Doe v. Madison School Dist. No. 321

• Decision Date: 19 May 1999
• Docket Number: No. 97-35642,No. 321,321,97-35642
• Parties: 99 Cal. Daily Op. Serv. 3661 Jane DOE, on her own behalf and on behalf of her two children; Doe 1; Doe 2, Plaintiffs-Appellants, v. MADISON SCHOOL DISTRICT NO. 321; Board of Trustees of District; Jim Terry, Ann Hancock, John Bagley, Norman Erickson, and Gary J. Summers, members of the Board; and Dr. T.C. Mattocks, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 789

177 F.3d 789

99 Cal. Daily Op. Serv. 3661

Jane DOE, on her own behalf and on behalf of her two children; Doe 1; Doe 2, Plaintiffs-Appellants, v. MADISON SCHOOL DISTRICT NO. 321; Board of Trustees of District No. 321; Jim Terry, Ann Hancock, John Bagley Norman Erickson, and Gary J. Summers, members of the Board and Dr. T.C. Mattocks, Defendants-Appellees.

No. 97-35642.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1998.

Opinion Filed May 27, 1998.

Order Filed Jan. 22, 1999.

Rehearing En banc Granted and Opinion

and Order Withdrawn March 19, 1999.

Argued and Submitted April 22, 1999.

Filed May 19, 1999.

Stephen L. Pevar, American Civil Liberties Union, Denver, Colorado, for plaintiffs-appellants.

James B. Lynch, Lynch & Associates, PLLC, Boise, Idaho, for defendants-appellees.

Steven T. McFarland, Christian Legal Society, Annandale, Virginia; Marc D. Stern, American Jewish Congress, New York City; and Steven K. Green, Americans United for Separation of Church and State, for amici curiae.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV-90-00518-EJL.

Before: BROWNING, PREGERSON, REINHARDT, FERNANDEZ, RYMER, T.G. NELSON, THOMAS, SILVERMAN, GRABER, McKEOWN, and WARDLAW, Circuit Judges.

GRABER, Circuit Judge.

In this Establishment Clause challenge to a school district's policy of permitting student prayers at high school graduations, we hold that plaintiffs lack standing and that this case presents no live controversy. We therefore vacate the district court's decision and direct the district court to dismiss the complaint.

FACTUAL AND PROCEDURAL BACKGROUND

On November 16, 1990, two families filed this action alleging that defendants' longstanding policy of sponsoring prayers at their high school's graduation ceremonies violated the Establishment Clause of the First Amendment. See Doe v. Madison School Dist. No. 321, 7 F.Supp.2d 1110, 1113 (D.Idaho 1997). The complaint alleged that the children had standing to challenge the school's policy because they were students in defendants' school district. The complaint also alleged that their parents had standing to challenge the policy because they were taxpayers. The complaint requested declaratory and injunctive relief, but did not request damages. See id.

On March 18, 1991, the United States Supreme Court granted certiorari in a graduation prayer case. See Lee v. Weisman, 499 U.S. 918, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991). Plaintiffs asked the district court to stay this action pending the Supreme Court's decision. See Doe, 7 F.Supp.2d at 1113. The district court then administratively terminated the action without prejudice. See id.

On June 24, 1992, the Supreme Court decided Lee v. Weisman, 505 U.S. 577, 599, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), holding that the school's policy at issue there violated the Establishment Clause. In response to Lee, defendants adopted a new graduation policy, which states in part:

The school administration may invite graduating students to participate in high school graduation exercises according to academic class standing. A minimum of four (4) students may be asked to address the graduates at the graduation exercises....

... Students selected to participate may choose to deliver an address, poem, reading, song, musical presentation, prayer or any other pronouncement of their choosing.

(Emphasis added.)

After defendants adopted the new policy, plaintiffs sought to reopen the case. The district court granted the request on January 29, 1993. Four months later, the District Court of Idaho decided another graduation prayer case, see Harris v. Joint Sch. Dist. No. 241, 821 F.Supp. 638 (D.Idaho 1993), which was appealed to the Ninth Circuit, see Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir.1994). The district court again administratively terminated the present action without prejudice, pending the final resolution of the Harris appeal. See Doe, 7 F.Supp.2d at 1113.

On November 18, 1994, the Ninth Circuit decided Harris and held that the school's policy violated the Establishment Clause. See Harris, 41 F.3d at 457-58. However, the Supreme Court granted certiorari and ordered that the Ninth Circuit's decision be vacated as moot. See Joint Sch. Dist. No. 241 v. Harris, 515 U.S. 1154, 115 S.Ct. 2604, 132 L.Ed.2d 849 (1995).

Once again, plaintiffs moved to reopen this action. The district court granted their motion on April 9, 1996. See Doe, 7 F.Supp.2d at 1113. Because the case had been pending for nearly six years, the district court questioned whether the anonymous plaintiffs still had standing to pursue the action. During an in camera hearing, plaintiffs revealed that one of the children was still a student in defendants' school district and that one of the parents, Jane Doe, was still a taxpayer in the municipality. The court thus held that the student-plaintiff had standing; the court declined to rule on whether the taxpayer also had standing.

Thereafter, plaintiffs moved for summary judgment. See id. Plaintiffs argued that defendants' current graduation policy was facially invalid. See id. at 1112. The district court disagreed, holding that the Plaintiffs appealed. On May 27, 1998, a panel of this court affirmed the district court's decision. See Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832, 838 (9th Cir.1998). The panel suggested that Doe has standing as a taxpayer to challenge the school's policy. See id. at 834 n. 1. However, the panel did not rule on that issue, because it held that the student-plaintiff had standing. See id. Two days after the panel filed its decision, the student-plaintiff graduated from high school.

                policy satisfied the coercion test from Lee and the three-part test from Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).  See Doe, 7 F.Supp.2d at 1114-17.   The district court therefore denied plaintiffs' motion for summary judgment and sua sponte granted summary judgment for defendants.  See id. at 1118
                

On June 19, 1998, a Ninth Circuit judge sua sponte asked that we take this case en banc and that we vacate the panel's decision as moot. The panel ordered the parties to respond to the issues raised by the judge's request. In response, plaintiffs argued that Doe has standing as a taxpayer but moved the panel to vacate its decision should the panel conclude that plaintiffs no longer have standing. See Doe v. Madison School Dist. No. 321, No. 97-35642, 1999 WL 23125, at * 1 (9th Cir.Jan.22, 1999). In a published order, with one judge dissenting, the panel held that Doe has standing as a taxpayer and that the case presents a live controversy. See id. at * 1-2. Thereafter, a majority of active Ninth Circuit judges voted to rehear both panel decisions en banc, and the decisions were withdrawn. See Doe v. Madison Sch. Dist. No. 321, 165 F.3d 1265 (9th Cir.1999).

STANDING

Ordinarily, to prove an injury in fact under Article III of the Constitution, the plaintiff need only allege an injury that is "fairly traceable" to the wrongful conduct; the injury need not be financial. See Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636, 642 n. 2 (2d Cir.1988). However, "taxpayer standing," by its nature, requires an injury resulting from a government's expenditure of tax revenues. See Clay v. Fort Wayne Community Schools, 76 F.3d 873, 879 (7th Cir.1996) ("Municipal taxpayer status does not confer standing absent some allegation by the plaintiffs of an illegal use of tax revenues."); Fuller v. Volk, 351 F.2d 323, 327 (3d Cir.1965) ("[T]he taxpayer must be shown to be suing to prevent a misuse of public funds for this is the only interest which a federal court can protect in a taxpayer's suit."). Doe argues that she has alleged such an injury, even though she cannot identify municipal expenditures occasioned solely by the only activity that she challenges--the graduation prayer. We are not persuaded.

Plaintiff has challenged the use of municipal and state (rather than federal) tax revenues. That being so, Doremus v. Board of Educ. of Borough of Hawthorne, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), controls the requirements for taxpayer standing in this case. See Cammack v. Waihee, 932 F.2d 765, 770 (9th Cir.1991) ("[T]he Doremus requirement of a pocketbook injury applies to municipal taxpayer standing as well as to state taxpayer standing."); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1180 (9th Cir.1984) ("We are ... left with Doremus in its original form to guide us in questions of state taxpayer standing.").

In Doremus, a taxpayer challenged a state statute that provided for the reading of five verses from the Old Testament at the beginning of each school day. 342 U.S. at 430, 72 S.Ct. 394. The Supreme Court held that the taxpayer lacked standing, because the action was not a "good-faith pocketbook" challenge to the state statute. Id. at 434-35, 72 S.Ct. 394. To establish such a challenge, a plaintiff must demonstrate that the "activity is supported by any separate tax or paid for from any particular appropriation or that it adds any Applying the principles from Doremus, we have allowed taxpayers to challenge a state's declaration of Good Friday as a holiday, because "state and municipal tax revenues fund the paid holiday for government employees." Cammack, 932 F.2d at 771. Similarly, we have allowed taxpayers to challenge a state's disbursement of funds to a particular class of native inhabitants. See Hoohuli, 741 F.2d at 1180. In each of those cases, the plaintiffs alleged specific amounts of money that the government had spent solely on the unlawful activity.

                sum whatever to the cost of conducting the school."  Id. at 433, 72 S.Ct. 394.   The taxpayer could not satisfy that requirement, because it was " 'neither conceded nor proved that the brief interruption in the day's schooling caused by compliance with the statute adds

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