675 F.2d 228 (8th Cir. 1982), 81-1077, Chambers v. Marsh

Docket Nº:81-1077, 81-1088.
Citation:675 F.2d 228
Party Name:Ernest CHAMBERS, Appellee, v. Frank MARSH, State Treasurer, and Robert E. Palmer, Chaplain and Officer of the Nebraska Unicameral, Appellants. Frank Lewis; John DeCamp; Robert L. Clark; Tom Fitzgerald; Steve Fowler; Howard A. Lamb; Richard D. Marvel; Loran Schmit and Jerome Warner, in their official capacity as members of the Executive Board of the
Case Date:April 14, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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675 F.2d 228 (8th Cir. 1982)

Ernest CHAMBERS, Appellee,

v.

Frank MARSH, State Treasurer, and Robert E. Palmer, Chaplain

and Officer of the Nebraska Unicameral, Appellants.

Frank Lewis; John DeCamp; Robert L. Clark; Tom Fitzgerald;

Steve Fowler; Howard A. Lamb; Richard D. Marvel; Loran

Schmit and Jerome Warner, in their official capacity as

members of the Executive Board of the Legislative Council of

the Nebraska Unicameral.

Ernest CHAMBERS, Appellant,

v.

Frank MARSH, State Treasurer, and Robert E. Palmer, Chaplain

and Officer of the Nebraska Unicameral; Frank Lewis; John

DeCamp; Robert L. Clark; Tom Fitzgerald; Steve Fowler;

Howard A. Lamb; Richard D. Marvel; Loran Schmit and Jerome

Warner, in their official capacity as members of the

Executive Board of the Legislative Council of the Nebraska

Unicameral, Appellees.

Nos. 81-1077, 81-1088.

United States Court of Appeals, Eighth Circuit

April 14, 1982

Submitted Oct. 13, 1981.

Page 229

[Copyrighted Material Omitted]

Page 230

Stephen L. Pevar, American Civil Liberties Union, Denver, Colo., Herbert J. Friedman, Friedman Law Offices, Lincoln, Neb., for appellant/cross-appellee.

Paul L. Douglas, Atty. Gen. of Nebraska, Shanler D. Cronk, Asst. Atty. Gen., Lincoln, Neb., for appellees/cross-appellants.

Before HEANEY and STEPHENSON, Circuit Judges, and OLIVER, [*] Senior District Judge.

HEANEY, Circuit Judge.

The Nebraska legislature compensates a chaplain to open each legislative session with a prayer and, from time to time, collects and publishes the prayers in book form. Ernest Chambers, a Nebraska legislator, challenges this practice as violating the Establishment Clause of the First Amendment. The district court 1 enjoined some elements of the practice and upheld others, from which both Chambers and the defendants 2 appeal. We affirm in part and reverse in part, and remand the matter for further action consistent with this opinion.

The essential facts are undisputed. Rule 1, sections 2 and 21, of the Rules of the Nebraska Unicameral provide that a chaplain shall be selected by the legislature through its Executive Board and that such chaplain shall attend and "open with prayer" each day of each session. Reverend Robert Palmer, an ordained Presbyterian clergyman, has been selected and has served as the sole legislative chaplain for every session since 1965. Chaplain Palmer is compensated out of general tax revenues at the rate of $320 per month for each month the legislature is in session. In 1975, 1978 and 1979, several hundred copies of prayer books were prepared and distributed pursuant to express legislative authorization, at a total cost to taxpayers of several hundred dollars. The books are comprised of the daily prayers offered in those years and have been distributed to both members and nonmembers of the legislature.

Senator Chambers is a taxpayer and citizen of Nebraska, as well as a duly elected member of the legislature. In 1979, he commenced a section 1983 action challenging the foregoing practice in its entirety-the compensation of the chaplain, the printing of the prayer books and the offering of daily prayers-arguing that the practice violates the Establishment Clause. The district court distinguished these three elements, ruling that compensation of the

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chaplain and financing of the prayer books are unconstitutional, but that offering daily prayers is not.

A.

Before reaching the merits of this case, we must address the defendants' claims that the action is barred by the Tenth Amendment and by doctrines of standing, abstention and legislative immunity. We find no merit in any of these contentions.

The defendants argue that Nebraska's prayer practice is immune from federal judicial scrutiny under the Tenth Amendment, relying on National League of Cities v. Usury, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). National Cities, however, involved limits on congressional power to interfere, under the commerce clause, with certain essential state governmental functions. 3 Here, the issue is whether the First Amendment prohibits the Nebraska prayer practice, not whether Congress has interfered with state sovereignty. 4 Nothing in National Cities even hints that the Tenth Amendment immunizes state action from constitutional scrutiny. Indeed, if we adopted the defendants' position, the Tenth Amendment would shield state action from the entire Bill of Rights. We decline to do so.

The defendants next contend that Senator Chambers lacks standing, arguing that Chambers' taxpayer status is insufficient and that, under more general standing principles, he lacks any individualized injury that is different from the general grievance which any Nebraska citizen might assert. To support these contentions, the defendants attempt to separate the expenditure aspect of the chaplaincy from the prayers themselves, notwithstanding that defendants elsewhere argue the two elements cannot be treated separately. The defendants also attempt to construe the expenditure aspects as incidental administrative items that one lacks standing to challenge unless one is challenging a more general program of expenditures.

We think it is clear that Chambers has standing to assert his claim. The chaplain is selected and compensated for performing ostensibly one function-opening each legislative day with a prayer. Chambers challenges the formal legislative rule and established practice as a whole, not merely incidental elements of it. A taxpayer clearly has standing to challenge the expenditure foundation of such a practice because of the nexus between his taxpayer status and the Establishment Clause claim. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Murray v. Buchanan, --- F.2d ----, No. 81-1301 (D.C.Cir. Mar. 9, 1982) (taxpayer standing to challenge congressional chaplaincy); cf. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (standing not even disputed). Moreover, Chambers properly asserts particularized injury in that, as a member of the legislature, he squarely confronts the prayer program on a daily basis. 5 We thus have no difficulty finding standing to assert the present claim.

The defendants also contend that the abstention doctrine precludes federal courts from entertaining the present action. We cannot agree. Abstention ordinarily involves

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deferring federal judicial action when ongoing state proceedings might obviate...

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