Colorado Taxpayers Union, Inc. v. Romer, s. 91-1005

• Decision Date: 15 May 1992
• Docket Number: 91-1019,Nos. 91-1005,s. 91-1005
• Citation: 963 F.2d 1394
• Parties: COLORADO TAXPAYERS UNION, INC.; Colorado Libertarian Party; Mary Lind; David Aitkin; Vern Bickel; Pasquale Francomano; Clyde Harkins; Basil R. Walton, Jr., Plaintiffs-Appellants/Cross-Appellees, and Janet Gustafson; Gene Levy, Plaintiffs, v. Roy ROMER, individually, and as Governor of the State of Colorado, Defendant-Appellee/Cross-Appellant, and Citizens for Representative Government; Phil Fox; Clark Shaw; Does 1 through 20, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1394

963 F.2d 1394

COLORADO TAXPAYERS UNION, INC.; Colorado Libertarian Party Mary Lind; David Aitkin; Vern Bickel; Pasquale Francomano; Clyde Harkins; Basil R. Walton, Jr. Plaintiffs-Appellants/Cross-Appellees and Janet Gustafson; Gene Levy, Plaintiffs, v. Roy ROMER, individually, and as Governor of the State of Colorado, Defendant-Appellee/Cross-Appellant and Citizens for Representative Government; Phil Fox; Clark Shaw; Does 1 through 20, Defendants.

Nos. 91-1005, 91-1019.

United States Court of Appeals, Tenth Circuit.

May 15, 1992.

Carla T. Main (Brian M. Cogan, of Stroock & Stroock & Lavan, New York City, Wayne E. Stockton, Fort Collins, Colo., and Michael McDonald, Center for Individual Rights, Washington, D.C., of counsel, with her on the briefs), of Stroock & Stroock & Lavan, New York City, for plaintiffs-appellants/cross-appellees.

Maurice Knaizer, Office of Atty. Gen., (Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., and Timothy M. Tymkovich, Sol. Gen., on the briefs), for defendant-appellee/cross-appellant.

Roxanne Campbell, Aurora, Colo., Alden Kautz, William Johnson, Roy Peister, Littleton, Colo.; Donald Turner, pro se amici, curiae.

Before ANDERSON and TACHA, Circuit Judges, and COOK, District Judge. ^*

TACHA, Circuit Judge.

Appellants appeal an order of the district court granting defendants' motion for summary judgment. Colorado Taxpayers Union, Inc. v. Romer, 750 F.Supp. 1041 (D.Colo.1990). On appeal, appellants contend that the Governor of Colorado violated their First Amendment rights by using state resources to defeat an amendment on the ballot at a Colorado general election. Appellee Romer cross appeals asserting that appellants lack standing to pursue this action. We exercise jurisdiction under 28 U.S.C. § 1291 and dismiss the appeal for lack of standing.

BACKGROUND

In October of 1988, the citizens of Colorado placed an initiative, commonly referred to as Amendment six, on the ballot at the Colorado general election. Amendment six focused on statewide tax reform and would have allowed the citizens of Colorado to vote directly on any significant change in state tax laws.

Appellee Romer, the Governor of the State of Colorado, and defendant Citizens for Representative Government, of which defendants Phil Fox and Clark Shaw were members, publicly opposed the amendment. Appellants assert that Governor Romer used numerous public resources to publicly oppose the amendment. These resources allegedly included staff time, equipment and supplies, travel resources, and facilities at the state mansion and state capital office. Amendment six eventually was defeated in the Colorado general election.

After the defeat of the amendment, appellants filed a suit in the United States District Court for the District of Colorado seeking relief under 42 U.S.C. § 1983. Appellants claimed that Governor Romer violated their First Amendment rights by using state resources and the power and prestige of his office to oppose the amendment. Appellants also asserted that the Governor and the other defendants combined in a conspiracy to violate the appellants' constitutional rights in violation of 42 U.S.C. § 1985(3) and common law.

Asserting that appellants lacked standing and that they failed to state a claim for relief for a violation of the United States Constitution, defendants moved for summary judgment. Appellants cross-moved for summary judgment. The district court denied appellants' motion and then addressed defendants' motion, denying it in part and granting it in part. The district court found that appellants had standing to sue, but that Governor Romer's expenditures were "de minimis" so that the appellants failed to state a claim.

DISCUSSION

On appeal, Romer contends that appellants lack standing to pursue this action. Because we agree with this contention, we address only the standing argument and do not address the merits of appellants' contentions on appeal. In this case, appellants are two associations, the Colorado Taxpayers Union and the Colorado Libertarian Party, and a number of individuals.

Before a party may invoke the jurisdiction of the federal courts, Article III requires that the party demonstrate that (1) " 'he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant' "; (2) "the injury 'fairly can be traced to the challenged action' "; and (3) the injury " 'is likely to be redressed by a favorable decision.' " Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979) and Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)). If a party satisfies these minimum constitutional requirements, then a court may still deny standing for prudential reasons if the injury alleged constitutes a "generalized grievance" that more appropriately should be addressed by the representative branches. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).

The district court concluded that plaintiffs "alleged sufficient injury for standing." Colorado Taxpayers Union, Inc. v. Romer, 750 F.Supp. 1041, 1043 (D.Colo.1990). In support of this conclusion, the district court stated that "[t]he harm consists of the additional burden imposed on the plaintiffs by the defendants' allegedly unconstitutional acts. Like the plaintiffs in Common Cause v. Bolger, [512 F.Supp. 26, 30 (D.D.C.1980) ], the plaintiffs here have alleged that their campaign for Amendment 6 would not have been so difficult (and, in fact, might have been successful) but for the defendants' acts." Id. We must now determine whether the individuals or either of the associations, the Colorado Libertarian Party or the Colorado Taxpayers Union, have standing to bring this suit.

A. The Colorado Libertarian Party

Appellants contend that the Libertarian Party has standing to sue because it seeks judicial relief for injuries to the organization. An organization has standing on its own behalf if it meets the standing requirements that apply to individuals. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 1124-25, 71 L.Ed.2d 214 (1982). To have standing, plaintiffs must allege " 'such a personal stake in the outcome of the controversy' as to warrant ... invocation of federal-court jurisdiction." Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)). Appellants must demonstrate that their alleged injury is an "injury in fact, economic or otherwise." Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). The injury must be " 'distinct and palpable,' " Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)), and "real and immediate," not abstract, conjectural, speculative, or hypothetical, City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 1664-65, 75 L.Ed.2d 675 (1983).

Appellants claim that Governor Romer used his staff and the resources of his office to defeat the tax initiative supported by the Libertarian Party and thus forced the Party to bear a greater burden in its attempt to pass the amendment. Appellants claim that under Havens, 455 U.S. at 379, 102 S.Ct. at 1124, this drain on resources is a concrete and demonstrable injury.

In Havens, the Supreme Court found that an organization was entitled to standing on its own behalf because the organization alleged that an apartment owner's racial steering practices had perceptively impaired the organization's ability to provide counseling and referral services for low and moderate income home seekers. The Court stated that "[s]uch [a] concrete and demonstrable injury to the organization's activities--with the consequent drain on the organization's resources--constitutes far more than simply a setback to the organization's abstract social interests." Id. at 379, 102 S.Ct. at 1124.

Appellants' argument that they were forced to counteract the Governor's activities through the expenditure of additional funds is purely conjectural. Such an argument simply does not demonstrate that the Libertarian Party or its members have suffered a distinct and concrete injury. At most, the Libertarian Party's allegations suggest only that the organization has received a minor setback to its organizational purpose. The Libertarian Party's argument would require this court to engage in a futile act of speculation in order to determine the extent of some remote, uncertain injury. This type of conjectural injury cannot establish standing under Havens. In Havens, the defendant's allegedly unlawful conduct could be tied directly to a concrete harm inflicted upon the primary activity of the plaintiff organization--the organization's counseling and referral efforts were rendered futile when the defendant turned away referred applicants. Here, appellants' actions in spending additional funds simply cannot be traced to the Governor's allegedly illegal expenditures. It is pure conjecture to assume that Governor Romer's activities caused appellants to drain their resources. Thus, we conclude that appellants have not "allege[d] [a] personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).

The Libertarian Party also argues that it suffered an injury when its First Amendment rights were chilled. Appellants...