Vietnam Veterans Against the War v. Veterans Memorial Auditorium Commission

• Decision Date: 17 October 1973
• Docket Number: No. 55645,55645
• Parties: VIETNAM VETERANS AGAINST THE WAR and Larry Duncan, Appellees, v. VETERANS MEMORIAL AUDITORIUM COMMISSION et al., Appellants, City of Des Moines, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 333

211 N.W.2d 333

VIETNAM VETERANS AGAINST THE WAR and Larry Duncan, Appellees, v. VETERANS MEMORIAL AUDITORIUM COMMISSION et al., Appellants City of Des Moines, Iowa, Appellant.

No. 55645.

Supreme Court of Iowa.

Oct. 17, 1973.

Rehearing Denied Dec. 13, 1973.

William D. Groteluschen, City Sol., Des Moines, for appellant City of Des Moines, and James P. Irish, Altoona, for remaining appellants.

William L. Kutmus and Gordon E. Allen, Des Moines, for appellees.

Considered en banc.

MOORE, Chief Justice.

As authorized by Code chapter 37, the citizens of the City of Des Moines by vote approved construction of the Veterans Auditorium. City bonds were issued to pay the costs thereof. It was built and for many years has been operated entirely as a City of Des Moines project. Each named defendant commissioner is a resident of Des Moines.

Plaintiff's action contests the constitutionality of section 37.10 which provides:

'Each such commissioner shall be an honorably discharged soldier, sailor, or marine of the United States, selected in the following manner:

'Within sixty days after the election, each post of the Grand Army of the Republic, Spanish-American War Veterans, Veterans of World War I, and the American Legion, Disabled American Veterans of the World War, Veterans of Foreign Wars of the United States, Marine Corps League and American Veterans of World War II (AMVETS) in the county, city, or town, as the case may be, shall appoint three delegates who shall, within ninety days after such election, meet in convention in the county, city, or town, as the case may be, and by ballot select five commissioners, whose names shall be forthwith furnished to the board of supervisors, or the city of town council, as the case may be, whereupon said board of supervisors or city or town council shall by resolution appoint them as such commissioners.'

Defendants and intervenor, City of Des Moines in addition to denying the allegations of plaintiffs' petition denied plaintiffs' standing to maintain this action.

The trial court held Code section 37.10 unconstitutional, the defendant commissioners had been elected by an unconstitutional method and that at the next regularly scheduled election to select commissioners all veterans of service in the United States Armed Forces were entitled to vote. In other words whether honorably or dishonorably discharged all veterans regardless of place of residence were given the right to participate.

On this appeal defendants and intervenor assign five propositions for reversal. First they assert the trial court erred in not holding plaintiffs lacked standing to maintain the action. The other four attack the court's adverse ruling on constitutionality of section 37.10 and its orders concerning future elections.

As we point out infra our holding on the first assigned proposition is decisive of this appeal.

Plaintiff, Vietnam Veterans Against the War, is apparently incorporated in some other state but certainly not in Iowa. It has no permit to do business in this state. Its headquarters are in New York. It has no established posts or local organizations in Iowa. There is an entire lack of evidence that any member of the organization is a resident of Des Moines. Not one is named in the record.

Larry Duncan testified: 'I am the plaintiff in this cause of action. I am twenty-six years old, I live at 2000 Grand Avenue, West Des Moines, Iowa and have lived in West Des Moines since 1967.' That incorporated city is no part of the City of Des Moines.

It is well established that the constitutionality of a statute may not be attacked by one whose rights are not, or are not about to be, adversely affected by the operation of the statute. A showing only of such interest in the subject as the public generally has is not sufficient to warrant the exercise of judicial power to determine the constitutionality of a statute. Lee Enterprises, Inc. v. Iowa State Tax Com'n, Iowa, 162 N.W.2d 730, 740; Kruck v. Needles, 259 Iowa 470, 479, 144 N.W.2d 296, 302; Lewis Consolidated Sch. Dist. v. Johnston, 256 Iowa 236, 242, 127 N.W.2d 118, 122, 123; Diamond Auto Sales, Inc. v. Erbe, 251 Iowa 1330, 1334, 105 N.W.2d 650, 652; Browneller v. Natural Gas Pipeline Co., 233 Iowa 686, 692, 8 N.W.2d 474, 477 and citations.

The generall rule is thus stated in 16 Am.Jur.2d Constitutional Law, section 119, pages 310--312:

'It is always open to interested persons to show that the legislature has transgressed the limits of its power, and persons injuriously affected may question the validity of a law. But the requirements of interest and injury are important ones. A constitutional question does not arise merely because it is raised and a decision thereof sought. The constitutionality of a legislative act is open to attack only by a person whose rights are affected thereby. Before a law can be assailed by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement on his rights. Assailants must therefore show applicability of the statute and that they are thereby injuriously affected. These rules are applicable to all cases both at law and in equity. * * *.

'The corollary to the general rule is that one who is not prejudiced by the enforcement of an act of the legislature cannot question its constitutionality.' See also 16 C.J.S. Constitutional Law § 76.

The Supreme Court has consistently recognized and applied the general rule. Two of its recent cases are Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154; Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, 1973.

In Broadrick the court says, '* * *, the statement of Mr. Justice Holmes is particularly appropriate: 'if there is any difficulty . . . it will be time enough to consider it when raised by someone whom it concerns.' United States v. Wurzback, Supra, 280 U.S. (396), at 399 (50 S.Ct. 167, 74 L.Ed. 508).'

In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636, the Supreme Court held where plaintiff Club failed to establish it or its members would suffer injury by enforcement of an Administrative Procedure Act it lacked standing to maintain an action attacking the Act.

Under the record the trial court standing to challenge the constitutionality of Code section 37.10. The burden was on them to do so. Knorr v. Beardsley, 240 Iowa 828, 839, 38 N.W.2d 236, 242, 243 and citations.

Without reaching the last four assigned propositions we hold plaintiffs lack standing to maintain this action.

The judgment and decree of the lower court is reversed. This case is remanded for dismissal by the trial court.

MASON, RAWLINGS, LeGRAND, REES and HARRIS, JJ., concur.

McCORMICK, UHLENHOPP and REYNOLDSON, JJ., dissent.

McCORMICK, Justice (dissenting).

I respectfully dissent because I believe plaintiffs established their standing and the unconstitutionality of the procedure in Code § 37.10 for selection of auditorium commissioners.

I. Standing. I believe there is ample proof in the record of plaintiffs' standing. The gist of the majority opinion appears to be that plaintiffs lack standing because they are not property taxpayers in Des Moines. That narrow view misconceives the law of standing and the theory of standing on which plaintiffs rely.

Standing is a rule of practice, not a matter of substantive law. Where federal questions are involved, as in this case, we have tailored our rule to that observed in federal courts. Gradischnig v. Polk County, 164 N.W.2d 104, 107 (Iowa 1969). The test is whether plaintiffs have alleged 'such a personal stake in the outcome of the controversy' as to insure the dispute sought to be adjudicated will be presented in a concrete adversary context. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678 (1962). It is not necessary to decide whether their allegations will entitle them to any relief, only whether if the wrong alleged 'does produce a legally cognizable injury, they are among those who have sustained it.' Id., 369 U.S. at 208, 82 S.Ct. at 705, 7 L.Ed.2d at 680. If so, they are entitled to their day in court. The substantive issues are examined only '(to determine whether there is a) logical nexus between the status asserted and the claim sought to be adjudicated' and 'the necessary degree of contentiousness.' Roe v. Wade, 410 U.S. 113, 124, 93 S.Ct. 705, 712, 35 L.Ed.2d 147, 161 (1973); see Flat v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Recent United States Supreme Court decisions 'have greatly expanded the types of 'personal stake(s)' which are capable of conferring standing on a potential plaintiff.' Linda R.S. v. Richard D., 410 U.S. 614, 616, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536, 540 (1973); cf. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (rule inapplicable where standing is statutory).

Where fundamental rights are involved, courts will proceed 'without blind adherence to technical rules of representation' and standing will be liberally accorded. Smith v. Board of Education of Morrilton Sch. Dist. No. 32, 365 F.2d 770, 776--778 (8 Cir. 1966). Such fundamental rights include first amendment freedoms, National Student Association v. Hershey, 134 U.S.App.D.C. 56, 412 F.2d 1103 (1969), and voting rights, Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946); Gradischnig v. Polk County, supra.

In the present case, Vietnam Veterans Against the War challenges Code § 37.10 in its own behalf and that of its members. It may do so. NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405, 415 (1963). In so doing it alleges injury to all veterans, including plaintiff Larry Duncan, who are denied the right to participate in the selection of auditorium commissioners because they do not belong to veterans' posts which choose...