Bell v. City of Kellogg

• Decision Date: 05 December 1990
• Docket Number: Nos. 89-35685,89-35686 and 90-35368,s. 89-35685
• Citation: 922 F.2d 1418
• Parties: Guy Stuart BELL, on behalf of himself and all other taxpayers, citizens and electors of the City of Kellogg, Plaintiff-Appellant, and William H. Lamphere, on behalf of himself and all other state and federal taxpayers, Plaintiff-Appellant, v. CITY OF KELLOGG; United States Department of Agriculture Division of Forest Service; Bunker Limited Partnership; Charles L.A. Cox, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1418

922 F.2d 1418

Guy Stuart BELL, on behalf of himself and all other taxpayers, citizens and electors of the City of Kellogg, Plaintiff-Appellant and William H. Lamphere, on behalf of himself and all other state and federal taxpayers, Plaintiff-Appellant, v. CITY OF KELLOGG; United States Department of Agriculture Division of Forest Service; Bunker Limited Partnership; Charles L.A. Cox, et al Defendants-Appellees.

Nos. 89-35685, 89-35686 and 90-35368.

United States Court of Appeals Ninth Circuit.

Submitted Dec. 5, 1990 ^*.

Decided Jan. 8, 1991.

Guy Stuart Bell, Kellogg, Idaho, pro se.

William H. Lamphere, Whitesboro, N.Y., pro se.

John O. Cossell, Wallace, Idaho, Charles L.A. Cox, Evans, Keane, Koontz, Boyd, Simko & Ripley, Kellogg, Idaho, Nancy A. Pohlman, Witherspoon, Kelley, Davenport & Toole, Coeur d'Alene, Idaho; D. Marc Haws, Asst. U.S. Atty., Boise, Idaho, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before GOODWIN, Chief Judge, WRIGHT and NOONAN, Jr., Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The two pro se appellants before us are unhappy with the results of a local tax levy election. Federal court is not a forum for airing discontent with the electorate's political decisions. We affirm the district court's dismissal of this action for lack of standing and for failure to meet state statutory requirements for contesting an election.

I

On December 21, 1987, Congress passed House Joint Resolution 395, which provided a $6.4 million grant to the City of Kellogg, Idaho, for construction of a gondola for transportation from the city to the Silverhorn ski and recreation area, now called Silver Mountain. In addition, the United States Forest Service was authorized to conduct a public-for-private land exchange.

To provide the necessary matching funds, the city held an election on September 27, 1988 to get voter approval of a tax levy of $100,000 per year for twenty years. Following Idaho law, a sample ballot was published, posted and made available to the public on September 12. On September 13 and 20, the ballot, the notice of election and the ordinance authorizing the election were published. The tax levy passed, gaining 82.5% of the vote.

William Lamphere and Guy Bell initiated a suit in state court, ¹ alleging that the land exchange and funding of the gondola were improper. They also contested the validity of the election under state law, alleged that information was withheld and the public misled, and asserted that public officials were serving private rather than public interests. Twenty-two defendants were named including the city, the mayor, city council members, the city's attorneys, private parties involved in the gondola project and the Forest Service. The complaint sought declaratory and injunctive relief, and damages in the amount of the allegedly misused public funds.

The suit was removed to federal court by the Forest Service. The district court granted Lamphere's motion for voluntary discontinuance, which it interpreted as a motion for voluntary dismissal. Bell's claims, except those against the city, were dismissed for lack of jurisdiction because Bell lacked standing. The claims against the city were dismissed for failure to post a bond as required by state law. A second order was entered after Lamphere and Bell filed their notices of appeal. In that order, Judge Ryan awarded attorneys' fees to two defendants, denied Bell's motion to reconsider and denied Lamphere's motions for relief from the judgment and to remand to state court.

Appellants appeal both orders. We have jurisdiction under 28 U.S.C. Sec. 1291.

II

Lamphere argues that the dismissal of his claims upon his motion for voluntary discontinuance violated his constitutional rights of due process and equal protection. He claims he intended to assign his interest in the suit to Bell and thereby discontinue his prosecution of the case because he was moving to New York state. ²

The court interpreted the motion as one for voluntary dismissal. The order granting the motion failed to specify whether the dismissal was with or without prejudice. When unspecified, Federal Rule of Civil Procedure 41(a)(2) deems such dismissals as made without prejudice.

Generally, a plaintiff may not appeal a voluntary dismissal because there is no involuntary or adverse judgment against him. Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 555 (9th Cir.1986), cert. denied sub nom., Barton v. E.F. Hutton & Co., 484 U.S. 822, 108 S.Ct. 83, 98 L.Ed.2d 45 (1987). Without an adverse impact Because the dismissal was without prejudice, the only possible impairment of rights here is the district court's alleged failure to recognize that Lamphere's motion might have been conditioned on his assignment of rights to Bell. The language of the motion, however, was not conditional, nor did it recite any authority for such assignment. Under the circumstances, Lamphere suffered no impairment of rights.

there is no standing to contest the voluntary dismissal. Chromalloy Am. Corp. v. Fischmann, 716 F.2d 683, 687 (9th Cir.1983).

Even if Lamphere had standing to appeal, this court reviews a grant of voluntary dismissal under Rule 41(a)(2) for abuse of discretion. Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir.1982). The court did not abuse its discretion by granting his request to be released from the case.

Because Lamphere's claims were dismissed properly we need not address his remaining substantive arguments.

III

Bell claims to represent federal and state taxpayers and citizens, asserting three general harms as grounds for standing to assert constitutional claims: (1) the misuse of tax money by federal and local funding of the gondola project, (2) the Forest Service's failure to follow its own regulations for land exchanges, including a failure to assess the mineral value of the land before it was traded, and (3) the withholding of information from the electorate as an impairment of the right to vote and a violation of due process and equal protection.

The threshold question is whether Bell has alleged "distinct and palpable" injuries to himself. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Without actual injury and redressability, there is no case or controversy under Article III of the federal constitution and no federal jurisdiction. Id. at 498, 95 S.Ct. at 2204. In addition to the constitutional requirements of Article III, several prudential rules have been crafted. Two are relevant to our inquiry: federal courts are not forums for hearing generalized grievances by taxpayers and citizens, and a party must assert his own rights, not those of others. Id. at 499-500, 95 S.Ct. at 2205.

A

To have standing as a federal taxpayer to challenge governmental action, a plaintiff must meet the two-part test of Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), which serves as an overlay to the minimum Article III requirements. First, there must be a logical connection between the plaintiff's status as a taxpayer and the type of legislation attacked, meaning the suit must challenge actions taken under the tax and spending clause of the federal constitution. Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 227-228, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974). Second, there must be a link between the taxpayer's status and an alleged constitutional violation. Flast, 392 U.S. at 102, 88 S.Ct. at 1953. The plaintiff must articulate a constitutional limitation on the governmental acts in question.

Bell does not challenge either the constitutionality of House Joint Resolution 395 or the actions of the Forest Service. ³ His mere disagreement with a governmental decision will not suffice to meet the Flast test. Only Bell's allegation that taxpayer money was misused satisfies the Under the prudential standing rules, a federal court will not provide a forum to air "generalized grievances about the conduct of government." Flast, 392 U.S. at 106, 88 S.Ct. at 1956. Complaints that citizens lack information to follow government action or be informed when voting are not sufficiently particularized injuries to support standing as a taxpayer. Such a plaintiff's place is at the polls, not in federal court. United States v. Richardson, 418 U.S. 166, 176, 179, 94 S.Ct. 2940, 2946, 2947, 41 L.Ed.2d 678 (1974).

first prong of the Flast test. He fails to meet the second prong, however, because he alleges no constitutional limitation on Congress' ability to approve the grant and land exchanges needed for the gondola development.

Bell may not predicate his standing as a federal citizen upon an interest held generally by the public. An injury to all citizens is necessarily abstract in nature. Schlesinger, 418 U.S. at 220, 94 S.Ct. at 2931. A plaintiff must have a personal stake in the outcome. Motive or sincerity of commitment to the cause is irrelevant to the inquiry. Id. at 225-26, 94 S.Ct. at 2934.

A general assertion that the Kellogg area will be economically affected by the project is not enough to establish the requisite stake in the outcome. Bell's injury from the $6.4 million grant and the land exchange is unknown, abstract and not concrete. His challenge is nothing more than dissatisfaction with a political decision.

We hold that Bell lacks standing to pursue his claims as a federal taxpayer or citizen.

B

The same constitutional standing principles apply to those suing in federal court as state taxpayers. Asarco Inc. v. Kadish, 490 U.S. 605, 612, 109 S.Ct. 2037, 2043, 104 L.Ed.2d 696 (1989). While it is unclear whether the prudential rule of Flast applies in this context, Hoohuli v. Ariyoshi, 741 F.2d 1169, 1178-80 (9th Cir.1984) (interpreting the state taxpayer standing rule as requiring a pocketbook injury), it is clear that a state taxpayer must show " 'direct injury,' pecuniary or otherwise." Asarco, 109 S.Ct. at...