District of Columbia Common Cause v. District of Columbia

Decision Date20 September 1988
Docket NumberNo. 86-7104,86-7104
PartiesDISTRICT OF COLUMBIA COMMON CAUSE, et al. v. DISTRICT OF COLUMBIA, et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Edward E. Schwab, Asst. Corp. Counsel for the District of Columbia, with whom Frederick D. Cooke, Jr., Acting Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellants.

Andrea C. Ferster, Washington, D.C., for appellees.

Before BUCKLEY and WILLIAMS, Circuit Judges, and THOMAS F. HOGAN, * United States District Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge BUCKLEY.

Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

BUCKLEY, Circuit Judge:

The District of Columbia appeals from a summary judgment entered for plaintiffs by the U.S. District Court for the District of Columbia. We hold that the individual appellees have standing as municipal taxpayers to challenge expenditures by the District of Columbia government to influence the outcome of an initiative. On the merits, we conclude that the expenditures were illegal.

I. BACKGROUND

The plaintiffs/appellees are District of Columbia Common Cause ("Common Cause") and three individuals. Common Cause sues on its own behalf to vindicate its "direct interest in maintaining the integrity of the initiative and referendum process in the District of Columbia," Complaint at p 6. It also asserts "the rights of its members who are registered voters" in the District of Columbia ("D.C." or "District"). Id. The three individual plaintiffs sue as voters and municipal taxpayers; two of them signed the petition to place the initiative on the ballot and voted for it. Complaint at p 7. The individual plaintiffs also seek to assert the "rights of all other registered voters and taxpayers in the District of Columbia." Complaint at p 7.

In November 1984, D.C. voters were asked to vote on Initiative 17, which would establish the right of all persons in the District to adequate overnight shelter and require the Mayor to take reasonable steps to provide such shelter. On election day, the District distributed pamphlets, flyers and posters urging a "No" vote on Initiative 17. D.C. spent nearly $7,000 to oppose Initiative 17, but the voters approved it.

After the dismissal of an administrative complaint, appellees instituted this action against the District and the Director of its Department of Human Services, whom they sued in his official capacity. The district court granted appellees' motion for summary judgment, holding that the use of public funds for the purpose of opposing an initiative was neither authorized by statute nor permitted by the First Amendment. The court enjoined the District from expending public funds to prepare or distribute materials supporting or opposing an initiative, referendum, or other ballot measure.

II. DISCUSSION
A. Standing

Although the parties did not address standing in their initial briefs, we requested supplemental briefing on that question. We conclude that the individual appellees have met the burden of establishing their standing, as municipal taxpayers, to challenge the District's use of public funds to oppose the initiative. Accordingly, we need not determine whether Common Cause has standing in its own right or as representative of its members. See Bowen v. Kendrick, --- U.S. ----, 108 S.Ct. 2562, 2580 n. 15, 101 L.Ed.2d 520 (1988) ("Because we find that the taxpayer appellees have standing, we need not consider the standing of the clergy or the American Jewish Congress.").

1. Varieties of Taxpayer Standing: An Overview

In the first case in which the Supreme Court explicitly considered federal taxpayer standing, Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), the Court reviewed previous cases in which taxpayers had been plaintiffs, including Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899). Bradfield involved an appeal from the Court of Appeals of the District of Columbia in which

that court sustained the right of the plaintiff to sue by treating the case as one directed against the District of Columbia, and therefore subject to the rule frequently stated by this Court, that resident taxpayers may sue to enjoin an illegal use of the moneys of a municipal corporation. Roberts v. Bradfield, 12 App.D.C. 453, 459-460. The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. It is upheld by a large number of state cases and is the rule of this Court. Crampton v. Zabriskie, 101 U.S. 601, 609 [1880].... The reasons which support the extension of the equitable remedy to a single taxpayer in such cases are based upon the peculiar relation of the corporate taxpayer to the corporation, which is not without some resemblance to that subsisting between stockholder and private corporation.... But the relation of a taxpayer of the United States to the Federal Government is very different. His interest in the moneys of the Treasury--partly realized from taxation and partly from other sources--is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.

262 U.S. at 486-87, 43 S.Ct. at 600-01 (emphasis added).

The distinction between federal and municipal taxpayer standing retains its vitality. Frothingham 's rule against federal taxpayer standing was relaxed in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), which permitted a federal taxpayer to challenge an exercise of congressional power to tax and spend as a violation of the Establishment Clause of the First Amendment. See also Bowen v. Kendrick, 108 S.Ct. at 2580. The Court has never recognized federal taxpayer standing outside these narrow facts, and it has refused to extend Flast to exercises of executive power (see Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 228, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974)), or of congressional power under the Property Clause (see Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 480, 102 S.Ct. 752, 762-63, 70 L.Ed.2d 700 (1982)). See generally Kurtz v. Baker, 829 F.2d 1133, 1139-40 (D.C.Cir.1987) (surveying law of federal taxpayer standing), cert. denied, --- U.S. ----, 108 S.Ct. 2831, 100 L.Ed.2d 931 (1988).

Schlesinger, Valley Forge, and similar cases must be understood as limiting the Flast exception to the Court's general rule against federal taxpayer standing. They do not limit municipal taxpayer standing which, as we know from Frothingham, rests on an entirely different foundation. See, e.g., Hawley v. City of Cleveland, 773 F.2d 736, 741-42 (6th Cir.1985) (Valley Forge does not overrule recognition of municipal taxpayer standing in Frothingham; "Supreme Court continues to allow suits by nonfederal taxpayers to enjoin unconstitutional acts affecting public finances"), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Donnelly v. Lynch, 691 F.2d 1029, 1031 (1st Cir.1982) (no indication that Valley Forge intended to overrule cases establishing that municipal taxpayers have standing), rev'd on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984).

2. Elements of Municipal Taxpayer Standing
a. Pocketbook Injury

A taxpayer's challenge to a state expenditure establishes a case or controversy "when it is a good-faith pocketbook action." Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952). Doremus involved a challenge by state taxpayers to Bible reading in public schools. The Court recognized the distinction between municipal and federal taxpayer standing, but refused to accord standing to a state taxpayer absent evidence of "some direct injury," id. (quoting Frothingham, 262 U.S. at 488, 43 S.Ct. at 601), i.e., a "measurable appropriation" of tax funds. Id. (discussing Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, (1947)). As Bible reading did not involve a "direct dollars-and-cents injury," the taxpayers lacked standing. Id. One commentator has interpreted Doremus as requiring a taxpayer to challenge an activity involving an expenditure of public funds that would not otherwise be made. As the teachers in Doremus would be paid their salaries whether or not they read from the Bible, the challenged practice did not injure the taxpayers. See Note, Taxpayers' Suits: A Survey and Summary, 69 Yale L.J. 895, 922 (1960). See also Bowen v. Kendrick, 108 S.Ct. at 2580 ("The AFLA is at heart a program of disbursement of funds pursuant to Congress' taxing and spending powers, and appellees' claims call into question how the funds authorized by Congress are being disbursed pursuant to the AFLA's statutory mandate.").

Although Doremus involved only state taxpayers, the pocketbook injury requirement also applies to municipal taxpayers, as Doremus' reference to Frothingham makes clear. For example, municipal taxpayers lack standing when they challenge a regulatory program that only incidentally involves expenditures of public funds. See e.g., Reich v. City of Freeport, 527 F.2d 666, 670 & n. 8 (7th Cir.1975) (challenge to police discharge procedures and other unconstitutional ordinances); Dash v. Mitchell, 356 F.Supp. 1292, 1298 (D.D.C.1972) (three-judge court) (D.C. taxpayers lack standing to challenge preventive detention statute; statute "serves primarily to 'regulate' "; expenditures to support administration of statute are " 'incidental' "), aff'd sub nom. Briscoe v. Kleindienst, 409 U.S. 808, 93 S.Ct. 164, 34...

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