City and County of Denver v. Matsch, 80-2087

• Decision Date: 03 December 1980
• Docket Number: No. 80-2087,80-2087
• Citation: 635 F.2d 804
• Parties: The CITY AND COUNTY OF DENVER, Petitioner, v. The Honorable Richard P. MATSCH, Judge, United States District Court, Respondent, and Citizens Concerned For Separation of Church and State, Real Party in Interest.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 804

635 F.2d 804

The CITY AND COUNTY OF DENVER, Petitioner, v. The Honorable Richard P. MATSCH, Judge, United States District Court, Respondent and Citizens Concerned For Separation of Church and State, Real Party in Interest.

No. 80-2087.

United States Court of Appeals Tenth Circuit.

Dec. 3, 1980.

MEMORANDUM ORDER GRANTING PETITION FOR WRIT OF PROHIBITION

Before BARRETT, DOYLE and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

THIS MATTER is before the Court on a Petition for Writ of Prohibition filed by the City and County of Denver seeking an order prohibiting the United States District Court for the District of Colorado and the Honorable Richard P. Matsch, presiding, from conducting further proceedings in Civil Action No. 79-M-1605, styled Citizens Concerned for Separation of Church and State v. The City and County of Denver.

Following the filing of the petition, this Court stayed the District Court's order of October 14, 1980, setting down Plaintiff's Motion for Jurisdictional Hearing for October 24, 1980, at 1:30 p. m. In accordance with Rule 21(b), Fed.Rules of App.Proc., 28 U.S.C., we further ordered that (a) Real Party in Interest, Citizens Concerned for Separation of Church and State, file an answer to Petition on or before October 30, 1980, at 5:00 p. m., and (b) the respective parties to this controversy file concurrent typewritten briefs directed to the power of the District Court to entertain the jurisdictional hearing in light of our prior opinion in No. 79-2303, Citizens Concerned, Etc. v. City and Cty. of Denver, 628 F.2d 1289 (10th Cir. 1980).

On October 30, 1980, Citizens Concerned for Separation of Church and State (hereinafter referred to as Citizens) filed its "Response", thereafter supplemented on November 3, 1980. Petitioner, The City and County of Denver (hereinafter referred to as City-County) did not file a supplemental brief on or before November 3, 1980, apparently relying on its contentions and authorities cited in its Petition for Writ of Prohibition. Respondent, Honorable Richard P. Matsch, Judge, United States District Court, has not filed an appearance. We have determined that oral arguments would not lend material assistance to the Court and, accordingly, the Petition is considered on the record, pleadings, responses and briefs.

Preliminary Background

On September 4, 1980, this Court rendered its opinion in Citizens Concerned, Etc. v. City and Cty. of Denver, supra, whereby, in conclusion, we stated:

In light of our holding that we are without jurisdiction over this cause on appeal, we cannot reach the merits of the dispute involving the alleged violation of the Establishment Clause of the First Amendment to the United States Constitution by reason of the Nativity Scene display.

The appeal is dismissed and the cause is remanded to the District Court with instruction to vacate the judgment of December 17, 1979, for want of jurisdiction.

628 F.2d at p. 1301.

On October 6, 1980, Citizens filed a Motion for Jurisdictional Hearing with the District Court, seeking to cure its failure to prove standing to sue at the consolidated hearing leading to this Court's opinion of September 4, 1980. On October 14, 1980, the District Court, over objection of City-County, entered its "Memorandum Opinion and Order Interpreting Mandate, Vacating Judgment and Directing Evidentiary Hearing on Jurisdiction".

The Court noted that at the October 14th hearing, Citizens "... made an offer of proof, indicating that if an opportunity is provided, the plaintiff would establish that it is a voluntary association whose members are citizens and taxpayers of the City and County of Denver who are adversely affected by the City's inclusion of a religious scene in the annual lighting display at the City and County Building and that such evidence would clearly establish standing and jurisdiction for the case or controversy brought in this civil action." At the same hearing, City-County was asked if it intended to construct a lighting display, including the Nativity Scene in a manner comparable with that shown in the evidentiary record of this case in December, 1980 and January, 1981. The response was that the City-County did intend to construct such a display for this holiday season.

The Court cited to Coppedge v. Clinton, 72 F.2d 531 (10th Cir. 1934) for the proposition that a full retrial of the merits should not be required where the issue of jurisdiction was first raised on appeal and that a hearing on the issue should be held on remand. The District Court noted that this Court did not direct dismissal of the action, as urged by City-County, but "... only directed the vacation of the judgment entered in this court on December 17, 1979." The District Court further cited Estate of Whitlock v. Commissioner of Internal Revenue, 547 F.2d 506 (10th Cir. 1976), cert. denied, 430 U.S. 916, 97 S.Ct. 1329, 51 L.Ed.2d 594 (1977), for the proposition "... that the opinion of the appellate court may be consulted to determine the intent of its mandate and that if the lower court believes the mandate to be unclear, it can make a decision reflecting its understanding of that mandate."

Based thereon, and while recognizing that the "acute awareness of the public interest shown in the previous proceedings in this case and the divisive effect it has had" the Court found and concluded "... that this Court has not been directed to dismiss the action and that it has jurisdiction to determine standing and, therefore, to determine whether a justiciable case or controversy was before this Court at the time of the hearing on December 12, 1979..."

Contentions of the Parties

It is City-County's position that the Trial Court's order convening a "jurisdictional hearing" is in excess of its authority under our mandate which "... granted no relief to the Respondent (Citizens) but simply remanded for the vacation of the trial court's judgment for want of jurisdiction."

Citizens contends that the District Court's decision to take evidence on standing does not constitute an abuse of discretion justifying the issuance of the Writ of Prohibition, citing to Sierra Club v. Morton, 405 U.S. 727, 735-736, n. 8, 92 S.Ct. 1361, 1366, n. 8, 31 L.Ed.2d 636 (1972), Warth v. Seldin, 422 U.S. 490, 501-502, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 45, n. 25, 96 S.Ct. 1917, 1927, n. 25, 48 L.Ed.2d 450 (1976), Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109, n. 22, 99 S.Ct. 1601, 1613, 60 L.Ed.2d 66 (1979), Whitelock v. Leatherman, 460 F.2d 507, 515 (10th Cir. 1972) and Buell v. Sears, Roebuck and Co., 321 F.2d 468, 471 (10th Cir. 1963) for the proposition that "Litigants are to be given full opportunity to correct any deficiencies in allegations or proof in order to sustain their standing before the federal courts."

Our Disposition

A.

In our view, the authorities relied upon by the Trial Court and Citizens miss the mark.

Coppedge v. Clinton, supra, does not support the District Court's order. The challenge there was lack of jurisdiction for want of requisite diversity of citizenship. This Court did, to be sure, remand for trial on the jurisdictional issue only. The remand in Coppedge, unlike the remand in the instant case, was predicated on the use of improper legal criteria applied by the trial court. Such was not the problem in the case at bar. Jurisdiction was simply not established, although properly plead. No mistake in application of legal doctrines or criteria led to the deficiency in this case, as in Coppedge. There is no similarity between the two cases.

In the instant case, there is no basis in the record to support the judgment, notwithstanding the fact, as previously observed, that paragraph 3 of Citizens' complaint did, in a pleading sense, contain "... adequate factual allegations to establish standing." Thus, we clearly recognized that there was no deficiency in Citizens' complaint, per se, but that under the circumstances of the proceedings (no answer filed or required and cause submitted on a consolidation of the preliminary with the permanent injunction request as permitted under Rule 65(a)(2)) that "... the burden of establishing all jurisdictional facts was squarely that of the petitioner, Citizens, when the District Court hearing was held." (628 F.2d at p. 1298). We further said that "... at a hearing upon consolidation pursuant to rule 65(a)(2), supra, for permanent injunction, the plaintiff cannot hold back evidence and must fully develop his case" (628 F.2d at p. 1300) and "... this appeal must be dismissed on the ground that ... Citizens, has failed to establish on the record that any constitutionally protected interest of it or its members has been abridged by the challenged display of the Nativity Scene." (628 F.2d at p. 1294).

Citizens' reliance on Sierra Club v. Morton, supra, Warth v. Seldin, supra, Simon v. Eastern Ky. Welfare Rights Org., supra, Gladstone Realtors v. Village of Bellwood, supra, Whitelock v. Leatherman, supra, and Buell v. Sears, Roebuck and Co., supra, is misplaced. Those opinions deal with defects in pleadings relating to the adequacy of allegations of standing. They hold that litigants should be accorded liberal rights to amend the complaint or by other pleadings in order to cure the jurisdictional defects existing in the allegations. We have no quarrel with those decisions. They do not, however, apply to the case at bar.

We reiterate and emphasize that no jurisdictional defects existed in the complaint or allegations in the case at bar. We specially recognized this fact in our opinion. The defect, we pointedly observed, was that of proof. Citizens failed to "... present any evidence, direct or circumstantial, relative to its organizational status, structure, purpose or relationship with any person or persons. Witnesses called by Citizens did not testify relative to Citizens or their associational...