Arizona Civil Liberties Union v. Dunham, CIV 98-2073-PHX-ROS.

• Citation: 112 F.Supp.2d 927
• Decision Date: 28 August 2000
• Docket Number: No. CIV 98-2073-PHX-ROS.,CIV 98-2073-PHX-ROS.
• Parties: ARIZONA CIVIL LIBERTIES UNION, et al., Plaintiffs, v. Cynthia L. DUNHAM, Mayor of the Town of Gilbert, Arizona, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona

Page 927

112 F.Supp.2d 927

ARIZONA CIVIL LIBERTIES UNION, et al., Plaintiffs, v. Cynthia L. DUNHAM, Mayor of the Town of Gilbert, Arizona, et al., Defendants.

No. CIV 98-2073-PHX-ROS.

United States District Court, D. Arizona.

August 28, 2000.

Timothy Andrew Nelson, Brown & Bain PA, Phoenix, AZ, for Arizona Civil Liberties Union, Ellis Sklar, Ellen Sklar, William Gregory.

Gary Stuart McCaleb, Scottsdale, AZ, Kevin H. Theriot, Lawrenceville, GA, for Cynthia Dunham.

Jay M Martinez, Martinez & Curtis PC, Phoenix, AZ, for Town of Gilbert.

ORDER

SILVER, District Judge.

By order issued September 30, 1999, the Court granted Motions to Dismiss filed by the Defendants, the Town of Gilbert, Arizona, and the Town's Mayor, Cynthia Dunham, on the ground that the Plaintiffs, the Arizona Civil Liberties Union (AzCLU) and three individual residents of the Town of Gilbert, had not established standing to maintain the action. See Arizona Civil Liberties Union v. Dunham, ("AzCLU"), 88 F.Supp.2d 1066 (D.Ariz.1999). Plaintiffs had alleged that Defendants violated the Establishment Clause by issuing a Proclamation declaring the week of November 23-30, 1997 as "Bible Week in Gilbert, Arizona" and urging fellow citizens to read the Bible. (Amended Compl. at ¶¶ 11-13). Pending before the Court is Plaintiffs' Motion requesting new trial, amendment of judgment, or reconsideration ("Motion for Reconsideration").

Legal Standard

The Court has discretion to reconsider its order granting final judgment. Sheet Metal Workers' Int'l Ass'n Local Union No. 359 v. Madison Indus., Inc., of Arizona, 84 F.3d 1186, 1192 (9th Cir.1996); School Dist. No. 1J. Multnomah County v. ACandS, Inc., ("Multnomah County"), 5 F.3d 1255, 1262 (9th Cir.1993), cert. denied, 512 U.S. 1236, 114 S.Ct. 2742, 129 L.Ed.2d 861 (1994). Reconsideration is warranted to consider newly discovered evidence or an intervening change in controlling law, as well as to correct clear error. Multnomah County, 5 F.3d at 1263. Other highly unusual circumstances also may warrant reconsideration. Id.; see also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999). In addition, a judgment may be vacated upon a showing of "(1) mistake, inadvertence, surprise, or excusable neglect" or "(6) any other reason justifying relief." Fed.R.Civ.P. 60(b). Plaintiffs must show "extraordinary circumstances" to obtain relief under Rule 60(b)(6). Id. (quotation omitted); Multnomah County, 5 F.3d at 1263.

Discussion

I. Is Reconsideration Warranted?

In the course of addressing Plaintiffs' arguments, the Court again examined all of the pleadings having any bearing on Defendants' motions to dismiss, as well as the Court's prior order. In the prior order, the Court correctly determined that residency, though insufficient to confer standing alone, contributes to the existence of standing. AzCLU, 88 F.Supp.2d at 1077. As the Court noted: "[L]ocal practices may create a larger psychological wound than the practices of a locale through which a party is merely passing." Id. (citing Washegesic v. Bloomingdale Public Schools, 33 F.3d 679, 683 (6th Cir. 1994), cert. denied, 514 U.S. 1095, 115 S.Ct. 1822, 131 L.Ed.2d 744 (1995)). However, the Court did not consider whether the psychological injuries of Plaintiffs, all of whom are Gilbert residents, differed from those experienced by the plaintiffs in Valley Forge Christian College v. Americans United for Separation of Church and State, ("Valley Forge"), 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), who were Maryland and Virginia residents challenging a federal agency's transfer of land to a Christian college in Pennsylvania. Rather, the Court considered the very real psychological injuries the Plaintiffs suffered as a result of the Bible Week Proclamation to be the same as those of the Valley Forge plaintiffs: the "`psychological consequence ... produced by observation of conduct with which [they] disagree[].'" See AzCLU, 88 F.Supp.2d at 1072 (quoting Valley Forge, 454 U.S. at 485, 102 S.Ct. 752). The Supreme Court found such injury insufficient for standing purposes. See id. (quoting Valley Forge, 454 U.S. at 485, 102 S.Ct. 752).

"A district judge can vacate a judgment under Rule 60(b) `after mature judgment and re-reading the records' and `on its own motion.'" Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 351-52 (9th Cir.1999) (internal quotation omitted); see also Fiduccia v. U.S. Dept. of Justice, 185 F.3d 1035, 1046 (9th Cir.1999). Because residency or other proximity to challenged conduct affects the injury portion of standing analysis, this Court must determine whether Plaintiffs' residency in Gilbert, and their resultant proximity to the Bible Week Proclamation, impacts the analysis of injury in the action at bar. Thus, "after mature judgment and re-reading the records," Kingvision Pay-Per-View Ltd., 168 F.3d at 351-52, the Court concludes that reconsideration of its analysis of standing is warranted.

Reconsideration is merited even though this Court engaged in a careful analysis of Plaintiffs' standing in its prior order due to both the significance and the difficulty of the issue. In analyzing standing, the Court was mindful that standing and other Article III doctrines are a limitation on judicial power. See Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). These doctrines "limit the federal judicial power `to those disputes which confine federal courts to a role consistent with a system of separated powers.'" Valley Forge, 454 U.S. at 472, 102 S.Ct. 752. Nonetheless, the Court also has an obligation to consider the disputes of parties who establish the standing requirements of injury, causation, and redressability. See id. at 472, 102 S.Ct. 752.

The Supreme Court has acknowledged the difficulties inherent in the analysis of standing: "`We need not mince words when we say that the concept of `Art. III standing' has not been defined with complete consistency in all of the various cases decided by this Court which have discussed it.'" Valley Forge, 454 U.S. at 471, 102 S.Ct. 752. "[Both the constitutional and prudential components] of standing doctrine incorporate[ ] concepts concededly not susceptible of precise definition." Allen, 468 U.S. at 751, 104 S.Ct. 3315. As noted in this Court's prior order, several circuit courts also have noted that the injury necessary to establish standing in Establishment Clause cases is a difficult and elusive concept. See Suhre v. Haywood County, 131 F.3d 1083, 1085 (4th Cir.1997); Murray v. City of Austin, Texas, 947 F.2d 147, 151 (5th Cir.1991), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992); Saladin v. City of Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987). The concept is even more elusive in the action at bar because it involves issues of first impression. Reconsideration enables this Court to further its ultimate aim of applying the law in this difficult area in a manner consistent with the dictates of the Supreme Court and the Ninth Circuit.

II. Do Plaintiffs Have Standing?

In Valley Forge, the Supreme Court expressly articulated the importance of direct contact with challenged government conduct, for standing purposes, by distinguishing its prior decision, School Dist. of Abington Township, Penn. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Unlike the remotely-located plaintiffs challenging the sale of government property in Valley Forge, the plaintiffs in Schempp had standing to challenge the constitutionality of a daily school prayer because they were either "subjected to unwelcome religious exercises" or "forced to assume special burdens to avoid them." Valley Forge, 454 U.S. at 486 n. 22, 102 S.Ct. 752 (discussing Schempp, 374 U.S. 203, 83 S.Ct. 1560) (emphasis added).

In their Response to the Motion to Dismiss, Plaintiffs quote the Supreme Court's explanation of the harm suffered by individuals when their government endorses a particular religion: "`it sends a message to nonadherents that they are outsiders, not full members of the political community. ...'" (Pls.' Resp. at 21 (quoting County of Allegheny v. A.C.L.U., 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472, (1989) (quoting Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor concurring)))). The Supreme Court did not set forth this discussion of harm to resolve issues of standing. Nonetheless, the Supreme Court's description is consistent with the conclusion that harm may differ based on proximity. The harm that occurs when public officials send a message to residents of the community about their outsider status is far greater than the harm that occurs when someone residing elsewhere hears of the message. The message of outsider status directly affects local residents but affects others only on an ideological basis.

In one of the first, and most widely-cited, circuit court decisions addressing standing in the Establishment Clause context after Valley Forge, the Eleventh Circuit confirms the significance of direct contact with the challenged activity. See ACLU v. Rabun County Chamber of Commerce, Inc., ("Rabun County"), 698 F.2d 1098, 1108 (11th Cir.1983). In Rabun County, the plaintiffs challenged the display of a large cross in a Georgia state park. In discussing what constitutes sufficient injury, the Eleventh Circuit quoted the excerpt from Valley Forge set forth above — standing exists if the claimants were "`subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them.'" Rabun County, 698 F.2d at 1108 (quoting Valley Forge, 454 U.S. at 487 n. 22, 102 S.Ct. 752 (discussing Schempp, 374 U.S. 203, 83 S.Ct. 1560)). Thereafter, the Eleventh Circuit explained that one of the plaintiffs had standing due to his direct contact with the display:

[B]ecause the cross is clearly visible from the porch of his summer cabin at the religious camp which he directs as well as...