.6
In sum, this case presents an unusual if not unique case of
defendants facing near-insurmountable practical obstacles to
protecting their rights in the state forum: First, it is the
deprivation of counsel itself that prevents indigent defend-
5 Considerations of economy—the parties have fully briefed and argued
this case—also favor reaching the merits.
6 I agree with the Court that Younger would force the indigent defend-
ants to pursue their claims in state court, as Younger has a stricter imped-
iment requirement than the third-party standing doctrine. Younger v.
Harris, 401 U. S. 37, 53 (1971) (requiring “extraordinary circumstances”
before allowing federal intervention).

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145 Cite as: 543 U. S. 125 (2004)
Ginsburg, J., dissenting
ants, many of whom are likely to be unsophisticated and
poorly educated, from protecting their rights; second, the
substantive issues that such defendants could raise in an ap-
peal are myriad and often complicated; and third, the proce-
dural requirements for an appeal after a guilty plea are not
altogether indigent-user friendly. The exposure of impecu-
nious defendants to these access-to-appeal blockages in state
court makes the need for this suit all the more compelling.
* * *
For the reasons stated, I would affirm the en banc Sixth
Circuit decision that attorneys Fitzgerald and Vogler have
standing to maintain the instant action and would proceed
to the merits of the controversy.