Foremaster v. City of St. George, No. 88-1235

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before HOLLOWAY; EUGENE A. WRIGHT
• Citation: 882 F.2d 1485
• Parties: Phillip L. FOREMASTER, Plaintiff-Appellant, v. CITY OF ST. GEORGE, a political subdivision of the State of Utah, Defendant-Appellee.
• Decision Date: 03 August 1989
• Docket Number: No. 88-1235

Page 1485

882 F.2d 1485 Phillip L. FOREMASTER, Plaintiff-Appellant,
v.
CITY OF ST. GEORGE, a political subdivision of the State of
Utah, Defendant-Appellee. No. 88-1235. United States Court of Appeals,
Tenth Circuit. Aug. 3, 1989.
Rehearing Denied Sept. 28, 1989.

Page 1486

Brian M. Barnard, Salt Lake City, Utah, R. Clayton Huntsman, St. George, Utah, C. Dane Nolan, Utah Legal Clinic Foundation, Salt Lake City, Utah, for plaintiff-appellant.

T.W. Shumway, St. George City Atty., Steven E. Snow, Snow, Nuffer, Engstrom & Drake, St. George, Utah, James E. Mitchem, Mitchem & Mitchem, Denver, Colo., for defendant-appellee.

Before HOLLOWAY, Chief Judge, and WRIGHT ^* and BALDOCK, Circuit Judges.

EUGENE A. WRIGHT, Senior Circuit Judge.

We consider here the legality of a subsidy given by a municipal utility to a Mormon temple and the legality of a city's use of a logo depicting the Mormon temple.

BACKGROUND

With a population of 11,350 in 1980, St. George is the largest city in southern Utah. Local tradition holds that Brigham Young dedicated the spot where the St. George Temple of the Church of Latter Day Saints now stands. ¹ This was the first Mormon temple completed in the West. Its lightened sandstone color and interesting architecture add a "striking feature" to the landscape. James E. Talmage, The House of The Lord (1976) at 179. A visitors center is located on the public grounds surrounding the Temple. 263,291 persons toured the center in 1985.

Since 1942, the Utility Department of the city has helped defray the cost of exterior lighting of the Temple. Each month the City issued a credit on the temple's electric bill, in effect paying for its late night illumination. In later years this credit was approximately $180 per month.

The City also has used an official logo depicting the temple. The upper half contains a setting sun, a cluster of grapes and the motto "Where the Summer Sun Spends the Winter." The lower half contains a hill with the word "Dixie", a golf course and a sketch of the temple. (See Appendix). The City displays the logo on a plaque in the main foyer of City Hall, on two directional signs near the public parking lot of the building, and on about 85 or two-thirds of its vehicles.

In October 1985, Foremaster brought this action alleging that the subsidy and logo violated the Establishment Clause of the First Amendment. To reduce tension in the community, the City Council terminated the electric subsidy in November 1986. Finding that he lacked standing, the

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district court dismissed the portion of Foremaster's complaint that addressed the subsidy. ² It also denied his motion for attorneys fees. Foremaster v. City of St. George, 687 F.Supp. 548, 551-52 (D.Utah 1987).

In February 1987, the court denied his motion for summary judgment on the logo issue. Foremaster v. City of St. George, 655 F.Supp. 844, 852 (D.Utah 1987). In December, it dismissed his complaint on the use of the logo, finding that it did not violate the Establishment Clause. 687 F.Supp. at 549.

Foremaster appeals the court's ruling that he lacked standing to challenge the electric subsidy and the denial of his request for attorneys fees. He also appeals the court's finding that the use of the logo does not violate the Establishment Clause. We have jurisdiction under 28 U.S.C. Sec. 1291.

ANALYSIS

I. Electric Subsidy

We decide first whether the plaintiff Phillip Foremaster had standing to challenge the subsidy and, if so whether he prevailed for purposes of attorneys fees under 42 U.S.C. Sec. 1988.

A. Standing

Article III requires that a litigant have standing to bring a federal claim. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). At a minimum, a plaintiff must establish a personal stake in the outcome sufficient to assure the "concrete adverseness" of the issue. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1961).

To demonstrate standing, a plaintiff must allege actual or threatened personal injury, fairly traceable to the defendant's unlawful conduct and likely to be redressed by a favorable decision of the court. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758; Bell v. Little Axe Ind. School Dist. No. 70, 766 F.2d 1391, 1398 (10th Cir.1985).

In addition to the Article III requirements, the Court demands that the plaintiff assert his own rights, not those of a third party; his claim not be a "generalized grievance more appropriately addressed in the representative branch"; and his complaint fall within the zone of protection intended by the law. Allen, 468 U.S. at 751, 104 S.Ct. at 3324; Valley Forge, 454 U.S. at 474-75, 102 S.Ct. at 759.

The alleged injury must be an "injury in fact, economic or otherwise." Assoc. of Data Processing Service Org. Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1969). It 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 (1978) (citing 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 or hypothetical. Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 1664-65, 75 L.Ed.2d 675 (1983).

Foremaster alleged that he suffered economic injury because the subsidy caused him to pay higher rates for electricity. The district court found that because he did not have an electric utility account with the City he could not have suffered economic harm. We disagree.

He suffered a "distinct and palpable" injury. Revenue from the sale of electricity helped subsidize the lighting of the Mormon temple. To the extent that this subsidy diminished total revenues for the City's Utility Department, the Utility Department and the purchasers of municipal electricity are less well off and those purchasers may very well pay higher rates. ³

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Foremaster bought electric power. For over two years before April 1985, he maintained an electric utility account with the City. From April 1985 to June 1986, he lived in a mobile home in the City and paid a monthly rental fee that included electricity. He then lived in an apartment until August 1987, paying his roommate half of the electric bill. He also leased office space for his law practice which included payments for electricity. Cf. Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1975) (physicians have standing to challenge constitutionality of abortion regulations because regulations had an economic impact on their practice). Foremaster suffered an economic injury.

The alleged injury must also be fairly traceable to the challenged action, Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1975); Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205; that is, standing requires a showing of causation. Allen, 468 U.S. at 752, 104 S.Ct. at 3325. Foremaster's injury can be traced to the subsidy. Had the City collected the cost of free electricity provided to the temple, the revenues of the Utility would have been enhanced, eliminating the need for purchasers of electricity, including Foremaster, to pay for the amount used by the temple.

Standing requires that a favorable court ruling would likely result in actual relief from the injury. Allen, 468 U.S. at 751, 753 n. 19, 104 S.Ct. at 3324, 3325 n. 19; Simon, 426 U.S. at 38, 41, 96 S.Ct. at 1924, 1925. An injunction to stay payment of the City's subsidy would have redressed Foremaster's injury.

We conclude that he suffered economic harm from the City's electric subsidy to the temple and had standing to challenge it. ⁴

B. Attorneys Fees

Forty-two U.S.C. Sec. 1988 provides attorneys fees to a "prevailing party." Even though there was no final judicial determination, Foremaster requested fees because the City terminated the subsidy. The district court found incorrectly that he did not prevail because he lacked standing.

A plaintiff may prevail in the absence of a judicial determination on the merits. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1979). In such circumstances, we have adopted the catalyst test to determine prevailing party status for attorneys fees. A plaintiff must show "(1) that [the] lawsuit is causally linked to securing the relief obtained, and (2) that the defendant's conduct in response to the lawsuit was required by law." J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1473 (10th Cir.1985) (citing Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978)); Luethje v. Peavine School Dist. of Adair County, 872 F.2d 352, 354 (10th Cir.1989).

The lawsuit need not have been the sole reason for prompting the City to terminate the electric subsidy but must have been a "substantial factor or a significant catalyst." Supre v. Ricketts, 792 F.2d 958, 962 (10th Cir.1986); Luethje, 872 F.2d at 354 (defendant's change in policy was "to quell the disharmony caused by plaintiff's complaints"). The district court found specifically that the City Council terminated the subsidy to reduce tension in the community and to save time and expense of litigating Foremaster's lawsuit. The finding was not clearly erroneous.

The catalyst test also requires that Foremaster show that he would have prevailed on the merits. He alleged that the electric subsidy violated the Establishment Clause. We review de novo the legal basis for terminating the subsidy. See Ricketts, 792 F.2d at 961.

The Establishment Clause mandates complete government neutrality toward religion. Wallace v. Jaffree, 472 U.S. 38, 60, 105 S.Ct. 2479, 2491, 86 L.Ed.2d 29 (1985).

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It proscribes "sponsorship, financial support, and active involvement of the sovereign in religious activity." School Dist. of City of Grand...