691 F.2d 1029 (1st Cir. 1982), 81-1856, Donnelly v. Lynch

Docket Nº:81-1856.
Citation:691 F.2d 1029
Party Name:Daniel DONNELLY, et al., Plaintiffs-Appellees, v. Dennis M. LYNCH, et al., Defendants-Appellants.
Case Date:November 03, 1982
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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691 F.2d 1029 (1st Cir. 1982)

Daniel DONNELLY, et al., Plaintiffs-Appellees,

v.

Dennis M. LYNCH, et al., Defendants-Appellants.

No. 81-1856.

United States Court of Appeals, First Circuit

November 3, 1982

Argued April 7, 1981.

William F. McMahon, Providence, R.I., with whom Spencer W. Viner, City Sol., Pawtucket, R.I., was on brief, for defendants, appellants.

Sandra A. Blanding, Warwick, R.I., with whom Amato A. DeLuca, Warwick, R.I., was on brief, for plaintiffs, appellees.

Kenneth A. Sweder, Daniel D. Levenson, Gerald A. Berlin, Herbert H. Hershfang, Alexandra Moses, Alan Dershowitz, Leonard Zakim, Carl Axelrod, Susan Estrich, and Clayton Gillette, Boston, Mass., on brief for amici curiae, The Anti-Defamation League of B'nai B'rith and the American Jewish Congress New England Region.

Before, CAMPBELL and BOWNES, Circuit Judges FAIRCHILD, [*] Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

The question is whether the City of Pawtucket's ownership and use of a life-sized Christian nativity scene as part of a city-sponsored outdoor Christmas display situated on public property violates the Establishment Clause of the First Amendment. The district court held that it does and permanently enjoined the City from continuing the practice. We affirm that determination.

The relevant facts and the arguments of the parties have been carefully and exhaustively detailed in Chief Judge Pettine's

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opinion at the district court, 1 and thus need not be repeated here. We turn directly to those issues raised on appeal which we think merit discussion.

I. Standing

The district court opinion stated:

[T]his Court finds that the plaintiffs Kriebel, Goodwin and Frazier have standing to litigate this case. Even before Flast v. Cohen, 392 U.S. 83 [88 S.Ct. 1942, 20 L.Ed.2d 947] (1968), recognized the standing of federal taxpayers to challenge governmental expenditures on establishment clause grounds, municipal taxpayer standing had been permitted in this area. See e.g. McCollum v. Board of Education, 333 U.S. 203, 206 [68 S.Ct. 461, 462, 92 L.Ed. 649] (1948), citing Coleman v. Miller, 307 U.S. 433 [59 S.Ct. 972, 83 L.Ed. 1385] (1938). Cf. Frothingham v. Mellon, 262 U.S. 447, 486-87 [43 S.Ct. 597, 601, 67 L.Ed. 1078] (1923) (contrasting stake of federal taxpayer with that of municipal taxpayer for standing purposes). Thus, there is little doubt that Kriebel, Goodwin and Frazier, who pay taxes to Pawtucket, can challenge the City's maintenance of the creche. 2

525 F.Supp. at 1162.

Defendants argue on appeal that the district court's analysis of standing is undercut by the Supreme Court's subsequent decision in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). They claim that Valley Forge, severely limiting federal and state taxpayer standing, leaves no room for a distinction between federal and state taxpaying status on one hand and municipal taxpaying status on the other. We do not agree.

At issue in Valley Forge was the transfer of a former military hospital, valued in excess of a half million dollars, to petitioner, a church-related college. The Department of Health, Education, and Welfare, pursuant to the terms of a statute enacted by Congress under the Property Clause of the Constitution, had declared the facility surplus real property and then permitted petitioner to acquire the property without making any financial payment because of a 100% "public benefit allowance" computed under the statute. Respondents, an organization dedicated to the separation of church and state, and several of its employees, brought suit to challenge the conveyance as violative of the Establishment Clause. The Supreme Court held that respondents lacked standing, within the meaning of Article III, as either taxpayers or citizens.

In concluding that respondents were without standing as federal taxpayers, the Court distinguished its earlier decision in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). As an exception to the Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), general rule disfavoring federal taxpayer standing, Flast had held that a federal taxpayer will be a proper party to allege the unconstitutionality of an exercise of congressional power under the Taxing and Spending Clause where the enactment exceeds specific constitutional limitations on the taxing and spending power. Flast thus permitted taxpayer plaintiffs to challenge certain expenditures of federal funds under the Elementary and Secondary Education Act of 1965 as violative of the Establishment Clause. Relying on United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), and Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), the Court in Valley Forge declined to interpret Flast as creating a broad right for taxpayers to challenge all federal bestowals of largesse for religious purposes.

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454 U.S. at 464 n.20, 102 S.Ct. at 765 n. 20. Rather the Court embraced a narrower reading of Flast and found the facts before it distinguishable inasmuch as they involved not congressional action under the Taxing and Spending Clause, but action of an executive department pursuant to legislation adopted under the Property Clause. 3 The Court concluded that respondents lacked standing, in effect holding that the alleged deprivation of the constitutional use of their tax dollars failed to state a cognizable personal injury different from the harm purportedly sustained by taxpayers generally.

In addition, the Court held that the respondents in Valley Forge could not claim standing simply by reason of their citizen status. It reasoned that the assertion of a personal constitutional right to a government that does not establish religion is insufficient to satisfy the requirements of Article III, at least in the absence of identifiable personal injury suffered as a consequence of the alleged constitutional error. The Court expressly noted that the psychological consequence presumably produced by observation of conduct with which one disagrees is not sufficient to confer standing even though the disagreement may be phrased in Constitutional terms and the litigant's interest in the Constitutional principle intense. Taking care not to retreat from earlier holdings that standing may be predicated on noneconomic injury, the Court distinguished various cases, including Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Schempp had invalidated certain laws which required Bible reading in public schools. The Court in Valley Forge cautioned that Schempp cannot be construed to mean that any person asserting an Establishment Clause claim possesses a "spiritual stake" sufficient to confer standing. "The plaintiffs in Schempp had standing, not because their complaint rested on the Establishment Clause ... but because impressionable schoolchildren were subjected to unwelcome religious services or forced to assume special burdens to avoid them." 454 U.S. at 464 n.22, 102 S.Ct. at 766 n. 22. The Court found that the respondents in Valley Forge failed to allege a comparable injury, or indeed any "injury of any kind, economic or otherwise, sufficient to confer standing." 454 U.S. at 464, 102 S.Ct. at 766 (emphasis in original).

The Valley Forge decision, and particularly its reading of Flast, may be fairly understood as a restrictive view of the scope of federal taxpayer standing. So too, certain approving references in the opinion to Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), a taxpayer suit challenging a state Bible reading statute which was dismissed for lack of standing, might arguably be interpreted as meaning that similar limitations on standing apply to state taxpayers. See, e.g., 454 U.S. at 464, 102 S.Ct. at 764. We find no indication, however, that the majority in Valley Forge intended to overrule the long line of cases establishing that municipal taxpayers, in contrast to federal or state taxpayers, have standing to sue to challenge allegedly unconstitutional use of their tax dollars.

Nearly sixty years ago, the distinction was made clear in Frothingham v. Mellon, supra, the seminal decision on federal taxpayer standing. Justice Sutherland wrote for a unanimous Court:

The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. It is upheld by a large number of state cases and is the rule of this Court. Crampton v. Zabriskie, 101 U.S. 601, 609 [25 L.Ed. 1070].... But the relation of a taxpayer of the United States to the Federal Government is very different. His interest in the moneys of the Treasury--partly realized from taxation and partly from other sources--is shared with millions of others; is comparatively minute and indeterminable; and

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the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.

262 U.S. at 486-87, 43 S.Ct. at 601 (emphasis added). Later Supreme Court decisions, including those cited in the above quotation from the district court opinion, have expressed or impliedly acknowledged the persistence of this dichotomy. Most recently, Justice Brennan's dissent in Valley Forge, which was joined by Justices Marshall and Blackmun, and relevant portions of which were endorsed by Justice Stevens' separate dissent, repeatedly noted the vitality of the municipal taxpayer standing rule. Though the majority opinion took issue with various aspects of the Brennan dissent, see, e.g., 454 U.S. at 464 n.20, 102 S.Ct. at 765 n. 20, it made no challenge to the dissent's...

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