U.S. Catholic Conference, In re, 1486

Citation824 F.2d 156
Decision Date04 June 1987
Docket NumberNo. 1486,1486
Parties, 7 Fed.R.Serv.3d 1369 In re UNITED STATES CATHOLIC CONFERENCE and National Conference of Catholic Bishops, Appellants. ABORTION RIGHTS MOBILIZATION, INC., Lawrence Lader, Margaret O. Strahl, M.D., Helen W. Edey, M.D., Ruth P. Smith, National Womens Health Network, Inc., Long Island National Organization for Women-Nassau, Inc., Rabbi Israel Margolies, Reverend Bea Blair, Rabbi Balfour Brickner, Reverend Robert Hare, Reverend Marvin G. Lutz, Womens Center for Reproductive Health, Jennie Rose Lifrieri, Eileen Walsh, Patricia Sullivan Luciano, Marcella Michalski, Chris Niebrzydowski, Judith A. Seibel, Karen Decrow and Susan Sherer, Plaintiffs- Appellees, v. James A. BAKER, III, Secretary of the Treasury, and Roscoe L. Egger, Jr., Commissioner of Internal Revenue, Defendants. Docket 86-6092.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Wilfred R. Caron, Gen. Counsel, U.S. Catholic Conference, Washington, D.C. (Charles H. Wilson, Richard S. Hoffman, Williams & Connolly, Mark E. Chopko, Asst. Gen. Counsel, U.S. Catholic Conference, Washington, D.C., Joseph B. Valentine, Hughes Hubbard & Reed, New York City, on brief), for appellants.

Marshall Beil, New York City, for plaintiffs-appellees.

Gerald T. Ford, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Jane E. Booth and Steven E. Obus, Asst. U.S. Attys., New York City, on brief), for defendants.

Professor Edward McGlynn Gaffney, Jr., Los Angeles, Cal., and Michael J. Woodruff, Samuel E. Ericson, Kimberlee Wood Colby, Merrifield, Va., filed a brief on behalf of National Council of Churches of Christ in the U.S.A., et al., as amici curiae.

Before NEWMAN, KEARSE and CARDAMONE, Circuit Judges. *

JON O. NEWMAN, Circuit Judge:

This appeal from an adjudication of civil contempt presents the interesting and apparently novel question whether a non-party witness has standing on appeal to challenge a district court's subject matter jurisdiction over the lawsuit in which the witness has been compelled to furnish evidence. The issue arises on an appeal by the United States Catholic Conference ("USCC") and the National Conference of Catholic Bishops ("NCCB") (collectively "the witnesses") from orders of the District Court for the Southern District of New York (Robert L. Carter, Judge) entered May 8 and 9, 1986. The witnesses were held in civil contempt and subjected to coercive daily fines for their refusal to comply with discovery orders entered in a lawsuit brought to challenge the federal tax-exempt status of the Roman Catholic Church in the United States. The lawsuit has been brought by various organizations and individuals who contend, among other things, that they are injured by the Government's permitting the Catholic Church to retain its tax-exempt status while engaging in political activities that the plaintiffs contend violate the limitations imposed by section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. Sec. 501(c)(3) (1982). The witnesses challenge the contempt adjudication solely on the ground that the plaintiffs lack standing to bring the lawsuit. Without making any definitive ruling on the standing of the plaintiffs, we conclude that the witnesses have standing to question only whether the District Court has a colorable basis for exercising subject matter jurisdiction, that such colorable basis exists, and that in the absence of any challenge to the discovery orders that implicate personal rights of the witnesses, the orders adjudicating them in civil contempt should be affirmed.

I.

The plaintiffs are nine organizations and twenty individuals, all of whom act in one or more capacities to support the constitutional right of women to choose an abortion. Three of the organizations are active in advocating the right to an abortion. Six of the organizations are health clinics that perform abortions. The individuals include persons identified as officers of or contributors to the advocacy organizations, a physician who performs abortions, clergymen whose religious tenets hold it permissible for women to choose an abortion, and Roman Catholics who contribute to the Roman Catholic Church but oppose the Church's position on abortion. All of the individual plaintiffs are voters and taxpayers. The complaint named as defendants the Secretary of the Treasury and the Commissioner of Internal Revenue ("the federal defendants"), and the USCC and the NCCB, alleged in the complaint to be "the two principal national organizations of the Roman Catholic Church in the United States."

The complaint recites the language of section 501(c)(3) of the Internal Revenue Code, defining a tax-exempt organization as one

which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.

26 U.S.C. Sec. 501(c)(3). The complaint alleges that this prohibition on political activity by tax-exempt organizations is constitutionally required with respect to religious organizations by the First Amendment. The plaintiffs then allege various activities undertaken by the Roman Catholic Church that are claimed to constitute "interven[tion] in political campaigns to further [the Church's] religious belief that no one should be able to obtain an abortion in the United States." These activities, undertaken without loss of the Church's tax-exempt status, are alleged to have injured the plaintiffs in various ways. The primary injury allegedly sustained is that the plaintiffs are disadvantaged in the political arena with respect to political activity on behalf of pro-abortion or pro-choice candidates because the plaintiffs abide by the political action prohibition of section 501(c)(3) while the Church allegedly does not. Some of the plaintiffs also allege that they are injured as taxpayers on the theory that a tax exemption for a religious organization engaging in political activity constitutes a government expenditure to establish a religion and injured as voters on the theory that the toleration of political activity by the Church while plaintiffs limit their activity in observance of section 501(c)(3) has diminished plaintiffs' right to vote.

The complaint alleges five causes of action. The first claims that the activities of the Roman Catholic Church violate section 501(c)(3) and the First Amendment. The remaining four allege that the failure of the federal defendants to revoke the tax-exempt status of the Catholic Church violate their duties under the Code and various provisions of the Constitution.

All four of the original defendants moved to dismiss on various grounds, including the plaintiffs' lack of standing and failure to state a claim. On July 19, 1982, the District Court granted the motion by the USCC and the NCCB to dismiss Count One for failure to state a claim. Abortion Rights Mobilization, Inc. v. Regan, 544 F.Supp. 471, 487 (S.D.N.Y.1982). Since this was the only count alleging a cause of action against the two Catholic organizations, that ruling removed them from the case as defendants. The Court denied the motion by the federal defendants, concluding that, except for five health service clinics, all other plaintiffs had standing to sue. The District Judge also denied a motion by the federal defendants to certify his ruling denying their motion to dismiss for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b). Abortion Rights Mobilization, Inc. v. Regan, 522 F.Supp. 364 (S.D.N.Y.1982).

In early 1983, both the plaintiffs and the federal defendants served deposition subpoenas duces tecum on the USCC and the NCCB. The plaintiffs' subpoenas, which were received by the witnesses' counsel on March 2, 1983, have given rise to the pending appeal. These subpoenas seek various documents concerning allegedly political activities engaged in by the USCC and the NCCB, including records of financial support of political candidates and organizations. On April 4, 1984, the District Court denied a motion to quash the plaintiffs' subpoenas. No production of documents occurred, the witnesses apparently anticipating that their obligation to comply might be removed by an anticipated decision of the Supreme Court in litigation concerning the standing of parents of Negro children to challenge the tax-exempt status of racially segregated private schools. See Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Shortly after the Supreme Court ruled against standing in Allen v. Wright, supra, the federal defendants renewed their motion to dismiss. The District Court denied that motion on March 1, 1985, Abortion Rights Mobilization, Inc. v. Regan, 603 F.Supp. 970 (S.D.N.Y.1985), and subsequently denied certification for interlocutory appeal under section 1292(b).

On June 18, 1985, the plaintiffs sought enforcement of their subpoenas by moving for an order holding the witnesses in contempt. In subsequent pretrial conferences, the District Court questioned whether two paragraphs of the subpoenas, those calling for production of minutes of internal church meetings, might encounter First Amendment objections. In an order on September 4, 1985, Judge Carter ruled that documents called for by these two paragraphs need not be produced "at this time," and that these requests should be narrowed. At the same time he ordered the witnesses to comply "forthwith" with all other requests of the subpoenas and denied the plaintiffs' motion for contempt, without prejudice to renewal in the event of noncompliance. Thereafter, the plaintiffs withdrew the two questioned paragraphs of their subpoenas and also agreed with the witnesses to the entry of a confidentiality order.

Compliance was delayed pending the outcome of a mandamus petition to this Court, challenging Judge Carter's denial of the federal defendants' renewed motion to dismiss. This Court denied the mandamus petition on ...

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13 cases
  • U.S. Catholic Conference (USCC), In re, 1486
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 4, 1989
    ...Hence, we had no occasion to reach the underlying question now before us of plaintiffs' standing. See In re United States Catholic Conference, 824 F.2d 156 (2d Cir.1987). The Supreme Court reversed, holding that a non-party witness held in contempt had standing to challenge the district cou......
  • R.C. v. Nachman, Civil Action No. 88-D-1170-N.
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    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 16, 1997
    ...105, 108 (6th Cir.1995); Picco v. Global Marine Drilling Co., 900 F.2d 846, 850 n. 6 (5th Cir.1990); In re United States Catholic Conference v. Baker, 824 F.2d 156, 165 (2d Cir. 1987), rev'd, 487 U.S. 72, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988); Hoult v. Hoult, 57 F.3d 1, 6 (1st Cir.1995); Lu......
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    ...hold a hearing to determine if Howard had met his burden of establishing subject matter jurisdiction. See In re United States Catholic Conference, 824 F.2d 156, 162 (2d Cir. 1987), rev'd on other grounds, 487 U.S. 72, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988) (court may conduct whatever proceed......
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