DOE v. MADISON SCHOOL DISTRICT NO 321 321 (1999)

ORDER

On July 29, 1998, Doe filed a “Suggestion of Mootness and Motion to Vacate.”   She does not, however, provide any argument supporting the motion.   Quite the contrary, as she candidly notes in her brief responding to our order of July 7, 1998, Supreme Court and Ninth Circuit precedent “dictate[ ] that if Doe has maintained taxpayer standing, the Panel's decision cannot be vacated” as moot (emphasis added).   We thus examine whether anything in the record should cause us to reconsider whether Doe has taxpayer standing.

In the published opinion in this case, we concluded that, in addition to Doe's particularized interest in the graduation ceremony, she indeed has taxpayer standing:

[T]he record indicates that Doe is a taxpayer in Madison County.   The Supreme Court has, on many occasions, recognized the standing of taxpayers to challenge Establishment Clause violations.   See, e.g., Bowen v. Kendrick, 487 U.S. 589, 618, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988);  School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 379 n. 5, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), overruled on other grounds by Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 2006-17, 138 L.Ed.2d 391 (1997);  Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

Doe v. Madison, 147 F.3d 832, 834 n. 1 (9th Cir.1998).   To the extent that this statement of standing might appear to be inconclusive, we now clarify and emphasize that Doe indeed has taxpayer standing and continues to maintain such standing.   The record reveals that Doe was a taxpayer in Madison County when this litigation began and that her status has not changed.¹  Moreover, tax dollars fund virtually all expenses related to the graduation ceremony, including the costs of renting the ceremony hall, printing the graduation program, buying decorations, and hiring security guards.   See CR 107, 110.   These expenditures allegedly violate Doe's religious convictions.   See CR 16.   The requested relief, if granted, would prevent future injuries.   Doe has thus brought a “good-faith pocketbook action,” as required for taxpayer standing.  Cammack v. Waihee, 932 F.2d 765, 769-72 (9th Cir.1991);  see also Hewitt v. Joyner, 940 F.2d 1561, 1564 (9th Cir.1991);  Hoohuli v. Ariyoshi, 741 F.2d 1169, 1178 (9th Cir.1984).²

Our conclusion is further informed by Doe's own analysis in her brief.   She concedes that the prerequisites to taxpayer standing have all been met and that she is still a taxpayer in Madison County.   Although Doe “suggests” mootness, her motion candidly admits:  “[T]he weight of authority indicates that [the case] is not moot ” (emphasis added).   Being a court of law, we are bound by legal authority, not by policy-based suggestions.   Hence, using Doe's own forthright words, we now hold that “Doe has maintained taxpayer standing” and that “the Panel's decision cannot be vacated” on mootness grounds.³

We need not decide whether the opinion, absent taxpayer standing, would have to be vacated.⁴  We simply hold, in light of the record as a whole, that Doe has maintained taxpayer standing and that the case is consequently not moot.

The suggestion of mootness is REJECTED, and the motion to vacate is DENIED.

We stated in our opinion on the merits, Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832, 834 n. 1 (9th Cir.1998), that Doe ¹ had standing based on her “particularized interest in the graduation ceremony” and possibly based on her status as a municipal taxpayer.²  After the graduation ceremony, a member of our court suggested that our opinion should be vacated because Doe no longer had standing and the case was moot since no further developments could affect Doe's interests.   We requested supplemental briefing.   The school district argued that Doe has standing as a taxpayer.   Doe agreed, but requested, should the panel conclude otherwise, that the court vacate the opinion on the merits.   The majority holds that Doe has taxpayer standing, and therefore rejects the suggestion of mootness and denies the motion to vacate.   I dissent because Doe cannot satisfy the prerequisites of taxpayer standing.³

As the majority concedes, municipal taxpayers only have standing to bring “goodfaith pocketbook actions” challenging unlawful use of municipal funds.   Cammack v. Waihee, 932 F.2d 765, 770 (9th Cir.1991).   The Supreme Court defined this pocketbook injury requirement in a state taxpayer standing case, Doremus v. Board of Educ., 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), and the Ninth Circuit ruled in Cammack that the same standard applies to municipal taxpayer standing.   Id. Doe cannot satisfy the Doremus test.

In Doremus, the plaintiffs, asserting taxpayer standing, challenged a state law requiring public schools to read a Bible passage at the opening of each school day.  Doremus, 342 U.S. at 430, 72 S.Ct. 394.   The Court held that the taxpayer lacked standing because he failed to establish that the suit was a “good-faith pocketbook action,” id. at 434, 72 S.Ct. 394:

There is no allegation that this activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school․  [T]here is no averment that the Bible reading increases any tax they do pay or that as taxpayers they are, will, or possibly can be out of pocket because of it.

Id. at 433, 72 S.Ct. 394.  Doremus specifically distinguished Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), a taxpayer suit challenging school district funding of transportation to religious schools, because the taxpayer “showed a measurable appropriation or disbursement of school-district funds occasioned solely by the activities complained of.   This complaint does not.”   Id. at 434, 72 S.Ct. 394 (emphasis added).

Doremus requires a taxpayer to identify a governmental expenditure supporting the challenged activity that would be avoided if the activity were suspended.⁴  In Doremus, the plaintiff taxpayer did not satisfy this standard because, even though the school district presumably paid the salary of the person who read the Bible passages, paid for the installation, maintenance and operation of the public address system over which those passages were read, and built and maintained the schools in which the children sat while they listened, none of these expenditures would have been eliminated if the Bible readings were barred.   As the district court observed, the plaintiff had not shown that “ ‘compliance with the statute adds to the school expenses or varies by more than an incomputable scintilla the economy of the day's work.’ ”   Id. at 431, 72 S.Ct. 394 (quoting district court opinion).   In Everson, on the other hand, the challenged program reimbursed parents for the cost of public transportation to carry their children to school, including religious schools.  Everson, 330 U.S. at 3, 67 S.Ct. 504. If the taxpayer plaintiffs were successful, the district would have avoided measurable expenditures, specifically, the cost of transporting children to religious schools.

The majority claims that its holding is consistent with Doremus because Doe “has alleged more than an incidental expenditure of tax funds.”   Ante at n. 2. To support this conclusion, the majority cites Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), which held that a taxpayer cannot establish standing merely by alleging “an incidental expenditure of tax funds in the administration of an essentially regulatory statute,” and noted that this restriction was consistent with Doremus.  Flast did not hold, however, that these were the only circumstances in which a taxpayer would fail to establish standing, and did not purport to reinterpret or overrule Doremus.   Id.;  see also Hoohuli v. Ariyoshi, 741 F.2d 1169, 1179 (9th Cir.1984) (“Flast does not appear to have affected the availability of standing for state taxpayers challenging state statutes.”).   This court and other circuits have continued to look to Doremus for guidance in determining the requirements for municipal and state taxpayer standing.⁵

The majority does not address Doremus 's requirement that the taxpayer identify expenditures “occasioned solely by the activities complained of.”   It notes that “tax dollars fund virtually all expenses related to the graduation ceremony,” but Doe is not challenging the school district's sponsorship of the high school graduation ceremony.   The “activity complained of” is the school district's practice of permitting a student to choose to say a prayer during the graduation ceremony.   If this practice were suspended, the district would not avoid any of the costs of the graduation.   The practice does not add to or vary the economy of conducting the graduation by more than an “incomputable scintilla.”   Under Doremus, therefore, Doe does not have taxpayer standing.

Doe argues that “graduation is a discrete, once-a-year event, and should be viewed as a unitary activity with respect to any financial expenses associated with the prayers and religious hymns that Madison permits students to perform.”   She urges us not to dissect the ceremony “into two-minute segments” for the purpose of evaluating the fiscal impact of the school district's policies, arguing, “It is absurd to suggest that the podium is being rented for the remainder of the program but not for the prayers and the religious hymns that occur as an integral part of it.”   But Doe suggests no principled way to distinguish the facts of Doremus from the facts of this case.   In Doremus, the challenged activity blended into the myriad activities of the school day, all of which were financed by public funds.   Similarly, prayer at graduation could be said to be financed by the school district because the entire graduation ceremony was paid for with public money.   If Doe could establish standing based on the school district's financing of the entire ceremony, however, there is no reason why Doremus could not have relied on the school district's funding of daily school operations to challenge the reading of passages from the Bible.⁶

The purpose of the standing requirement is to ensure that the plaintiff has a sufficiently particularized interest in the lawsuit that “concrete adverseness [will] sharpen[ ] the presentation of issues” and the court will avoid reviewing hypothetical or abstract disputes that are beyond its constitutional power to decide.  Flast, 392 U.S. at 99-100, 88 S.Ct. 1942;  see also id. at 94-95, 88 S.Ct. 1942 (purposes of case and controversy requirements in general).  Doremus holds that a taxpayer's interest in government sponsorship of or entanglement with religion is sufficiently concrete and particularized only if the lawsuit challenging that activity would result in the avoidance of measurable expenditures.   In this case, any change in the school district's policy regarding student speeches at graduation would not alter the costs of the graduation in any way;  Doe, therefore, does not have a particularized interest as a taxpayer in the outcome of this litigation.   This does not mean that the policy is immune from attack.   Students attending the graduation have a particularized interest in the policy, but the Doe student-plaintiffs will no longer attend such ceremonies.

The majority notes that Doe “frankly acknowledges” she has taxpayer standing.   But standing is jurisdictional and mandatory, not optional.   It cannot be waived by the parties.   Moreover, Doe also “frankly acknowledges” that if Doremus holds “that the ‘challenged expenditure’ must be connected to the very activity at issue (here, the prayers and hymns) and not simply to the overall program in which the activity is an integral part (here, the graduation program), ․ then Jane Doe lacks municipal taxpayer standing.” ⁷  Doremus so holds.

Because the school district's policy of permitting students to read a prayer at graduation does not result in a measurable appropriation or expenditure of school district funds, Doe does not have standing to challenge the policy based solely on her status as a municipal taxpayer.

FOOTNOTES

1.   We note, incidentally, that even if Doe had lost her taxpayer standing by moving out of Madison County, vacatur would nonetheless be inappropriate.   Federal appellate courts generally should not grant vacatur when the losing party's voluntary action causes the mootness.   See United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994);  Dilley v. Gunn, 64 F.3d 1365 (9th Cir.1995).

2.   Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), is consistent with this conclusion.   Although the taxpayer lacked standing in that case, only a mere “incomputable scintilla” of public funds were being spent on the challenged activity.   Because the expenditure was de minimis, the taxpayer had not brought a “good-faith pocketbook action.”   Id. at 431, 72 S.Ct. 394.   On October 13, 1998, we ordered additional briefing from the parties on Doe's taxpayer standing status, and, specifically, Doremus 's affect, if any, on that status.   In their responsive briefs, both Doe and the School District agree that Doremus does not bar the finding that Doe has maintained taxpayer standing because she has alleged more than an incidental expenditure of tax funds.   See Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (citing Doremus for the principle that to find taxpayer standing “[i]t will not be sufficient [for a taxpayer] to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.”).

3.   We sincerely appreciate and admire Doe's candor in accurately summarizing our precedents and in frankly acknowledging that she “has maintained taxpayer standing to pursue this case.”   Her probity is commendable.

4.   The School District and amici Christian Legal Society cite Armster v. United States District Court, 806 F.2d 1347, 1355 (9th Cir.1987), for the proposition that the panel would have discretion not to vacate even if Doe never had taxpayer standing.  Armster concluded:There is a significant difference between a request to dismiss a case or proceeding for mootness prior to the time an appellate court has rendered its decision on the merits and a request made after that time․   Here, a valid decision has already been rendered.   In these circumstances, while we are not precluded from exercising article III power, we are likewise not prohibited from dismissing the case post hoc.   Whether or not to dismiss is a question that lies within our discretion.Id. at 1355 (emphasis added).   Counseling against discretionary vacatur, perhaps, is the fact that Doe elected not to file either a petition for rehearing or a suggestion for rehearing en banc.   See Fed. R.App. P. 35, 40.   Nevertheless, we need not decide the viability of Armster;  because Doe has taxpayer standing, our “decision cannot be vacated” on mootness grounds.

1.   Although we referred only to one Doe plaintiff in footnote one of our opinion, there are three Doe plaintiffs in this case.   Plaintiffs have publicly disclosed that “the last remaining Doe student [graduated] from high school on May 29[, 1998].”  Only Jane Doe contends that she retains standing as a taxpayer.   Therefore, I refer only to Jane Doe in this dissent.

2.   The majority states, “In the published opinion in this case, we concluded that ․ [Doe] indeed has taxpayer standing.”   Although our opinion noted the possibility that Doe might be able to establish taxpayer standing, Doe, 147 F.3d at 834 n. 1, we did not decide the issue.   On closer examination, it is clear that Doe does not have taxpayer standing.

3.   The majority states that it “need not decide whether the opinion, absent taxpayer standing, would have to be vacated,” but suggests in footnote four that even under these circumstances we should let the opinion stand.   I disagree with the majority's dictum.   If the issue were before us, I would vacate the opinion based on mootness.   Courts must dispose of moot cases “in the manner most consonant to justice ․ in view of the nature and character of the conditions which have caused the case to become moot.”  U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 24, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994).   The principal factor that must be considered is whether the party seeking vacatur voluntarily caused the case to become moot.   Id. at 25, 115 S.Ct. 386.   If mootness is caused by happenstance, as in this case, it is unfair to impose a judgment on the losing party, who has no chance to challenge it on appeal.   Id. Doe has indicated that she intends to petition for certiorari.   Because her loss of standing prevents her from seeking further review of the merits of this case, I would vacate our decision on the merits, vacate the district court judgment and remand for dismissal of the complaint.

4.   See also Taxpayers' Suits:  A Survey and Summary, 69 Yale L.J. 895, 922 (1960) (Doremus “stands for the proposition that a state or municipal taxpayer does not have a direct enough interest for his suit to constitute an article III case or controversy unless the activity challenged involves an expenditure of public funds which would not otherwise be made.”).  Municipal and state taxpayers need not demonstrate that a lawsuit will relieve their tax burden in order to establish standing.  Cammack, 932 F.2d at 769-70.   Similarly, they need not demonstrate that the government will not replace the challenged expenditures with other constitutional expenditures.   Id. at 770 (requiring only a showing of “an allegedly improper expenditure of municipal [or state] funds.”).   Under Doremus, however, taxpayers must demonstrate that the challenged activity results in measurable appropriations or losses in revenue.

5.   See Cammack, 932 F.2d at 770 (“[T]he Doremus requirement of a pocketbook injury applies to municipal taxpayer standing as well as to state taxpayer standing.”);  Hoohuli, 741 F.2d at 1180 (“We are thus left with Doremus in its original form to guide us in questions of state taxpayer standing.”) (emphasis added);  see also Clay v. Fort Wayne Community Sch., 76 F.3d 873, 879 (7th Cir.1996) (applying Doremus to municipal taxpayer standing);  Schneider v. Colegio de Abogados de Puerto Rico, 917 F.2d 620, 639 (1st Cir.1990) (applying Doremus to state taxpayer standing);  District of Columbia Common Cause v. District of Columbia, 858 F.2d 1, 4-5 (D.C.Cir.1988) (applying Doremus to municipal taxpayer standing).

6.   Doe suggests that no other court “has interpreted Doremus so onerously.”   In Clay, however, the Seventh Circuit interpreted Doremus as holding that taxpayers have standing when they “object to a disbursement of funds occasioned solely by the alleged unconstitutional conduct.”  Clay, 76 F.3d at 879 (emphasis added).   In Schneider, 917 F.2d at 639, the First Circuit relied on Doremus to reject a claim of taxpayer standing in a suit challenging government sales of certain stamps, concluding that the taxpayer had not shown that “the challenged activity involves a ‘measurable appropriation’ or loss of revenue,” because the “stamps are sold at government offices that exist for another purpose, and plaintiffs do not allege that additional employees are hired to handle the stamp business.”   In Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408 (5th Cir.1995), without citing Doremus, the Fifth Circuit ruled that a municipal taxpayer did not have standing to challenge distribution of Gideon Bibles in public school by private group because he could not identify public expenditures incurred solely for purpose of facilitating this activity.   Again without citing Doremus, the Eighth Circuit ruled in Friedmann v. Sheldon Community Sch. Dist., 995 F.2d 802, 803 (8th Cir.1993), that a state taxpayer lacked standing to challenge school prayer at high school graduation, where plaintiffs “have not shown any state money going to the invocation or benediction․   They have shown no more than that state money is spent for diplomas.”

7.   Doe argues that Flast overruled or narrowly construed Doremus, but cites no language from Flast to support this argument.   She also claims that two Ninth Circuit decisions indicate that this court has rejected a strict reading of Doremus.   In Cammack, this court held that taxpayers had standing to challenge a statute making Good Friday a state holiday even though the statute itself did not involve the expenditure of taxpayer funds.   But, as Doe acknowledges, “admittedly, the implementation of the statute had fiscal consequences” and the court relied on precisely those consequences to conclude that the plaintiffs had standing:  “[plaintiffs] have stated the amount of funds appropriated and allegedly spent by the taxing governmental entities as a result of the Good Friday holiday.”  Cammack, 932 F.2d at 771 (emphasis added).   Doe also cites Collins v. Chandler Unified Sch. Dist., 644 F.2d 759 (9th Cir.1981), but recognizes the court did not address standing at all;  as we have said, “the exercise of jurisdiction in a case is not precedent for the existence of jurisdiction.”  Indian Oasis-Baboquivari Unified Sch. Dist. No. 40 of Pima County v. Kirk, 91 F.3d 1240, 1243 (9th Cir.1996).