Freedom From Religion Found. Inc. v. Ayers

748 F.Supp.2d 982

FREEDOM FROM RELIGION FOUNDATION, INC., Annie Laurie Gaylor and Dan Barker, Plaintiffs,

v.Stephen AYERS, Acting Architect of the Capitol, Defendant.

No. 09–cv–439–wmc.

United States District Court, W.D. Wisconsin.

Sept. 29, 2010.

Richard L. Bolton, Boardman, Suhr, Curry & Field LLP, Madison, WI, for Plaintiffs.Bryan Dearinger, U.S. Department of Justice, Washington, DC, John W. Vaudreuil, U.S. Attorney's Office, Western District of Wisconsin, Madison, WI, for Defendant.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

Plaintiffs Freedom From Religion Foundation (“FFRF”) and two of its members initiated this lawsuit seeking to obtain a judgment declaring that the concurrent resolution of the U.S. House of Representatives directing defendant, in his official capacity as the Architect of the Capitol, to engrave the Pledge of Allegiance and the National Motto in the Capitol Visitor Center violates the Establishment Clause. Defendant has moved to dismiss plaintiffs' first amended complaint for several reasons, including a lack of standing. (Dkt.# 15.) Plaintiffs assert that they have standing to challenge the constitutionality of the resolution based solely on their status as federal taxpayers and, in the case of FFRF, as an organization representing members who are federal taxpayers.¹ (1st Am.Compl., dkt.# 13, ¶ 6.) For the reasons explained below, none of FFRF's members have taxpayer standing on their own, including the individual plaintiffs, with respect to the claim sought. Thus, to be adjudicated neither does FFRF. Accordingly, plaintiffs' complaint will be dismissed without prejudice for lack of standing.

OPINION

A. Analytical Framework For Determining Taxpayer Standing1. Supreme Court Precedent

“Article III of the Constitution limits judicial power of the United States to the resolution of ‘Cases' and ‘Controversies,’ and ‘Article III standing ... enforces the Constitution's case-or-controversy requirement.’ ” Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 593, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (alteration in original) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation omitted)). In Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), the Supreme Court established a general rule against taxpayer standing. This general rule stems from the logic that “the interest of a federal taxpayer in seeing that Treasury funds are spent in accordance with the Constitution does not give rise to the kind of redressable ‘personal injury’ required for Article III standing.” Hein, 551 U.S. at 599, 127 S.Ct. 2553.

Some 45 years after Frothingham was decided, the Supreme Court returned to the issue of taxpayer standing in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and carved out a “narrow exception” to that general rule. Hein, 551 U.S. at 593, 127 S.Ct. 2553. In Flast, the Supreme Court determined that a taxpayer could have standing if “there is a logical nexus between the [taxpayer] status asserted and the claim sought to be adjudicated.” 392 U.S. at 102, 88 S.Ct. 1942. The Flast Court articulated a two-part test to determine whether such standing exists in a given case:

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution.... Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8.

Id. at 102–03, 88 S.Ct. 1942. The Court went on to determine that the plaintiffs in Flast satisfied both parts of this test, because “[t]heir constitutional challenge [was] made to an exercise by Congress of its power under Art. I, § 8, to spend for the general welfare” and they alleged that “the challenged expenditures violate[d] the Establishment and Free Exercise Clauses of the First Amendment.” Id. at 103, 88 S.Ct. 1942.

In the Supreme Court's most recent opinion regarding the Flast exception, a plurality provided further guidance regarding application of the exception. Hein, 551 U.S. 587, 127 S.Ct. 2553. With respect to application of the first part of the test, the Hein Court “concluded that the taxpayer-plaintiffs had established the requisite ‘logical link between [their taxpayer] status and the type of legislative enactment attacked,’ ” because “the alleged Establishment Clause violation in Flast was funded by a specific congressional appropriation and was undertaken pursuant to an express congressional mandate.” Id. at 604, 127 S.Ct. 2553 (quoting Flast, 392 U.S. at 102, 88 S.Ct. 1942). The plurality explained that the taxpayer-plaintiffs in Hein did not fit under the Flast exception because:

[t]he link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. [Plaintiffs] do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action.

Hein, 551 U.S. at 605, 127 S.Ct. 2553.2. Seventh Circuit Precedent

Regardless of any uncertainties left by the lack of a clear majority decision in Hein, the Seventh Circuit has found that decision offers “significant guidance concerning the breadth of [the Supreme Court's] taxpayer standing jurisprudence” and that the plurality's explanation of the reasoning in Flast “clarified significantly the law of taxpayer standing for lower federal courts.” Hinrichs v. Speaker of the House of Representatives of Ind. Gen. Assembly, 506 F.3d 584, 590 and 599 (7th Cir.2007). More specifically, the Seventh Circuit reads Hein as (1) “narrowly confining [the Flast exception] to its facts” and (2) counseling lower courts that the exception “is not to be expanded at all.” Laskowski v. Spellings, 546 F.3d 822, 823 and 826 (7th Cir.2008) (emphasis in original) (citing Hein in general). Still, after Hein, the court emphasized that “taxpayers continue to have standing to sue for alleged Establishment Clause violations wrought by specific congressional appropriations under the Article I, Section 8 taxing and spending power.” Laskowski, 546 F.3d at 823.

In Hinrichs, decided four months after Hein, the Seventh Circuit toured the Supreme Court's taxpayer standing jurisprudence and gleaned “several guiding principles.” 506 F.3d at 598. One of those principles was that “only ‘expenditures made pursuant to an express congressional mandate and a specific congressional appropriation’ met the first nexus requirement; the plurality [in Hein ] rejected the plaintiffs' claim that any ‘expenditure of government funds in violation of the Establishment Clause’ would meet this requirement.” Id. (citing Hein, 551 U.S. at 603–04, 127 S.Ct. 2553 (internal quotation omitted)).

Applying this principle to a taxpayer challenge of the Indiana House of Representatives' practice of legislative prayer, the Seventh Circuit concluded that “the nexus requirements of Flast, as explained in Hein,” had not been met. Hinrichs, 506 F.3d at 598–99. The Seventh Circuit explained that the legislative prayer, which was provided for under Indiana House Rule 10.2, was “not mandated by statute.” Id. at 598. Rather, it was “a matter of House tradition.” Id. Additionally, the plaintiffs had failed to point “to any specific appropriation of funds by the legislature to implement the program.” Id. (emphasis added).

In other words, “[t]he appropriations, which cover[ed] the incidental costs of the program, ‘did not expressly authorize, direct, or even mention, the expenditures.’ ” Id. at 599 (quoting Hein, 551 U.S. at 605, 127 S.Ct. 2553). In addressing the dissent's assertion, “that the requisite connection between the allegedly unconstitutional practice and the expenditure of funds is established by the initial adoption of House Rule 10.2 in conjunction with the House's later action in passing a budget, which included appropriations for the general operations of the House,” the majority in Hinrichs explained:

[w]e do not believe these two actions satisfy the requirement, set forth in Hein, that the challenged expenditures be “expressly authorized or mandated” by a “specific congressional enactment.” ... [T]here is no specific appropriation either for Rule 10.2 or for the Minister of the Day program. Absent such an appropriation, the necessary link between the taxpayer and the expenditure for the allegedly unconstitutional practice has not been established.

Hinrichs, 506 F.3d at 599 n. 8 (internal citation omitted).

In Freedom From Religion Foundation, Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir.2008), the Seventh Circuit directly addressed the FFRF's assertion that it had taxpayer standing to challenge specific aspects of the Department of Veterans Affairs' Chaplain Service administered by the Veteran's Health Administration. The Seventh Circuit determined that in light of the fact that the congressional program was supported by a general appropriation of $29 billion to...