Mueller v. Allen, Civ. No. 3-80-395.

• Decision Date: 13 May 1981
• Docket Number: Civ. No. 3-80-395.
• Parties: Van D. MUELLER, Individually and on behalf of the taxpayers of the State of Minnesota; June Noyes, Individually and on behalf of the taxpayers of the State of Minnesota, Plaintiffs, v. Clyde E. ALLEN, Jr., Commissioner of the Department of Revenue for the State of Minnesota, Defendant, and Dennis J. Berthiaume, Karen F. Berthiaume, Thomas W. Dzik, Mary J. Dzik, Edward F. Fujan, and Joleen A. Fujan, and Brenda B. Becker, Richard C. Hollingsworth, Marjorie Hollingsworth, Roger De Haan, and Dorothy De Haan, Each individually and on behalf of the taxpayers of the State of Minnesota, Intervenor-Defendants.
• Court: U.S. District Court — District of Minnesota

514 F. Supp. 998

Van D. MUELLER, Individually and on behalf of the taxpayers of the State of Minnesota; June Noyes, Individually and on behalf of the taxpayers of the State of Minnesota, Plaintiffs, v. Clyde E. ALLEN, Jr., Commissioner of the Department of Revenue for the State of Minnesota, Defendant and Dennis J. Berthiaume, Karen F. Berthiaume, Thomas W. Dzik, Mary J. Dzik, Edward F. Fujan, and Joleen A. Fujan and Brenda B. Becker, Richard C. Hollingsworth, Marjorie Hollingsworth, Roger De Haan, and Dorothy De Haan, Each individually and on behalf of the taxpayers of the State of Minnesota, Intervenor-Defendants.

Civ. No. 3-80-395.

United States District Court, D. Minnesota, Third Division.

May 13, 1981.

William I. Kampf, St. Paul, Minn., for plaintiffs.

William P. Marshall, Sp. Asst. Atty. Gen., St. Paul, Minn., for defendant Clyde E. Allen, Jr., Commissioner of the Minnesota Department of Revenue.

Gordon W. Shumaker, Meir, Kennedy & Quinn, St. Paul, Minn., for intervenor-defendants Dennis J. and Karen F. Berthiaume, Thomas W. and Mary J. Dzik, and Edward F. and Joleen A. Fujan; Timothy P. Quinn, Meir, Kennedy & Quinn, St. Paul, Minn., on brief.

John R. Kenefick, Briggs & Morgan, St. Paul, Minn., for intervenor-defendants Brenda B. Becker, Richard C. and Marjorie Hollingsworth, and Roger and Dorothy De Haan.

MEMORANDUM AND ORDER

RENNER, District Judge.

This action challenges the constitutionality of Minn.Stat. § 290.09(22) (1978), as violative of the First and Fourteenth Amendments to the Constitution of the United States. Plaintiffs assert that the challenged statute is a law advancing an establishment of religion and is in restraint of the free exercise of religion. Accordingly, plaintiffs seek a judgment by this Court invalidating the statute and an injunction against its enforcement by the State of Minnesota.

Initially, suit was brought by five individual plaintiffs on behalf of the taxpayers of the State of Minnesota. Pursuant to defendant Allen's motion, three of the plaintiffs were dismissed from the lawsuit. See Memorandum and Order, dated Oct. 14, 1980. Dismissal was based upon the doctrine of res judicata in that the three plaintiffs were found to have had an interest in M. C. L. U. v. Roemer, 452 F.Supp. 1316 (D.Minn.1978), an action that upheld the challenged statute against a constitutional challenge similar to the one now being advanced. This Court denied defendant's motion to dismiss the remaining plaintiffs, holding that Roemer was not a representative taxpayers' suit and, thus, did not bar the present taxpayers from bringing this action. The Court did not decide the stare decisis effect of Roemer since the factual record was, at that time, incomplete. At present, the factual basis of the case is not in dispute, although the parties differ as to inferences to be drawn and their legal consequences. Summary judgment is now appropriate.

I. FACTS

Intervenor-defendants Berthiaumes, Dziks, and Fujans contend, as a preliminary matter, that the affidavits of James A. Lee and Phillip C. Miller, submitted by plaintiffs, should not properly be considered. The Lee affidavit purports to reveal the results of his examination of certain records of the Minnesota Department of Education relating to amounts of tuition paid by public school children. This information is offered to support plaintiffs' statistical argument.

Defendants object to Lee's affidavit on the ground that it is hearsay and barred by Fed.R.Civ.P. 56(e) and Fed.R.Evid. 901 since the affidavit fails to show that Lee possesses any personal knowledge of the matters contained in the affidavit. Defendants also argue that the affidavit is barred by Fed.R. Evid. 1002, in that the originals of the documents have not been produced. Since Lee's affidavit purports to summarize portions of certain state records, defendants contend that such secondary evidence may not be submitted. Finally, defendants challenge the affidavit for failing to include sworn or certified copies of the documents and records referred to, thus contravening Fed.R. Civ.P. 56(e).

Miller's affidavit is objected to on the grounds that it is hearsay; also that it has not been authenticated as required by Fed. R.Civ.P. 56(e) and Fed.R.Evid. 901. Defendants contend it is not possible to determine from the affidavit whether Miller is competent to authenticate the exhibit; that since Miller has no connection with the Minnesota Department of Revenue, he lacks personal knowledge of the information he seeks to convey.

There may well be merit to defendants' objections, but, for purposes of this opinion, they are not being considered.

The challenged statute, section 290.09(22), authorizes Minnesota taxpayers to claim income tax deductions for their dependents' tuition, textbook, and transportation expenditures. The provision was originally enacted in 1955 and subsequently amended in 1976. Section 290.09(22) is a "true tax deduction" statute. It does not provide direct financial aid to its beneficiaries; it does not directly subsidize any activity; and it does not operate as a credit against a tax already determined. Qualifying expenditures are deductible only in their actual amounts and are subject to certain maximums. The deductions are subtracted from gross income and thus reduce the tax base. They result in a tax benefit only if the deduction moves the taxpayer into a lower tax bracket.

Deductions are subject to a maximum of $500 for each elementary school dependent and $700 for each secondary school dependent. There are three categories: Tuition; transportation; and textbooks.

Tuition includes:

1. Tuition in the ordinary sense.

2. Tuition to public school students who attend public schools outside their residence school districts.

3. Certain summer school tuition.

4. Tuition charged by a school for slow learner private tutoring services.

5. Tuition for instruction provided by an elementary or secondary school to students who are physically unable to attend classes at such school.

6. Tuition charged by a private tutor or by a school that is not an elementary or secondary school if the instruction is acceptable for credit in an elementary or secondary school.

7. Montessori School tuition for grades K through 12.

8. Tuition for driver education when it is part of the school curriculum.

Allowable deductions for transportation expenditures include the cost of transporting students in school districts that do not provide free transportation, the cost of transporting students who live in one district but attend school in another, and the cost of transporting students who attend school in their residence district but who do not qualify for free transportation because of proximity to their schools of attendance.

Textbook deductions include not only secular textbooks but also other necessary equipment, such as:

1. Cost of tennis shoes and sweatsuits for physical education.

2. Camera rental fees paid to the school for photography classes.

3. Ice skates rental fee paid to the school.

4. Rental fee paid to the school for calculators for mathematics classes.

5. Costs of home economics materials needed to meet minimum requirements.

6. Costs of special metal or wood needed to meet minimum requirements of shop classes.

7. Costs of supplies needed to meet minimum requirements of art classes.

8. Rental fees paid to the school for musical instruments.

9. Cost of pencils and special notebooks required for class.

II. DISCUSSION

A. The stare decisis effect of the Roemer case.

In Roemer, a three-judge district court upheld the constitutionality of the statute. That court held the statute to be neutral and neither advances nor impedes religious activity, that it benefits the parents of children attending both public and private schools, has received unchallenged historical acceptance, and is analogous to the long-recognized practice of tax deductible contributions to religious and charitable organizations. Roemer, 452 F.Supp. at 1321-22.

A court is not irretrievably bound by its own precedents, but in the interests of uniformity, stability, and certainty in the law, will follow the rule of law established in earlier cases unless clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent. 1B Moore's Federal Practice ¶ 0.4023.-1 (1965 & Supp. 1980-81). However, a court's decision is not binding upon courts of equal rank. Moreover, a specially convened three-judge district court is still a district court. Farley v. Farley, 481 F.2d 1009, 1012 (2d Cir. 1973) (decision of a three-judge district court is no more of a precedent than any other district court decision and is not binding on another district court).

Thus, this court is not bound by the Roemer ruling. But, this does not mean that the prior ruling is without value in the adjudication of this case. The same issues raised by the parties here were raised in Roemer. Plaintiffs contend that not only was Roemer incorrectly decided, but that subsequent case law and facts not before the Roemer court establish the unconstitutionality of the challenged statute. An examination of the underlying issues is thus required.

Only one aspect need be discussed in detail, since the new facts offered by plaintiffs relate only to the "primary effect" element of the Establishment Clause Test. The remaining elements were handled adequately in Roemer and plaintiff offers nothing new challenging its analysis and conclusions.

B. Whether section 290.09(22) violates the Establishment Clause of the First Amendment.

The Supreme Court has formulated a three-prong test by which the constitutionality of legislative action allegedly benefitting religious activity may be judged. In order to comport with the directive of the Establishment Clause such action must: (1) have a secular legislative purpose; (2) its principal or primary...