Carson v. Makin
| Decision Date | 06 April 2023 |
| Docket Number | 1:18-cv-00327-JAW |
| Parties | DAVID CARSON, et al., Plaintiffs, v. A. PENDER MAKIN, in her official capacity as Commissioner of the Maine Department of Education, Defendant. |
| Court | U.S. District Court — District of Maine |
ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFFS' MOTION FOR ENTRY OF JUDGMENT
Applying the rule of mandate, the Court obeys the opinion of the United States Supreme Court and the mandate of the Court of Appeals for the First Circuit and declines to dismiss the case these courts remanded to this Court to act in a manner consistent with the Supreme Court's decision.
This case involves a First Amendment challenge to the constitutionality of a state statute, 20-A M.R.S. § 2951(2), which makes religious primary and secondary schools ineligible for public tuition payments. See Pls.' Compl. (ECF No. 1). After losing in the district court and court of appeals, the Plaintiffs took their case to the United States Supreme Court and won. On June 21, 2022, the United States Supreme Court decided Carson v. Makin 142 S.Ct. 1987 (2022), reversing the judgment of the Court of Appeals for the First Circuit and remanding the case “for further proceedings consistent with this opinion.” Id. at 2002. In Carson, the Supreme Court concluded that “Maine's ‘nonsectarian' requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment.” Id. The Carson Court wrote “[r]egardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” Id.
Consistent with the directive of the United States Supreme Court, the Court of Appeals for the First Circuit issued a judgment on July 25, 2022:
In light of the Supreme Court's decision in Carson, et al. v. Makin, 142 S.Ct. 1987 (2022), reversing this court's judgment, we hereby vacate the district court's decision and remand the case for further proceedings consistent with the Supreme Court's opinion.
J. (ECF No. 70). On August 16, 2022, the First Circuit issued its mandate. Mandate (ECF No. 72) (Mandate).
On September 21, 2022, the Plaintiffs filed a motion for entry of judgment. Pls.' Mot. for Entry of J., Including Injun. Relief (ECF No. 79) . On November 16, 2022, A. Pender Makin, Commissioner of the Maine Department of Education, responded to the Plaintiffs' motion for entry of judgment that because the Plaintiffs “no longer have any cognizable interest in the application of Section 2951(2), defendant has this date filed a motion to dismiss this action as moot.” Def.'s Opp'n to Pls.' Mot. for Entry of J. (ECF No. 90) (Def.'s Opp'n). On the same date, Commissioner Makin moved to dismiss the Plaintiffs' Complaint because she says the Plaintiffs no longer have standing and the case should therefore be dismissed as moot. Def. 's Mot. to Dismiss (ECF No. 89) (Def. 's Mot.). The Plaintiffs filed a reply in support of their motion for judgment on November 30, 2022, Reply in Supp. of Pls.' Mot. for Entry of J. (ECF No. 91) , and opposed the motion to dismiss on December 7, 2022. Resp. in Opp'n to Def. 's Mot. to Dismiss (ECF No. 92) . Commissioner Makin filed a reply on December 19, 2022. Def.'s Reply in Support of Mot. to Dismiss (ECF No. 93).
In her motion to dismiss, Commissioner Makin notes that the Plaintiffs originally brought suit on behalf of four public school students who professed a desire to attend a religious school. Def.'s Mot. at 1. In the nearly five years that have elapsed since, however, “three of the four children have graduated from high school” and she submits that “they [and their parents] no longer have any cognizable interest” in the outcome of the litigation. Id. Nor, she contends, does the fourth child-referred to as R.N.-who transferred in 2019 from a private religious school to a public high school and then to a private, non-religious high school, where he is now in his junior year. Id.
In the Commissioner's view, “Plaintiffs no longer claim that but for the statute, R.N. would attend a religious school at public expense” and, “[r]ather, they claim only that should a suitable religious school begin participating in the tuition program (and none has so far), R.N. would be allowed to decide for himself whether to finish his senior year at his current high school or transfer to the religious school.” Id. at 1-2. She asserts that, because “Plaintiffs have no idea which option R.N. would select,” it is “purely speculative as to whether R.N. is suffering any injury as a result of the exclusion of religious schools from the tuition program, and under well-established precedent, the case is now moot and should be dismissed.” Id. at 2.
The Plaintiffs respond that the Supreme Court ruled in their favor, holding that the “nonsectarian” requirement was unconstitutional, and then remanded the case “for further proceedings consistent with this opinion.” Pls.' Opp'n at 1 (quoting Carson, 142 S.Ct. at 2002). In Plaintiffs' view, “those proceedings should include entry of a simple declaratory judgment regarding the unconstitutionality of the nonsectarian requirement and a simple injunction barring its enforcement.” Id.
They argue further that “[d]espite the Supreme Court's decision, [the Commissioner and Maine Attorney General] have maintained their hostility toward religious schools” and that the Commissioner's motion “is nothing more than a recycling of arguments she has repeatedly made throughout this case to challenge the [plaintiffs'] standing.” Id. at 1-2. “Those arguments,” Plaintiffs contend, “have been rejected at every turn-by this Court, the First Circuit, and the Supreme Court” and “the Court should deny the Commissioner's motion.” Id. at 2.
The Plaintiffs observe that, “[a]t every stage of the ensuing litigation, the Commissioner asserted that they lacked standing,” and that argument has been repeatedly rejected. Id. at 4. They note that Judge Brock Hornby of this Court and the First Circuit each held that-regardless of whether any religious schools would apply for funding if the nonsectarian requirement was struck down-the Plaintiffs had standing because the constitutional injury was the loss of the “opportunity” to seek religious education. Id. at 5-6. Finally, the Plaintiffs add, the Commissioner again pressed her standing argument in opposition to their petition for certiorari and on the merits at the Supreme Court, and the Supreme Court nonetheless granted certiorari and ruled in the Plaintiffs' favor. Id. at 6-7.
In reply, the Commissioner reiterates that all but one student plaintiff, R.N., has graduated high school and “[t]he [Nelson] parents acknowledge that it is up to their son to decide where to complete his final year of high school, and there is no evidence in the record suggesting that he wants to transfer to a religious school.” Def.'s Opp'n at 1. Commissioner Makin asserts that the Nelsons are not being denied an “opportunity” to send R.N. to religious school and their claimed “‘injury' is far too speculative and hypothetical to prevent this case from being moot.” Id.
The Commissioner adds that her current mootness argument is different than her previous position rejected by this Court, the First Circuit, and the Supreme Court. Id. at 2. Her prior argument “was that the plaintiffs lacked standing because a favorable ruling would not redress their injuries inasmuch as there was no evidence that, if they prevailed, any religious school would participate in the public tuition program.” Id. She submits that now, however, “the case is moot because there is no evidence that even if a suitable school did participate, any plaintiff would attend that school.” Id. Ultimately, the Commissioner concludes that if parents “sued alleging nothing more than that they wanted the opportunity to find a religious school for their child, without any evidence that the child would actually attend that school if the parents were successful, it is impossible to see how they would have standing,” and “because this is precisely the posture of the case now, the matter is moot.” Id. at 1-2.
The Plaintiffs move for entry of judgment: (1) declaring Me. Stat. tit. 20-A, § 2951(2) unconstitutional under the Free Exercise Clause; and (2) permanently enjoining Defendant from enforcing the statute. Pls.' Mot. at 1.
They contend that a declaratory judgment is appropriate because the Supreme Court has already held that the exclusion “violates the Free Exercise Clause of the First Amendment,” id. at 8 (quoting Carson, 142 S.Ct. at 2002), and “moreover, the Commissioner acknowledges that a declaratory judgment from this Court is appropriate.” Id. The Plaintiffs add that a permanent injunction is also warranted, offering that entry of a permanent injunction is appropriate when:
Id. at 9 (quoting eBay Inc. v. MercExchange L.L.C., 547 U.S. 388, 391 (2006)). They assert that “[t]here is no question that the Carsons and Gillises ‘have suffered'-and that the Nelsons continue to suffer-‘an irreparable injury,' namely, the denial of the opportunity to find...
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