Freedom from Religion Foundation, Inc. v. Olson

• Citation: 566 F.Supp.2d 980
• Decision Date: 16 July 2008
• Docket Number: Case No. 1:07-cv-043.
• Parties: FREEDOM FROM RELIGION FOUNDATION, INC., Dorothy Manley, Ken Mischka, Judy Mischka, John Ford, and Deidre Godycki, Plaintiffs, v. Carol K. OLSON, in her official capacity, Lisa Bjergaard, in her official capacity, Wayne Sanstead, in his official capacity, Daniel P. Richter, in his official capacity, and Mary Hermanson, in her official capacity, Defendants.
• Court: U.S. District Court — District of North Dakota

566 F.Supp.2d 980

FREEDOM FROM RELIGION FOUNDATION, INC., Dorothy Manley, Ken Mischka, Judy Mischka, John Ford, and Deidre Godycki, Plaintiffs, v. Carol K. OLSON, in her official capacity, Lisa Bjergaard, in her official capacity, Wayne Sanstead, in his official capacity, Daniel P. Richter, in his official capacity, and Mary Hermanson, in her official capacity, Defendants.

Case No. 1:07-cv-043.

United States District Court, D. North Dakota, Southwestern Division.

July 16, 2008.

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Richard Bolton, Boardman Suhr Curry & Field LLP, Madison, WI, for Plaintiffs.

Douglas Alan Bahr, Attorney General's Office, Bismarck, ND, Bryan L. Van Grinsven, McGee Hankla Backes & Dobrovolny PC, Minot, ND, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

DANIEL L. HOVLAND, Chief Judge.

In this action, the Plaintiffs contend that the Defendants, heads of various state and county agencies, improperly direct taxpayer funds to the support of religion in violation of the Establishment Clause of the First Amendment and 42 U.S.C. § 1983.

Before the Court is a Motion to Dismiss filed by defendants Carol K. Olson, Lisa Bjergaard, and Wayne Sanstead (State of North Dakota) on December 4, 2007, and a Motion to Dismiss filed by defendants Daniel P. Richter and Mary Hermanson on December 24, 2007. See Docket Nos. 9 and 12. The Plaintiffs filed a response in opposition to the State of North Dakota's motion on January 14, 2008. See Docket No. 20. The State of North Dakota filed a reply brief on January 18, 2008. See Docket No. 21. On January 30, 2008, the Plaintiffs filed a response in opposition to Richter and Hermanson's motion. See Docket No. 24. Richter and Hermanson filed a reply brief on February 6, 2008. See Docket No. 25. The Court grants the Defendants' motions to dismiss for the reasons set forth below.

I. BACKGROUND

The plaintiff, Freedoih From Religion Foundation, Inc., is a Wisconsin corporation with its principal office in Madison, Wisconsin. Freedom From Religion Foundation members are opposed to the government endorsement of religion. Each individual plaintiff is a resident of North Dakota and is a member of the Freedom From Religion Foundation. Dorothy Manley is a resident of Mandan, Morton County; Ken Mischka and Judy Mischka are residents of Valley City, Barnes County; and John Ford and Deidre Godycki are residents of Rugby, Pierce County.

Defendant Carol K. Olson is the Executive Director of the North Dakota Department of Human Services. Defendant Lisa Bjergaard is the Director of the Division of Juvenile Services within the North Dakota Department of Corrections and Rehabilitation. Defendant Wayne Sanstead is the North Dakota Superintendent of Public Instruction. Defendant Daniel P. Richter is the Director of the Ward County Social Services Department. Defendant Mary Hermanson is the Director of the Pierce County Social Services Department.

The North Dakota Department of Human Services and the North Dakota Department of Public Instruction are public agencies funded with North Dakota taxpayer appropriations and appropriations from the federal government. The North Dakota Division of Juvenile Services is a public agency funded with North Dakota taxpayer appropriations. The Ward County Social Services Department and the Pierce County Social Services Department are public agencies that are funded with North Dakota taxpayer appropriations and local taxpayer appropriations.

The Dakota Boys and Girls Ranch, with locations in Minot, Fargo, and Bismarck, North Dakota, provides residential treatment and educational services to children referred for treatment by North Dakota government agencies. See Docket No. 6, ¶ 21. North Dakota agencies that refer children in their custody to the Dakota Boys and Girls Ranch are responsible for paying for the care, treatment, and education of each child. See Docket No. 6, ¶ 45. The Dakota Boys and Girls Ranch, a publicly accredited Christian organization, receives taxpayer appropriations pursuant to disbursement programs authorized by the North Dakota Legislative Assembly. See Docket No. 6, ¶¶ 21-52. The Defendants oversee and are responsible for the disbursement of taxpayer appropriations, including appropriations that are used to pay for the care, treatment, and education of children housed at the Dakota Boys and Girls Ranch. See Docket No. 6, ¶ 53.

The Plaintiffs filed a second amended complaint on October 18, 2007. See Docket No. 6. The Plaintiffs contend that the Defendants' disbursements of taxpayer appropriations to the Dakota Boys and Girls Ranch violate "the fundamental principle prohibiting government endorsement of religion by disbursing taxpayer appropriations for the operation of a faith-based organization that includes the integration of religion as an inherent component of services provided." See Docket No. 6, ¶ 63. The Plaintiffs seek the following relief:

1) for a declaration that the Defendants' actions violate the Establishment Clause of the First Amendment to the United States Constitution and 42 U.S.C. § 1983;

2) for an order enjoining the Defendants from continuing to refer children to the Dakota Boys and Girls Ranch to receive services paid for with taxpayer appropriations, if religion remains integrated as part of those services 3) for an order enjoining the Defendants from using state and county funds to promote, advance, or endorse the establishment of religion, including disbursements made to the Dakota Boys and Girls Ranch;

4) for a judgment awarding the Plaintiffs further relief as the Court deems just and equitable; and

5) for a judgment awarding the Plaintiffs the reasonable costs, disbursements, and attorneys' fees allowed by law, including pursuant to 42 U.S.C. § 1988.

See Docket No. 6, ¶ 75.

The Defendants did not file answers to the Plaintiffs' second amended complaint. The State of North Dakota filed a motion to dismiss for lack of subject matter jurisdiction on December 4, 2007, and on December 24, 2007, Richter and Hermanson filed a motion to dismiss for lack of subject matter jurisdiction. See Docket Nos. 9 and 12.

The Defendants contend that the Plaintiffs do not have standing to^bring this action. The State of North Dakota contends that the Plaintiffs lack standing because they do not identify a specific act or appropriation that expressly authorizes or directs public entities to refer children to, or pay any funds to, the Dakota Boys and Girls Ranch. See Docket No. 10, p. 12. The State of North Dakota also argues that the Plaintiffs only allege the wrongful allocation of taxpayer appropriations made by executive branch officials, which does not grant the Plaintiffs standing to sue. See Docket No. 10, p. 14. Similarly, Richter and Hermanson contend that the Plaintiffs lack standing because they have challenged the executive expenditure of taxpayer appropriations instead of challenging the appropriation of taxes by the North Dakota Legislative Assembly. See Docket No. 13, p. 8.

The Plaintiffs argue that they have standing to sue the State of North Dakota because they are challenging the disbursement of taxpayer appropriations "made to fund legislatively-authorized social service programs." See Docket No. 20, p. 16. The Plaintiffs contend that they have standing to sue Richter because Ward County uses state taxpayer appropriations to fund the Dakota Boys and Girls Ranch. See Docket No. 24, p. 7. The Plaintiffs contend that plaintiffs Ford and Godycki have standing to sue Hermanson due to their status as municipal taxpayers. See Docket No. 24, p. 3.

II. LEGAL DISCUSSION

A. STANDARD OF REVIEW

The purpose of a motion to dismiss "is to test the formal sufficiency of the statement of the claim for relief; the motion is not a procedure for resolving a contest between the parties about the facts of the substantive merits of the plaintiffs case." 5B Wright & Miller, Federal Practice and Procedure § 1356 (2004). When deciding on a motion to dismiss, the issue for the Court is not whether the plaintiff will ultimately prevail but rather if the plaintiff is entitled to offer evidence to support its claims. See Thomson v. Olson, 866 F.Supp. 1267, 1270 (D.N.D.1994). A motion to dismiss should be denied if the complaint is legally sufficient and if the plaintiff can conceivably prove a set of facts to support the claim that would entitle it to relief. See United States v. Dairyland Ins. Co., 485 F.Supp. 539, 542 (D.N.D.1980) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

B. STANDING

It is well-established that in every federal case, the party bringing a lawsuit must establish standing to prosecute the action. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). The question of standing is whether the plaintiff is entitled to have a court decide the merits of the dispute. "The doctrine of standing is `an essential and unchanging part of the case-or-controversy requirement of Article III,' Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), which itself `defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.'" Ne. Florida Chapter of the Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).

Three requirements constitute the "irreducible constitutional minimum" of standing. A plaintiff must first demonstrate an injury-in-fact that is concrete, distinct and palpable, and actual or imminent. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 225, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). A plaintiff must then establish that there is a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the defendant's conduct and not...