514 F.Supp. 998 (D.Minn. 1981), Civ. 3-80-395, Mueller v. Allen

Docket Nº:Civ. 3-80-395
Citation:514 F.Supp. 998
Party Name:Mueller v. Allen
Case Date:May 13, 1981
Court:United States District Courts, 8th Circuit, District of Minnesota

Page 998

514 F.Supp. 998 (D.Minn. 1981)

Van D. MUELLER, Individually and on behalf of the taxpayers of the State of Minnesota; June Noyes, Individually and on behalf of the taxpayers of the State of Minnesota, Plaintiffs,


Clyde E. ALLEN, Jr., Commissioner of the Department of Revenue for the State of Minnesota, Defendant,


Dennis J. Berthiaume, Karen F. Berthiaume, Thomas W. Dzik, Mary J. Dzik, Edward F. Fujan, and Joleen A. Fujan,


Brenda B. Becker, Richard C. Hollingsworth, Marjorie Hollingsworth, Roger De Haan, and Dorothy De Haan, Each individually and on behalf of the taxpayers of the State of Minnesota, Intervenor-Defendants.

Civ. No. 3-80-395.

United States District Court, D. Minnesota, Third Division.

May 13, 1981

William I. Kampf, St. Paul, Minn., for plaintiffs.

William P. Marshall, Sp. Asst. Atty. Gen., St. Paul, Minn., for defendant Clyde E. Allen, Jr., Commissioner of the Minnesota Department of Revenue.

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Gordon W. Shumaker, Meir, Kennedy & Quinn, St. Paul, Minn., for intervenor-defendants Dennis J. and Karen F. Berthiaume, Thomas W. and Mary J. Dzik, and Edward F. and Joleen A. Fujan; Timothy P. Quinn, Meir, Kennedy & Quinn, St. Paul, Minn., on brief.

John R. Kenefick, Briggs & Morgan, St. Paul, Minn., for intervenor-defendants Brenda B. Becker, Richard C. and Marjorie Hollingsworth, and Roger and Dorothy De Haan.


RENNER, District Judge.

This action challenges the constitutionality of Minn.Stat. s 290.09(22) (1978), as violative of the First and Fourteenth Amendments to the Constitution of the United States. Plaintiffs assert that the challenged statute is a law advancing an establishment of religion and is in restraint of the free exercise of religion. Accordingly, plaintiffs seek a judgment by this Court invalidating the statute and an injunction against its enforcement by the State of Minnesota.

Initially, suit was brought by five individual plaintiffs on behalf of the taxpayers of the State of Minnesota. Pursuant to defendant Allen's motion, three of the plaintiffs were dismissed from the lawsuit. See Memorandum and Order, dated Oct. 14, 1980. Dismissal was based upon the doctrine of res judicata in that the three plaintiffs were found to have had an interest in M. C. L. U. v. Roemer, 452 F.Supp. 1316 (D.Minn.1978), an action that upheld the challenged statute against a constitutional challenge similar to the one now being advanced. This Court denied defendant's motion to dismiss the remaining plaintiffs, holding that Roemer was not a representative taxpayers' suit and, thus, did not bar the present taxpayers from bringing this action. The Court did not decide the stare decisis effect of Roemer since the factual record was, at that time, incomplete. At present, the factual basis of the case is not in dispute, although the parties differ as to inferences to be drawn and their legal consequences. Summary judgment is now appropriate.


Intervenor-defendants Berthiaumes, Dziks, and Fujans contend, as a preliminary matter, that the affidavits of James A. Lee and Phillip C. Miller, submitted by plaintiffs, should not properly be considered. The Lee affidavit purports to reveal the results of his examination of certain records of the Minnesota Department of Education relating to amounts of tuition paid by public school children. This information is offered to support plaintiffs' statistical argument.

Defendants object to Lee's affidavit on the ground that it is hearsay and barred by Fed.R.Civ.P. 56(e) and Fed.R.Evid. 901 since the affidavit fails to show that Lee possesses any personal knowledge of the matters contained in the affidavit. Defendants also argue that the affidavit is barred by Fed.R.Evid. 1002, in that the originals of the documents have not been produced. Since Lee's affidavit purports to summarize portions of certain state records, defendants contend that such secondary evidence may not be submitted. Finally, defendants challenge the affidavit for failing to include sworn or certified copies of the documents and records referred to, thus contravening Fed.R.Civ.P. 56(e).

Miller's affidavit is objected to on the grounds that it is hearsay; also that it has not been authenticated as required by Fed.R.Civ.P. 56(e) and Fed.R.Evid. 901. Defendants contend it is not possible to determine from the affidavit whether Miller is competent to authenticate the exhibit; that since Miller has no connection with the Minnesota Department of Revenue, he lacks personal knowledge of the information he seeks to convey.

There may well be merit to defendants' objections, but, for purposes of this opinion, they are not being considered.

The challenged statute, section 290.09(22), authorizes Minnesota taxpayers to claim income tax deductions for their dependents'

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tuition, textbook, and...

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