Schmidt v. Cline

• Decision Date: 06 December 2000
• Docket Number: No. 00-4138-SAC.,00-4138-SAC.
• Citation: 127 F.Supp.2d 1169
• Parties: Mary Lou SCHMIDT and Darlene Stearns, Plaintiffs, v. Rita CLINE, Shawnee County Treasurer, Defendant.
• Court: U.S. District Court — District of Kansas

127 F.Supp.2d 1169

Mary Lou SCHMIDT and Darlene Stearns, Plaintiffs, v. Rita CLINE, Shawnee County Treasurer, Defendant.

No. 00-4138-SAC.

United States District Court, D. Kansas.

December 6, 2000.

Lisa Nathanson, American Civil Liberties Union of Kansas & Western Missouri, Kansas City, MO, for Plaintiffs.

Richard V. Eckert, Office of Shawnee County Counselor, Topeka, KS, Francis J. Manion, The American Center for Law and Justice-Midwest, New Hope, KY, for Defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

This first amendment freedoms case is before the court on defendant Rita Cline's motion to dismiss, or in the alternative for summary judgment, (Dk.8), and plaintiffs Mary Lou Schmidt and Darlene Stearns' motion for summary judgment (Dk.11). For the reasons set forth herein, the court finds that plaintiffs lack standing to pursue this case, that some of plaintiffs' claims are moot, that plaintiff's complaint fails to state a claim of an establishment clause or free speech clause violation, and that defendant is entitled to an award of attorneys' fees as the prevailing party.

Although both parties have asked for summary judgment, neither has complied with the applicable rules of the court for such motions and memoranda in support thereof. See e.g., D.Kan. Rule 7.1, 56 .1. Further, only two documents outside the pleadings have been submitted, constituting an insufficient factual record for purposes of summary judgment. Accordingly, the court will treat defendant's motion solely as a motion to dismiss, and plaintiffs' cross motion and response solely as a response to defendant's motion to dismiss.

Standards for Motions to Dismiss

Defendant's motion is brought pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.¹

Dismissal of a claim under Rule 12(b)(6) is appropriate only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him to relief, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), or when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, see Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir.1998), and views all reasonable inferences from those facts in favor of the plaintiff, see Intercon, Inc. v. Bell Atlantic, 205 F.3d 1244, 1247 (10th Cir.2000). Although these rules of construction place a heavy burden on the movant, this burden is easily met in the present case.

Relevant Facts

The facts relative to this decision are few and undisputed. Defendant Rita Cline was elected to the position of, and now serves as, the Shawnee County Treasurer. For some unspecified period of time prior to August 30, 2000, she displayed, in the offices of the County Treasurer, posters bearing the words "In God We Trust." Although not included in the record before this court, those posters are alleged to have measured 11 by 14 inches, to have had the word "God" printed in red letters larger than the black printing used for the other words thereon, and to have made a "barely visible" reference to that phrase as being the national motto. (Dk.1, Complaint, p. 4).

In April of 2000, plaintiff Schmidt contacted the defendant's office to express her concern about the posters bearing the words "In God We Trust." (Dk.1, Complaint, p. 4). When defendant returned her call, plaintiff Schmidt explained that "she is a Pagan and ... was offended by the religious message of the posters," and asked that they be removed. (Id., p. 5.)

Thereafter, Cline is alleged to have written a letter to plaintiff Schmidt on defendant's official letterhead and in her official capacity which questioned plaintiff Schmidt's integrity and patriotism, criticized her religious beliefs and lifestyle, and revealed that defendant's motive for hanging the posters in question was religious. (Id.) No copy of any letter is included in the record before this court. Defendant is alleged to have taken certain other acts which plaintiffs characterize as a "campaign of evangelism, proselytization, and distribution of religious propaganda" in defendant's capacity as Shawnee County Treasurer. (Id., p. 6-7).

Plaintiffs brought suit on August 30, 2000, seeking only preliminary and permanent injunctive relief.² Although plaintiffs stated in their complaint that they would "file an additional Motion for Preliminary Injunction and Memorandum in Support of Motion for Preliminary Injunction in conjunction with the filing of this Complaint," (Dk.1, Complaint, p. 10), to date no such motion or memorandum has been filed.

After plaintiffs filed this case, the posters complained of were removed from defendant's office, and replaced by other posters. (Dk. 9 attachment, Cline affidavit). These posters, currently on display in the County Treasurer's office, include the motto, "In God We Trust," but print the word "God" in the same color and size as all other words in the national motto, and make a larger reference than did the previous posters to the fact that this is the "U.S. National Motto Passed by Congress July 30, 1956.") (Dk.9, Exh. A).

Plaintiffs' Standing

This court has an independent duty to inquire into its jurisdiction over a dispute, and the issue of standing is part of that inquiry. Phelps v. Hamilton, 122 F.3d 1309, 1315-16 (10th Cir.1997). To satisfy the requirements for standing for injunctive relief, plaintiff must demonstrate: 1) that he will suffer an injury in fact which is both concrete and particularized and actual or imminent, not conjectural or hypothetical; 2) that the conduct complained of will cause the injury alleged; and, 3) that it is likely, not speculative, that the injury will be prevented by a favorable decision. Bear Lodge Multiple Use Ass'n v. Babbitt, 175 F.3d 814, 821 (10th Cir.1999), cert. denied, 529 U.S. 1037, 120 S.Ct. 1530, 146 L.Ed.2d 345 (2000), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

It is well established that standing under the First Amendment may be predicated on non-economic injury.³ Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 486, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). When non-economic injury is alleged, as here, the Supreme Court requires that plaintiffs be "directly affected by the laws and practices against which their complaints are directed." Id., 454 U.S. at 486 n. 22, 102 S.Ct. 752 (quoting School District of Abington Tp. v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)). No standing exists where a plaintiff claims that the Constitution has been violated, but claims nothing else. Valley Forge, 454 U.S. at 485, 102 S.Ct. 752 ("the psychological consequence presumably produced by observation of conduct with which one disagrees ... is not an injury sufficient to confer standing under Art. III....").

The Tenth Circuit has subsequently confirmed that standing in cases such as this requires a plaintiff to allege a direct, personal injury resulting from the challenged conduct. See Foremaster v. City of St. George, 882 F.2d 1485, 1490-91 (10th Cir. 1989). In Foremaster, the plaintiff worked in a city that displayed a logo containing a Mormon temple and was "directly confronted by the logo on a daily basis" because it appeared on city vehicles. There, the plaintiff alleged that the "visual impact of seeing that Temple on a daily basis as part of an official emblem ... has and continues to greatly offend, intimidate, and affect me." Id. at 1490-91.

Although the Tenth Circuit acknowledged disagreement among the Courts of Appeals about whether Valley Forge allowed standing to a plaintiff alleging direct injury by being exposed to a state symbol that offends his beliefs, 882 F.2d at 1490, it held that "an allegation of direct personal contact with the offensive action alone" was sufficient. Thus, it is not necessary for a plaintiff to allege that "he has altered his behavior as a consequence" of the offensive action. 882 F.2d at 1490.

Plaintiff Stearns

Here, the complaint names Darlene Stearns as a plaintiff, but reflects no contact whatsoever between plaintiff Stearns and any of the events alleged in the complaint. Instead, it merely alleges that Stearns lives in Topeka, is a member of the Board of Directors of the ACLU of Kansas and Western Missouri, and objects to defendant's acts. (Dk.1, Complaint, p. 6-7). The complaint fails to allege that plaintiff Stearns has ever seen the posters in the county treasurer's office, has ever spoken to the defendant about them or about any other matter, has ever received any communication from the defendant with or without religious content, or that the defendant has ever made any comments about her.

Further, the complaint fails to include any allegations that either plaintiff continues to suffer any emotional, psychological, spiritual, or other non-economic harm from defendant's alleged acts. Although both plaintiffs state their objection to defendant's acts, "standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy." Bear Lodge, 175 F.3d at 821 (denying standing and dismissing establishment clause claims where plaintiffs failed to allege any personal injury suffered by them as a consequence of the alleged constitutional error.)

Plaintiff Stearns neither identifies any personal injury she suffered a consequence of the alleged constitutional error, nor alleges any direct personal contact with the offensive action. Plaintiff Stearns thus fails to demonstrate injury in fact, and lacks standing to pursue this case.

Plaintiff Schmidt

Plaintiff Schmidt alleges that she is a pagan, that she told defendant she was offended by the "religious message" of the posters, that she...