Korioth v. Brisco, 75-2058

• Decision Date: 24 November 1975
• Docket Number: No. 75-2058,75-2058
• Citation: 523 F.2d 1271
• Parties: A. J. KORIOTH, Plaintiff-Appellant, v. Honorable Dolph BRISCOE et al., Defendants-Appellees, v. CITY OF FARMERS BRANCH, Movant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1271

523 F.2d 1271

A. J. KORIOTH, Plaintiff-Appellant, v. Honorable Dolph BRISCOE et al., Defendants-Appellees, v. CITY OF FARMERS BRANCH, Movant-Appellant.

No. 75-2058

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Nov. 24, 1975.

Doug McCallon, City Atty., Farmers Branch, Tex., for City of Farmers branch.

M. Wayne Tinkler, Austin, Tex., for A. J. Korioth.

Frank C. Cooksey, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

Appeals from the United States District Court for the Western District of Texas.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GOLDBERG, Circuit Judge:

A. J. Korioth is a United States citizen from Texas, a taxpayer, and a state legislator. He brought this action to challenge, as violative of the Federal and Texas constitutions, the establishment of regional planning agencies under a Texas statutory scheme. The City of Farmers Branch (the City) is a municipality which has participated in one of the regional planning agencies established under that scheme. The City sought to intervene as an additional plaintiff in Korioth's suit. The district court dismissed the action of Korioth for lack of standing and denied the City's motion to intervene. We agree that Korioth "alleged no injuries sufficient to give rise to a 'case or controversy'," and we find no clear abuse of discretion in the denial of the City's motion to intervene. We affirm the order.

I. STANDING

Plaintiff-appellant Korioth alleged in his complaint to the district court that Tex.Rev.Civ.Stat.Ann. art. 1011m (Supp.1974), in providing a means for formal cooperation between certain state regional planning agencies and the Republic of Mexico, ¹ contravened the United States Constitution's proscription against states entering into treaties with foreign governments. ² Korioth also alleged that the scheme violated the Texas constitution's implicit mandate that sub-units of government may embrace no more than one county. ³ In his later filed "Memorandum of Authorities in Opposition to Defendant's Motion to Dismiss," Korioth added the claim that federal monies funding the regional agencies were being illegally spent, since the federal program only authorized payments to agencies empowered under state or local law to perform such planning. ⁴ In this appeal from the district court's dismissal for lack of standing, Korioth argues that he has standing to litigate based on each of his statuses as a citizen, as a taxpayer, and as a legislator.

A. Citizen Korioth

The requirement that an individual have standing to litigate in federal courts is in part a derivative of the Constitution's limitation of the federal judicial power to "cases" and "controversies," U.S.Const. art. III, § 2, and in part the result of long favored prudential considerations. ⁵ Federal courts are not to render advisory opinions, but rather are to decide specific issues for parties with real disputes. ⁶ Cases are to be decided on the narrowest legal grounds available, ⁷ and relief is to be tailored carefully to the nature of the dispute before the court. ⁸

Although the Supreme Court has warned that generalizations about the law of standing are of dubious worth, ⁹ the currency of Baker v. Carr's often quoted formulation of the general question to be considered seems not to have been devalued:

Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.

369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678.

Recent decisions have indicated that in answering this question, a court's focus should be on whether the complaining party has alleged any " injury in fact" which distinguishes that party, in relation to the alleged violations, from the undifferentiated mass of the public. ¹⁰ The requirement that a complaining party allege a specific injury in fact appears to be necessary so that all of the above discussed policy objectives may be furthered although an irate citizen might vigorously pursue litigation challenging alleged governmental illegalities, a court cannot fashion a specific remedy without some finding of specific harm. The specific, distinct injury may be small, ¹¹ but some such injury must be alleged for the litigant to have standing.

Prior to 1974, there were some indications of the development of a doctrine whereby requirements for citizen standing in "public actions" would be quite minimal. ¹² Citizens able to show no specialized injury were held to have standing to bring a constitutional challenge against Congressmen's membership in the Armed Forces Reserves in Reservists Committee to Stop the War v. Laird, D.D.C.1971, 323 F.Supp. 833, Aff'd without opinion, 162 U.S.App. D.C. 19, 495 F.2d 1074 (No. 71-1535, Oct. 31, 1972). ¹³ The Supreme Court, however, reversed, emphasizing the requirement that plaintiffs must show a concrete injury which differentiates their interest in the case from that of all other citizens. Schlesinger v. Reservists Committee to Stop the War, 1974, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706. ¹⁴ Thus, the thin ice which may have supported generalized citizen standing to pursue "public actions" before Schlesinger seems to have melted with that case. ¹⁵

It is tautologically clear that a citizen who asserts only his citizen status as a basis for standing to pursue constitutional or statutory claims has not specified any injury which sets him apart from the mass of citizens who desire that the state adhere to the legal amenities of governance. If Korioth has standing, then, it must be based either on his status as a taxpayer or that as a legislator.

B. Taxpayer Korioth

The Supreme Court case which now marks the limit in allowing taxpayers Qua taxpayers standing to litigate a general constitutional claim is Flast v. Cohen, 1968, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, in which plaintiffs alleged that congressional appropriations providing funds to religious schools violated the establishment clause of the first amendment. The Flast Court considered the general question to be "whether there is a logical nexus between the status asserted and the claim sought to be adjudicated," and formulated the specific test for federal taxpayers as follows:

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8 of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. . . .

Id. at 102-03, 88 S.Ct. at 1954, 20 L.Ed.2d at 963.

Korioth objects to the use of local, state, and federal funds derived from his taxes in the administration of the Texas regional planning agency scheme, and urges that Flast'S two-part test supports his standing. He trips and falls, however, on the respective qualifications which Flast adds to each part of its test. Korioth is basically challenging an "incidental expenditure of tax funds in the administration of an essentially regulatory statute" and, by analogy to the federal situation in Flast, alleges "simply that the enactment is generally beyond powers delegated to" the state legislature rather than showing that "the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the" legislature's taxing and spending power. ¹⁶

That the rationale under which taxpayers were granted standing in Flast is an extremely limited one has become apparent with the Supreme Court's decisions in United States v. Richardson, ¹⁷ and in Schlesinger, supra, 418 U.S. at 227-229, 94 S.Ct. at 2935-2936, 41 L.Ed.2d at 722-23. We need not here decide what remains of the fading Flast doctrine, since Korioth would not have standing under the Flast test even if it were broadly construed.

C. Legislator Korioth

Having found the proffered legs of citizen and taxpayer standing to be infirm, we turn to Korioth's assertion that the crutch of his special status as a state legislator can support this action. Several decided cases have held that in certain circumstances a legislator, in that capacity, may have standing to challenge official actions. ¹⁸ Generally, these cases have focused on allegations that the challenged action undermined the effectiveness of the exercise of a specific power of the legislator. ¹⁹ Another basis for legislator standing has been found in the duty of the legislature to investigate the acts of the executive in relation to possible impeachment, ²⁰ although this basis for standing has been criticized. ²¹ Whatever the validity of these bases for legislator standing, they do not apply to Korioth he cannot allege that the effectiveness of his vote, or of any other legislative power he may have, has been impeded by the vote of a majority of the legislature to enact the regional planning scheme, nor by the action of the state executive in implementing it. No question of possible impeachment has been raised.

None of the cases has indicated that a legislator, simply by virtue of that status, has some special right to invoke judicial consideration of the validity of a statute passed over his objecting vote. ²² We refuse to go that far here. In the...