Calvary Bible Presbyterian Church of Seattle v. Board of Regents of University of Wash.

CourtUnited States State Supreme Court of Washington
Citation436 P.2d 189,72 Wn.2d 912
Decision Date28 December 1967
Docket NumberNo. 39226,39226
PartiesCALVARY BIBLE PRESBYTERIAN CHURCH OF SEATTLE, a nonprofit corporation, Tacoma Bible Presbyterian Church, a nonprofit corporation, Reverend Thomas W. Miller, and Reverend Harold Webb, Appellants, v. BOARD OF REGENTS OF the UNIVERSITY OF WASHINGTON, Respondent.

Page 912

72 Wn.2d 912
436 P.2d 189
CALVARY BIBLE PRESBYTERIAN CHURCH OF SEATTLE, a nonprofit
corporation, Tacoma Bible Presbyterian Church, a
nonprofit corporation, Reverend Thomas
W. Miller, and Reverend Harold
Webb, Appellants,
v.
BOARD OF REGENTS OF the UNIVERSITY OF WASHINGTON, Respondent.
No. 39226.
Supreme Court of Washington, En Banc.
Dec. 28, 1967.
Rehearing Denied March 8, 1968.

[436 P.2d 190]

Page 913

Cartano, Botzer & Chapman, Douglas J. Smith, Seattle, for appellants.

John J. O'Connell, Atty. Gen., James B. Wilson, Asst. Atty. Gen., Olympia, for respondent.

Arval A. Morris, Lenihan & Ivers, Henry T. Ivers, Seattle, amici curiae.

WEAVER, Judge.

Since 1919, the Department of English of the University of Washington, a state tax-supported university, has offered an elective course of study presently designated 'English 390: The Bible as Literature.'

Two churches, incorporated organizations, and their respective ministers commenced this action against the Board of Regents of the University of Washington praying (1) for an injunction pendente lite directing the defendants to

Page 914

discontinue 'the prescribed course 1 until such time as the matter may be fully considered by the Court;' and (2) for a 'permanent injunction * * * restraining the Board of Regents from authorizing any course of instruction dealing with the historical, biographical, narrative or literary features of the Bible.'

Plaintiffs contend that the teaching of English 390 is violative of Art. 1, § 11 and Art. 9, § 4 of the Washington State Constitution, which provide:

No public money or property shall be appropriated for, or applied to any religious worship, exercise or instruction, * * *. (Art. 1, § 11).

All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence. (Art. 9, § 4).

Plaintiffs also contend that the teaching of English 390 violates the First Amendment of the United States Constitution ('Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *.') as applied to the states through the Fourteenth Amendment.

Although the constitutional violations are urged, the major premise of plaintiffs' argument,[436 P.2d 191] as alleged in their amended complaint, is:

That the manner in which said presentation is made (of English 390) is contrary to the religious beliefs of Plaintiffs, both individually and as church organizations and congregations. That said manner of presentation is in itself the presentation of a religious point of view, being one of several theological positions within the Protestant faith.

After hearing upon plaintiffs' motion for a temporary injunction and defendant's motion to dismiss the complaint, the trial court:

1. Denied plaintiffs' motion for a temporary injunction and authorized defendant 'to grant such credits as are ordinarily granted to those students in said course who successfully complete it, * * *' pending final decision;

Page 915

2. Dismissed the two churches as parties plaintiff 'on the ground that said plaintiffs have no standing to sue as taxpayers;'

3. Refused to dismiss the two ministers as parties plaintiff for they 'have standing to sue as taxpayers without further showing of interest;'

4. Determined the guidelines for the trial of the issues by ordering

that the issues of fact upon which the plaintiffs have the burden of proof is whether English 390 as taught at the University of Washington by Professor Fowler, or any other instructor at the University, is slanted in a religious direction, or designed to induce a particular religious belief, or to advance particular religious interests, or whether the course amounts to religious indoctrination by teaching from a fixed theological position to promote a particular theology; * * *.

It is apparent at once that plaintiffs' major premise does not meet directly the guidelines laid down by the trial court. Basically, the question before the trial court was factual. The problem is one of the purpose and character of the teaching.

The trial court found: that English 390 concerns itself with the literary features of the Bible and, as a necessary part thereof, the history of ancient Israel; the authorship and treatment of the various books of the Bible, and their interpretation from a literary and an historical point of view, employing the same techniques of scholarship used in the study of any other literary or historical text; that the course is offered as part of a secular program of education to advance the knowledge of students and the learning of mankind; that it is taught by members of the English department who are competent literary scholars, qualified to teach in their respective fields of specialization. The course is not taught by theologians. One professor uses the Revised Standard Version of the Bible; another the Oxford Annotated Edition of the Revised Standard Version; a third, the King James version. Each makes his choice of the English translation for his own professional reasons.

Page 916

Further, the court found that English 390 is taught as a study of the Bible for its literary and historic qualities and is presented objectively as a part of a secular program of education.

Finally, the court found that the course:

does not promote a particular theology for purposes of religious indoctrination, nor is it slanted in a religious direction, nor does it induce any particular religious belief, nor does it advance any particular religious interests or theology.

There is no evidence that English 390, as taught at the University of Washington, is intended to affect the religious beliefs of students taking the course or indoctrinate them in any particular religious belief, or that it has had that effect.

The trial court dismissed plaintiffs' complaint with prejudice.

Plaintiffs' 15 assignments of error may be grouped into three categories. The First contains assignments of a technical nature usually made to insure that everything is before the appellate court. The assignments of error in the Second category are directed [436 P.2d 192] to the trial court's dismissal of the two churches as parties plaintiff. The Third group of assignments involves the trial court's refusal to adopt plaintiffs' proposed findings of fact and conclusions of law and its adoption of those proposed by the defendants.

The first category of plaintiffs' assignments of error need not be discussed.

The second--the dismissal of the two churches as parties plaintiff because they are not taxpayers and have no 'standing' to raise the questions involved--presents a problem that is as much a question of political science as it is of law.

The traditional approach is that a taxpayer must show that he has a unique right or interest that is being violated, in a manner special and different from the rights of other taxpayers, before he may maintain an action against the state or one of its agencies, to test the constitutionality

Page 917

of a statute or an administrative policy. It is not the province of the court to delve into the policy judgments of other branches of government. On the other hand, the court does have a responsibility to protect the legislative and executive branches of government from legal actions of harassment by those who do not have rights affected; and to protect the public from the possibility that judicially-developed law may become the product of friendly suits in which both parties seek to establish the same principle, to the detriment of others whose rights will be controlled by the precedent established.

It would be unrealistic to say that this court has always been consistent in its determination of those who had 'standing' to maintain an action to test the constitutionality of a statute or of an administrative ruling or practice. 2 In a plethora of decisions between Jones v. Reed, 3 Wash. 57, 27 P. 1067 (1891), and Fransen v. State Board of Natural Resources, 66 Wash.2d 672, 404 P.2d 432 (1965), a variety of conclusions have been reached. Some of the distinctions the court has drawn are shadowy and inconclusive.

In one field, however, it is rather certain that the plaintiff must at least be a taxpayer. Plaintiff churches cite only one case in support of their contention that they should not have been dismissed from the case--Perry v. School Dist. No. 81, 54 Wash.2d 886, 344 P.2d 1036 (1959) (released-time from school for religious instruction). Factually, it appears that several religious organizations were granted permission to file complaints in intervention in the Perry case. The decision, however, does not discuss the 'standing' of the plaintiffs in intervention, and we do not consider the case authority for the position of the plaintiffs in this case.

Since the trial court found that appellant churches were not taxpayers, it was not error to dismiss them from this case.

Page 918

Defendant-respondent makes a passing reference to the alleged error of the trial court when it permitted the two tax-paying ministers to remain as parties plaintiff.

In Fransen, supra, this court cited Reiter v. Wallgren, 28 Wash.2d 872, 184 P.2d 571 (1947); State ex rel. Lemon v. Langlie, 45 Wash.2d 82, 273 P.2d 464 (1954), and State ex rel. Tattersall v. Yelle, 52 Wash.2d 856, 329 P.2d 841 (1958). The court therein permitted a taxpayer to maintain an action, saying:

The defendants maintain that, if taxpayers are allowed to bring injunction actions against public officers, the administration of public affairs will be unduly hampered. They have not brought to our attention a case illustrative of this evil, and certainly the instant action is not an example of unwarranted harassment. Inasmuch as it has not been demonstrated to the court that such taxpayers' suits result in more harm than good, we will not, on this occasion, overturn the rule allowing them. (66 Wn.2d at 677, 404 P.2d at 435).

[436...

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