Women's Emergency Network v. Bush, No. 02-13981.

• Decision Date: 07 March 2003
• Docket Number: No. 02-13981.
• Citation: 323 F.3d 937
• Parties: WOMEN'S EMERGENCY NETWORK, Joshua Becker, et al., Plaintiffs-Appellants, v. Jeb BUSH, Governor, in his official capacity as Executive Director of the Florida Department of Highway Safety and Motor Vehicles, Palm Beach County, Florida, on behalf of itself and all other Florida counties, et al., Defendants-Appellees, Patricia Morris, Edwina Booth, et al., Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

323 F.3d 937

WOMEN'S EMERGENCY NETWORK, Joshua Becker, et al., Plaintiffs-Appellants, v. Jeb BUSH, Governor, in his official capacity as Executive Director of the Florida Department of Highway Safety and Motor Vehicles, Palm Beach County, Florida, on behalf of itself and all other Florida counties, et al., Defendants-Appellees, Patricia Morris, Edwina Booth, et al., Intervenor-Defendants-Appellees.

No. 02-13981.

United States Court of Appeals, Eleventh Circuit.

March 7, 2003.

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Priscilla J. Smith, Brigitte Amiri, Hillary Schwab, Center for Reproductive Law & Policy, New York City, Louis M. Silber, Silber & Valente, West Palm Beach, FL, for Plaintiffs-Appellants.

Carol A. Licko, Parker D. Thomson, Hogan & Hartson, LLP, Miami, FL, Erik W. Stanley, Matthew Duane Staver, Liberty Counsel, Longwood, FL, James Joseph Dean, Messer, Caparello & Self, P.A., Tallahassee, FL, for Appellees.

Steven Werner Fitschen, Nat. Legal Foundation, Virginia Beach, VA, for Amicus Curiae, Nat. Legal Foundation.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and BLACK, Circuit Judges.^*

BLACK, Circuit Judge:

Appellants Women's Emergency Network (WEN), Joshua Becker, and Dawn Jackson appeal the district court's dismissal of their First Amendment claims against Appellees for lack of standing. See Women's Emergency Network v. Dickinson, 214 F.Supp.2d 1308 (S.D.Fla.2002); Women's Emergency Network v. Bush, 214 F.Supp.2d 1316 (S.D.Fla.2002). Appellants challenge the State of Florida's authorization of specialty license plates bearing the message "Choose Life," as well as the State's disbursal of funds generated from the sale of Choose Life plates to organizations that provide adoption services, pursuant to Fla. Stat. § 320.08058(30). We agree with the district court that Appellants lack standing to bring their constitutional challenges to the Florida statute, and we therefore affirm the district court's opinions.

I.

Appellants brought this suit against Florida Governor Jeb Bush, Executive Director Fred Dickinson of the Florida Department of Highway Safety and Motor Vehicles (the Department), and several Florida counties¹, seeking a temporary restraining order and/or a preliminary injunction restraining Appellees from distributing funds pursuant to Fla. Stat. § 320.08058(30) (the Act); an injunction preventing Appellees from enforcing the Act and a declaration that the Act is unconstitutional; an injunction preventing the counties from distributing funds raised under the Act based on the viewpoint of the recipient; and an injunction preventing the counties from delegating their duty of administering the funds to religious organizations. The challenged statute, which creates a specialty license plate bearing the message "Choose Life," was enacted under Florida's specialty license plate program, Fla. Stat. § 320.08053.

The State of Florida currently authorizes the distribution of at least 38 specialty license plates. See Fla. Stat. § 320.08058(1)-(38) (2002). The process by which an organization can obtain a specialty license plate is spelled out in Fla. Stat. § 320.08053. An interested organization must submit to the Department (1) a request for the specialty plate, including a general description of the plate, (2) a scientific survey indicating that at least 15,000 Floridians intend to purchase the specialty plate, (3) an application fee, not to exceed $60,000, to defray the costs incurred by the Department in the review of the application and the development of the plate, and (4) a marketing strategy describing the marketing plans for the plate and outlining the anticipated revenues and planned expenditures of the revenues generated by the plate. Id. § 320.08053(1). If the sponsoring organization satisfies these requirements, the Department submits the plan to the Florida legislature, which has unfettered discretion to enact a law authorizing the specialty plate, or to reject the plan in toto. Id. § 320.08053(2).

In 1999, Choose Life, Inc., an organization committed to the promotion of alternatives to abortion, satisfied the requirements for a specialty license plate, and the Department submitted the plan to the legislature for approval. A senator offered an amendment to the bill that would have created a second specialty license plate bearing the message "Pro Choice," with proceeds to be distributed to any reproductive services organization, including those involved or associated with abortion activities. The amendment was rejected by a vote of 23 to 14. The Choose Life plate legislation passed, and the plan was codified as Fla. Stat. § 320.08058(30).

Florida motorists may purchase a Choose Life license plate by paying a $20 annual use fee above the standard license plate fee. By the terms of the Act, the annual use fees must first be used to defray the administrative expenses incurred by the Department in the development and distribution of the plates, and must then be distributed by the Department to Florida counties, in proportion to the number of purchasers of the plate in each county. The counties must then distribute the funds to agencies within the counties that satisfy the statutory criteria. Id. § 320.08058(30)(b). Eligible agencies must provide counseling or other services to "[meet] the physical needs of pregnant women who are committed to placing their children for adoption." Id. The agencies must spend at least 70% of the funds on clothing, housing, medical care, food, utilities, transportation, or other material needs of pregnant women. The funds may also be used to fund the care of babies waiting to be adopted. Id. § 320.08058(30)(b)(1). Funds generated from the sale of "Choose Life" plates may not be distributed to agencies "involved or associated with abortion activities, including counseling for or referrals to abortion clinics, providing medical abortion-related procedures, or pro-abortion advertising." Id. § 320.08058(30)(b).

Once the Department distributes funds to the counties, the counties have the sole authority to decide which agencies within the counties are qualified and will receive the Choose Life funds. Id. The Act does not limit the ability of the counties to contract with other organizations to make these decisions. Indeed, this is what most counties have done, or at least have evidenced an intent to do.²

Appellants filed this lawsuit in the Southern District of Florida on January 16, 2002, challenging the constitutionality of Florida's Choose Life license plate statute, Fla. Stat. § 320.08058(30).³ Appellants contend the statute violates their First Amendment right to freedom of speech by providing a forum for pro-life car owners to express their political views but not providing a similar forum for pro-choice car-owners, and by authorizing the distribution of funds in a manner that discriminates based on the viewpoint of the agency applying for the funds. Appellants also claim the statute violates their rights under the Establishment Clause by creating excessive entanglement with religion by preferring one religion over others and by delegating an important governmental function to religious organizations. Appellants further contend the statute violates their right to due process under the Fourteenth Amendment; they assert the statute conditions the receipt of funds on criteria so vague that it encourages discriminatory disbursements of money and fails to give applicants fair notice of what speech renders them ineligible for funds.⁴ The District Court dismissed Appellants' claims against Appellees Dickinson and the Florida counties in an order dated July 12, 2002, finding Appellants lacked standing to bring their claims. Women's Emergency Network v. Dickinson, 214 F.Supp.2d 1308 (S.D.Fla.2002). The court also granted Appellee Bush's motion for summary judgment, finding he was not a proper party to the suit. Women's Emergency Network v. Bush, 214 F.Supp.2d 1316 (S.D.Fla.2002).

II.

Article III of the United States Constitution authorizes the courts to decide cases only where there is a justiciable case or controversy. U.S. CONST. art. III, § 2, cl. 1; Ala. Power Co. v. U.S. Dep't of Energy, 307 F.3d 1300, 1308 (11th Cir.2002). Perhaps the most fundamental doctrine that has emerged from the case-or-controversy requirement is that of standing. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Ala. Power Co., 307 F.3d at 1308. The Supreme Court has articulated for us a three-part test to determine whether a party to a lawsuit has standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). A plaintiff must show (1) he has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to conduct of the defendant; and (3) it is likely, not just merely speculative, that the injury will be redressed by a favorable decision. Id.; Ala. Power Co., 307 F.3d at 1308-09.

Courts have traditionally recognized at least three distinct forms of standing: taxpayer standing, see Doremus v. Bd. of Educ. of Hawthorne, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952), individual standing, see Lujan, 504 U.S. at 560, 112 S.Ct. at 2136, and organizational standing, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982). We will address Appellants' claims under each basis for standing.

1. Taxpayer Standing

Appellants Becker and Jackson claim their counties of residence violated their First Amendment rights as taxpayers by using county funds to coordinate and oversee the distribution of Choose Life funds to organizations providing adoption services.⁵ Specifically, Appellant Becker claims the use of county funds to negotiate a contract with Catholic Charities, a religious...