Henderson v. Stalder

• Decision Date: 29 March 2002
• Docket Number: No. 00-31171.,00-31171.
• Citation: 287 F.3d 374
• Parties: Russell J. HENDERSON, et al., Plaintiffs, Russell J. Henderson, Dorreen Keeler, Robert H. Loewy and Greater New Orleans Section of the National Council of Jewish Women, Plaintiffs-Appellees, v. Richard J. STALDER, Secretary, Department of Public Safety and Corrections and John Kennedy, State Treasurer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

287 F.3d 374

Russell J. HENDERSON, et al., Plaintiffs Russell J. Henderson, Dorreen Keeler, Robert H. Loewy and Greater New Orleans Section of the National Council of Jewish Women, Plaintiffs-Appellees, v. Richard J. STALDER, Secretary, Department of Public Safety and Corrections and John Kennedy, State Treasurer, Defendants-Appellants.

No. 00-31171.

United States Court of Appeals, Fifth Circuit.

March 29, 2002.

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Simon Lawrence Heller (argued), Brigitte Adrienne Amiti, Center for Reproductive Law & Policy, New York City, William E. Rittenberg, Rittenberg & Samuel, New Orleans, LA, for Plaintiffs-Appellees.

Roy A. Mongrue, Jr., Asst. Atty. Gen. (argued), Baton Rouge, LA, for Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before DAVIS and JONES, Circuit Judges, and BARBOUR,¹ District Judge.

BARBOUR, District Judge:

The Secretary of the Department of Public Safety and Corrections and the Treasurer of the State of Louisiana bring this appeal to challenge the Order of the district court which granted a preliminary injunction in favor of Appellees and thereby halted the implementation of Louisiana Revised Statute 47:463.61, which authorizes a prestige license plate bearing a "Choose Life" message. We find that the Appellees lacked standing to challenge the constitutionality of La.Rev.Stat. 47:463.61. We therefore reverse the district court, vacate its preliminary injunction and remand with instruction to dismiss the complaint.

I.

The Plaintiff-Appellees, Russell J. Henderson, Doreen Keeler, Robert H. Loewy, and Greater New Orleans Section of the National Counsel of Jewish Women ("NCJW")² instituted this suit against the Secretary of the Department of Public Safety and Corrections and the Treasurer of the State of Louisiana, seeking a declaration that La.Rev.Stat. 47:463.61 is unconstitutional and an injunction prohibiting its enforcement. The challenged law established a "Choose Life" automobile license plate for private automobiles, provided there are a minimum of one hundred applicants for the plate. The annual fee for the Choose Life plate is $25.00 which is paid in addition to the usual yearly motor vehicle licensing fee. An additional $3.50 handling fee is charged to offset administrative costs.

Under the statute, the $25.00 fee will be deposited into the state treasury and thereafter distributed based on recommendations of the "Choose Life" Advisory Council ("Council"). The Council, comprised of the president or designee of the American Family Association, the Louisiana Family Forum, and the Concerned Women of America organizations, is responsible for reviewing grant applications and making recommendations with regard to the manner in which funds should be distributed. Distribution of the funds generated by the Choose Life license plate must be made to tax-exempt organizations which provide "counseling and other services intended to meet the needs of expectant mothers considering adoption for their unborn child" or "to meet the needs of infants awaiting placement with adoptive parents." Organizations "involved in, or associated with counseling for, or referrals to, abortion clinics, providing abortion-related procedures, or pro-abortion advertising" are disqualified from receiving funds generated by the Choose Life plate.

Plaintiffs filed a lawsuit challenging the constitutionality of La.Rev.Stat. 47:463.61 in the United States District Court of the Eastern District of Louisiana. Specifically, they allege that the subject statute abrogates their right to free speech, constitutes an impermissible establishment of religion, and denies them their right to due process in violation of the First and Fourteenth Amendments to the United States Constitution. Plaintiffs sought a declaratory judgment that La.Rev.Stat. 47:463.61 is unconstitutional and an injunction against its enforcement. On August 23, 2000, a hearing on the Motion for Preliminary Injunction was held before United States District Judge Stanwood R. Duval, Jr. In the Order and Reasons, entered on August 29, 2000, the district court found that the plaintiffs had failed to show that a preliminary injunction should issue with regard to their Establishment Clause claim. The district court, however, found that the plaintiffs established a likelihood of success on the merits of their free speech claim.

Before the district court, plaintiffs argued that La.Rev.Stat. § 47:463.61 violates the First Amendment to the United States Constitution because it discriminates based on viewpoint by allowing only the "pro-life" viewpoint to be expressed via special license plates and pro-choice car owners are not given the option of expressing their view on their license plates. Defendants argued that the Choose Life license plate constitutes an expression of "state speech" and, therefore, did not create a forum for private speech. The district court rejected the argument of the defendants. The district court concluded that prestige license plates are "speech" for the purpose of First Amendment analysis and that they constitute a non-public forum thereby requiring the State to maintain view-point neutrality with regard to the messages displayed. The district court then concluded that as "the State has taken the position that [the `Choose Life'] message is its own ... it appears at this juncture that the State fails in its responsibility to provide a viewpoint-neutral forum, and [La.Rev.Stat. 47:463.61] will probably be found to be an unconstitutional violation of the First Amendment right to free speech."³

The district court also rejected the defenses raised by the defendants. In deciding the merits of defendants' ripeness argument, the court found that the case was ripe for adjudication as the State, by statutorily authorizing the display of prestige license plates, had created a non-public forum which allowed for viewpoint discrimination. On the defense of standing, the district court did not focus its analysis on whether plaintiffs had established standing to challenge the constitutionality of the Choose Life statute. Instead, the court held that: "Once free speech has been abridged in such a manner, there is no case law supporting the proposition that those individuals whose speech has been restrained in this particular forum must wait ... to have an opportunity to express an opposing viewpoint in that forum."⁴ As such, the court concluded it unlikely that the defenses raised by the defendants would be recognized.

The district court, having concluded that the plaintiffs had established a likelihood of success on the merits of their free speech claim and that it was unlikely that the defenses raised were cognizable, granted a preliminary injunction thereby (1) enjoining the enforcement and implementation of La.Rev.Stat. § 47:463.61 and (2) halting production of the Choose Life license plate. Defendants appeal from the order granting the preliminary injunction.

II. Standing

Under the dictates of Article III of the United States Constitution, federal courts are confined to adjudicating actual "cases" and "controversies." U.S. Const. art. III, § 2, cl. 1. Of the doctrines that have evolved under Article III, including standing, mootness, ripeness, and political question, the requirement that the litigant have standing is perhaps the most important. See Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). This doctrine:

[E]mbraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.

Id. 468 U.S. at 741, 104 S.Ct. 3315, 82 L.Ed.2d 556 (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982)). Standing, at its "irreducible constitutional minimum," requires a plaintiff "to demonstrate: they have suffered an `injury in fact'; the injury is `fairly traceable' to the defendant's actions; and the injury will `likely ... be redressed by a favorable decision.'" Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir.2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)). "[A]n injury in fact [is] an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136.

In the case sub judice, the plaintiffs allege different injuries all of which they contend arise because of the enactment of the Choose Life statute. It is on these injuries that standing must be predicated. We now consider whether any of the plaintiffs have alleged an injury in fact, which is fairly traceable to the Choose Life statute that will be redressed in the event that statute is enjoined and/or declared unconstitutional.⁵ We will discuss each basis for standing separately.

1. Taxpayer Standing

Plaintiffs Henderson, Keeler, Loewy, and LaMothe, all of whom allege that they pay income tax to the State of Louisiana, allege injury based on the use of their tax money (1) to make and distribute the Choose Life license plate and (2) for the administration of the Choose Life statute including the establishment and maintenance of the Choose Life Council and Fund. The United States Supreme Court has held that state taxpayers, like federal taxpayers, ordinarily lack a sufficient personal stake to challenge laws of general applicability, since their own injury is not distinct from that suffered by taxpayers in general. ASARCO Inc. v. Kadish, 490 U.S. 605, 614, 109...