Doe v. Tangipahoa Parish School Bd.
| Decision Date | 25 July 2007 |
| Docket Number | No. 05-30294.,05-30294. |
| Citation | 494 F.3d 494 |
| Parties | John DOE, Individually and as next friend of his minor children, James Doe and Jack Doe, Plaintiff-Appellee, v. TANGIPAHOA PARISH SCHOOL BOARD; Jimmie Richardson, Reverend, School Board Member, District A; Robert Potts, School Board Member, District B; Leonard Genco, School Board Member, District C; Al Link, School Board Member, District D; Don Williams, School Board Member, District E; Robert Caves, School Board Member, District F; Maxine Dixon, School Board Member, District G; Sandra Bailey-Simmons, School Board Member, District H; Carl Bardwell, School Board Member, District I; Louis Joseph, Superintendent, Tangipahoa Parish School System, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth F. Sills, Hammonds & Sills, Baton Rouge, LA, for Louisiana Schools Bds. Ass'n, Amicus Curiae.
Jay A. Sekulow, American Center for Law & Justice, Virginia Beach, VA, for American Center for Law and Justice, Amicus Curiae.
Joshua William Carden, Joshua Carden Law Firm PC, Weatherford, TX, for Family Research Council and Louisiana Family Forum-Attorneys Resource Council, Amici Curiae.
Steven W. Fitschen, National Legal Foundation, Virginia Beach, VA, for National Legal Foundation, Amicus Curiae.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, and OWEN, Circuit Judges.
EDITH H. JONES, Chief Judge, joined by E. GRADY JOLLY, JERRY E. SMITH, EMILIO M. GARZA, DeMOSS, EDITH BROWN CLEMENT, PRADO and OWEN, Circuit Judges:
After the court voted to rehear this case en banc, a review of the record prompted further inquiry, which we are bound to make,1 concerning the Does' standing to sue. The Supreme Court has admonished that,
This obligation to notice defects in a court of appeals' subject-matter jurisdiction assumes a special importance when a constitutional question is presented. In such cases we have strictly adhered to the standing requirements to ensure that our deliberations will have the benefit of adversary presentation and a full development of the relevant facts.
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (footnote omitted). Constitutional standing requires that the plaintiff personally suffered some actual or threatened injury that can fairly be traced to the challenged action and is redressable by the courts.2 Standing to sue must be proven, not merely asserted, in order to provide a concrete case or controversy and to confine the courts' rulings within our proper judicial sphere.
Standing to challenge invocations as violating the Establishment Clause has not previously been based solely on injury arising from mere abstract knowledge that invocations were said.3 The question is whether there is proof in the record that Doe or his sons were exposed to, and may thus claim to have been injured by, invocations given at any Tangipahoa Parish School Board meeting. As the dissenters agree, there is no basis for taxpayer standing. More to the point, there is no evidence of such exposure in the record of this case, which was "fully" tried on stipulations.4 Plaintiffs' counsel acknowledged both in supplemental letter briefing and oral argument to the en banc court that the proof deficiency was unintentional, and he urges us to infer that the Does attended school board meetings where an invocation occurred. Unfortunately, the minimal record in this case affords no basis for drawing that inference, if it were permitted, which it is not.5
Only three points need be made in response to the dissents. First, just as there is no evidentiary proof that any of the Does ever attended a school board session at which a prayer like those challenged here was recited, so, too, Judge Barksdale cites no authority to support his implied-admission theory of standing. It is contrary to the Supreme Court cases cited above. See supra notes 2 and 3. Interestingly, it also conflicts with an opinion by now-Justice Alito, which held, after a real trial on the merits, that plaintiffs had presented insufficient proof of their exposure to and personal offense from an allegedly unconstitutional civic Christmas display to support standing.6 ACLU-NJ v. Township of Wall, 246 F.3d 258, 266 (3d Cir. 2001). The opinion notes,
While we assume that the Millers disagreed with the 1999 display for some reason, we cannot assume that the Millers suffered the type of injury that would confer standing. As noted, "the party invoking federal jurisdiction bears the burden of establishing [standing] ... in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at successive stages of the litigation." Lujan, 504 U.S. at 561, 112 S.Ct. 2130, 119 L.Ed.2d 351. Mere assumption would not satisfy the plaintiffs' burden to prove an element of their cause of action at this stage of the litigation and it cannot satisfy their burden to prove standing.
Second, Judge Barksdale's dissent intimates that lower courts can infer standing from the Supreme Court's decision in similar Establishment Clause cases where the issue was not ruled on by the Court.7 This proposition is incorrect. Going back to Chief Justice Marshall, the Court has consistently held that it "is not bound by a prior exercise of jurisdiction in a case where [jurisdiction] was not questioned and it was passed sub silentio." United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S.Ct. 67, 97 L.Ed. 54 (1952)(Jackson, J.) (citations omitted); see also Steel Co., 523 U.S. at 91, 118 S.Ct. at 1011, Lewis, 518 U.S. at 351, 116 S.Ct. at 2180; Fed. Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88, 97, 115 S.Ct. 537, 542-43, 130 L.Ed.2d 439 (1994).
Finally, Judge Benavides relies on the pretrial order for the proposition that no "facts" relevant to the Does' standing were in dispute. Justice Alito's careful opinion again shows the way. This court can certainly "assume" that the Does may have been offended by an invocation at a school board meeting, if they attended one. Unfortunately, there is no correlation between their attendance and the prayers to which the parties have stipulated. It is not this court's fault that the connection between their attendance and allegedly unconstitutional activity is not made in the record.8 Moreover, Judge Benavides overlooks that Paragraph 8 of the "contested issues of fact" in the pretrial order states that "All issues of fact implicit in the contested issues of law" remain contested.
Without the requisite specifics, this court would be speculating upon the facts. This is something we cannot do, particularly in the standing context, where the facts must be proven, not merely asserted or inferred. See Lujan, 504 U.S. at 561, 112 S.Ct. at 2136. Notwithstanding the dissents, plaintiffs' counsel admitted both in briefing and in oral argument to the en banc court that the necessary proof is absent from the record. No amount of creative inferences from the pretrial order or "stipulations" can overcome this defect. As standing is not subject to waiver by the parties, see supra note 1, the Board's pretrial, and even post-trial, failures to contest standing cannot, ipso facto, create jurisdiction in federal court.
To find lack of standing at this late stage no doubt poses an inconvenience for the parties. On the other hand, it spares this court from issuing a largely hypothetically-based ruling on issues of broad importance to deliberative public bodies in this circuit and beyond.9 Finally, given the ideological nature of the case, it is not hard to conceive that a more concrete controversy may arise in the future.
The judgment of the district court is VACATED, and the case REMANDED WITH INSTRUCTIONS TO DISMISS.
Under Article III of the Constitution federal courts have the power to resolve only "cases" and "controversies." This constitutional limitation has manifested itself in the requirement that a plaintiff have standing, which requires a showing of (1) an injury in fact, (2) causation, and (3) redressibility. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).1 The importance of standing is underscored by the fact it "tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual...
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