Freedom From Religion Found., Inc. v. Brewer, 1 CA-CV 12-0684
| Court | Court of Appeals of Arizona |
| Writing for the Court | DONN KESSLER |
| Parties | FREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin non-profit corporation; VALLEY OF THE SUN CHAPTER OF THE FREEDOM FROM RELIGION FOUNDATION, an Arizona non-profit corporation; MIKE WASDIN, an individual; MICHAEL RENZULLI, an individual; JUSTIN GRANT, an individual; JIM SHARPE, an individual; CRYSTAL KESHAWARZ, an individual; and BARRY HESS, an individual, Plaintiffs/Appellants, v. JANICE K. BREWER, Governor of the State of Arizona, Defendant/Appellee. |
| Decision Date | 11 June 2013 |
| Docket Number | 1 CA-CV 12-0684 |
FREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin non-profit corporation;
VALLEY OF THE SUN CHAPTER OF THE FREEDOM FROM RELIGION FOUNDATION, an Arizona non-profit corporation;
MIKE WASDIN, an individual; MICHAEL RENZULLI, an individual; JUSTIN GRANT, an individual;
JIM SHARPE, an individual; CRYSTAL KESHAWARZ, an individual;
and BARRY HESS, an individual, Plaintiffs/Appellants,
v.
JANICE K. BREWER, Governor of the State of Arizona, Defendant/Appellee.
1 CA-CV 12-0684
COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT B
Dated: June 11, 2013
Morris Law Firm, PLLC
By Richard W. Morris
Attorneys for Plaintiff/Appellant
Freedom from Religion Foundation, Inc
Surprise
Mark J. Victor, PC
By Mark J. Victor
Chandler
Page 2
Attorneys for Plaintiff/Appellant
Valley of the Sun Chapter of the Freedom from Religion
Foundation
Ballard Spahr LLP
By Joseph A. Kanefield
and Craig C. Hoffman
Phoenix
And
Office of Governor Janice K. Brewer
By Joseph Sciarrotta, Jr.
Attorneys for Defendant/Appellee Governor Brewer
Phoenix
KESSLER, Judge
¶1 This appeal requires us to determine whether Appellants1 have standing to seek injunctive and declaratory relief against Governor Janice Brewer. Under two provisions of the Arizona Constitution, Appellants challenged Governor Brewer's proclamations of a day of prayer, but the superior court found the Appellants lacked standing to bring their challenge and, dismissed the complaint. The record clearly demonstrates that Appellants did not allege or seek to allege taxpayer standing, did not allege any distinct and palpable harm to themselves, and that this case does not merit a waiver of Arizona's prudential standing requirements. Accordingly, we affirm the dismissal of the complaint.
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¶2 The individual Appellants are people who believe or do not believe in religion. The organizational Appellants are "membership organization[s] whose purpose[] [is] to promote the fundamental constitutional principle of separation of church and state and to educate on matters relating to nontheism."2 In January 2012, Appellants sought declaratory relief by filing a complaint alleging that the Governor's 2010 and 2011 prayer proclamations, appended to this decision as Appendix A, violated Article 2, Section 12 and Article 20, Par. 1, of the Arizona Constitution.3 Specifically, they alleged that the Governor's proclamations violated Article 2, Section 12 "when she used her government position, acting in her official capacity for which she was paid by public money, to appropriate and apply public
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money and property by endorsing religious worship, exercise or instruction, and supporting religious establishment."4 They also alleged that the proclamations "attacked the [individuals'] protected right" "from molestation in person or property on account of his or her mode of religious worship, or lack of [the] same" in violation of Article 20, Par. 1.5 They contended
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that the proclamations "make non-believers and many believers political outsiders by sending a message to non-believers that they are not welcome to fully participate in government processes," and the designation of a day of prayer "creates a hostile environment for non-believers and many believers, who are made to feel as if they are second class citizens." They also sought to enjoin the Governor from proclaiming any days of prayer in 2012 and thereafter.
¶3 The Governor moved to dismiss Appellants' complaint pursuant to Arizona Rule of Civil Procedure ("Rule") 12(b)(1) arguing that the superior court lacked subject-matter jurisdiction.6 Specifically, the Governor argued that Appellants: (1) lacked standing because a proclamation has no
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legal effect and can be ignored; (2) failed to articulate a particularized and palpable injury because there was no "alteration of conduct" alleged and a "perceived slight or feeling of exclusion" does not confer standing; (3) do not have representational standing because the Freedom From Religion Foundation's individual members lack standing; and (4) were seeking to pursue moot claims and/or an advisory opinion because past proclamations cannot be "undone" and the content of potential future proclamations cannot be predicted.
¶4 Despite the fact they had not alleged in the complaint that they were Arizona taxpayers, Appellants opposed the motion, asserting that "[t]his is more than a mere 'taxpayer' case." Rather, "[t]he issue goes far deeper than a few citizens opposed to some small portion of their tax dollars being illegally spent by the Governor in the service of her preferred mode of religious worship." Appellants asserted that they had standing because they alleged they suffered a "tangible loss" as articulated in the complaint:
[The] 2010 and 2011 proclamations . . . violated Article II, Section 12, of the Arizona Constitution when [the Governor] used her government position, acting in her official capacity for which she was paid by public money, to appropriate and apply public money and property by endorsing religious worship, exercise or instruction, and supporting religious establishment.
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¶5 In addition, Appellants maintained that they suffered personal harm "beyond merely being forced to pay for conduct with which they disagree" because the proclamations have "deprived them of their Constitutionally codified protections from molestation in religious matter[s]." Appellants also asserted that the proclamations make them "political outsiders" and "second class citizens." Finally, Appellants argued that the standing requirements should be waived because the controversy is important and the violations are likely to recur.
¶6 The superior court dismissed the complaint with prejudice after determining that Appellants "lack[ed] an injury sufficient to demonstrate that they have direct or representational standing," and "[i]n the absence of a particularized and concrete injury . . . [Appellants'] claims cannot go forward." The court stated that Appellants "have not alleged that they filed their claims in their capacity as taxpayers, nor have they shown a direct injury, pecuniary or otherwise." The court also held there were "[n]o exceptional circumstances . . . to support the Court's waiver of the standing requirement," and Appellants were seeking "an unlawful advisory opinion."
¶7 Appellants timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (Supp. 2012).
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¶8 Both parties re-urge the arguments they asserted below. Subject-matter jurisdiction and standing are issues of law, which we review de novo. Mitchell v. Gamble, 207 Ariz. 364, 367, ¶ 6, 86 P.3d 944, 947 (App. 2004) (subject-matter jurisdiction); Robert Schalkenbach Found. v. Lincoln Found., Inc., 208 Ariz. 176, 180, ¶ 15, 91 P.3d 1019, 1023 (App. 2004) (standing); Hill v. Peterson, 201 Ariz. 363, 365, ¶ 5, 35 P.3d 417, 419 (App. 2001). We also review a dismissal of a complaint for a lack of subject-matter jurisdiction de novo. See Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). We will "assume the truth of the well-pled factual allegations and indulge all reasonable inferences therefrom."7 Cullen v. Auto-Owners Ins. Co. , 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008); see also Jeter v. Mayo Clinic Ariz. , 211 Ariz. 386, 389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005). However, "we do not accept as true allegations consisting of conclusions of law, inferences or deductions that are not necessarily implied by well-pleaded facts, unreasonable inferences or unsupported conclusions from such facts, or legal
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conclusions alleged as facts." Id.; see also Cullen, 218 Ariz. at 419, ¶ 7, 189 P.3d at 346. "[C]onclusory allegations of law and unwarranted inferences will not defeat an otherwise proper[ly] [filed] motion to dismiss." Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007) (internal quotation marks omitted).
I. Standing
¶9 In analyzing the standing issue, we are faced with a paucity of Arizona precedent applying standing principles to the two constitutional issues raised. Accordingly, we will summarize and apply general Arizona standing principles and, to the extent they are consistent with Arizona law, look to federal precedent on standing for Establishment Clause purposes.
¶10 Arizona courts "are not constitutionally constrained to decline jurisdiction based on lack of standing." Sears v. Hull, 192 Ariz. 65, 71, ¶ 24, 961 P.2d 1013, 1019 (1998). Arizona, however, has...
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