Minnesota Federation of Teachers v. Randall , 891 F.2d 1354 ( 1989 )

PER CURIAM.

Plaintiffs brought an action in the district court for Minnesota challenging the constitutionality of the Minnesota Post-Secondary Enrollment Options Act. Minn. Stat. § 123.3514 (1986) (Act). The Act allows public high school students in their junior and senior years to take advanced courses at two- and four-year colleges, some of which are religiously affiliated. Minnesota reallocates funds from public schools to these colleges in proportion to the amount of course work done by public students at these colleges.

The plaintiffs are the Minnesota Federation of Teachers (M.F.T.) and Richard Mans, the President of M.F.T. Their complaint alleges that the Act violates the establishment clause of the first amendment, and that it violates Minnesota’s Constitution. They request declaratory relief, as well as the enjoining of disbursements to religiously affiliated schools. The district court granted summary judgment for the defendants, holding that all the plaintiffs lacked standing. We reverse in part and affirm in part.

I. BACKGROUND

The Act permits any eleventh or twelfth grade public high school student to enroll for high school credit in nonsectarian courses offered at the post-secondary institution of his or her choice. The student is not required to pay for the course if the student is accepted by the institution, the course would count as credit toward graduation at that post-secondary school, and the course is taken only for high school credit. If these requirements are met, the state reimburses the institution in an amount equal to the lesser of: (1) the actual cost of tuition, textbooks, materials and fees at the college attended, or (2) the per-student funding normally provided to the student’s public high school, prorated by course units. Following completion of the course, the books and materials become the property of the student’s public school district.

During 1985-86, 3,523 students statewide participated in the program, of which 230, or 6.52%, attended private colleges. In the following year, 2,182 students participated, of which 138, or 6.32%, attended private colleges. During the 1985-86 school year, between 12,000 and 13,000 courses were taken at post-secondary schools under the program. Affidavit of Jessie Modano, State Project Director, at 3 (July 29, 1987); Joint App. at 182-83. Reallocation may amount to approximately $200 per pupil unit. Deposition of Richard Mans at 20 (February 25, 1987); Joint App. at 121.¹

II. DISCUSSION

A. RICHARD MANS

Richard Mans is the President of M.F.T. and a media teacher. He asserts several injuries. First, as a taxpayer, he protests the disbursement of tax money to sectarian schools. Second, he argues that the reallocation of funds reduces money available for his salary. Third, Mans relates that when one student left his class under this program the budget for his course was reduced, adversely affecting his remaining students and his teaching experience.

The jurisdiction of federal courts is limited to “cases and controversies.” U.S. Const, art. III. One aspect of this limit is the determination of whether the plaintiff is the proper party to litigate the dispute. To have standing to sue, the Constitution requires that each plaintiff show both an injury in fact and that she deserves the protection of the statutory or constitutional provisions invoked. Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); cf. Fletcher, The Structure of Standing, 98 Yale L.J. 221 (1988). In addition, prudential concerns sometimes militate against granting standing to those seeking to assert either the rights of others or generalized social grievances, and those unable to litigate the merits with sufficient vigor to properly present the issues. Warth v. Seldin, 422 U.S. 490, 498-501, 95 S.Ct. 2197, 2204-06, 45 L.Ed.2d 343 (1975). Special rules have developed regarding types of plaintiffs and their claims. We address initially Mans’ claim to have state taxpayer standing.

In this case, the district court concluded that to have standing Mans must show an increase in his overall tax burden from the challenged action, relying on Doremus v. Bd. of Educ., 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952) (state taxpayers denied standing). Since Mans could not prove that his taxes had been raised, the district court felt that he lacked standing to challenge the Act. We believe that the district court has misconstrued Doremus, and underap-preciated the import of other Supreme Court decisions.

Initially, municipal taxpayers were thought to have suffered sufficient injury from improper local expenditures to have standing to challenge the expenditures, while federal taxpayers’ injury was considered too minute and indeterminable in relation to federal expenditures to sustain standing. Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). Standing rules for state taxpayers were not formalized until Doremus. Frothing-ham was subsequently re-evaluated in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Flast and its progeny establish that a federal taxpayer may sue to prevent the disbursement of tax money where the disbursement violates the establishment clause of the first amendment and where the disbursement is made pursuant to Congress’ power to tax and spend. Flast, 392 U.S. at 102, 88 S.Ct. at 1953.² The district court recognized that under Flast only a disbursement of public funds was required, but felt that the injury analysis for state taxpayers was still analytically distinct. We begin by clarifying Doremus.

In Doremus, state taxpayers challenged a law authorizing public school teachers to read aloud from the Bible. The Supreme Court held that they lacked standing because they could not show how mandatory Bible-reading was “supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting school.” Doremus, 342 U.S. at 433, 72 S.Ct. at 397 (emphasis added). The district court incorrectly interpreted this language to require that Mans show an increase in his tax bill. Doremus, however, clearly indicated that an increase in the plaintiffs tax burden was only one way injury could be shown. As the language above indicates, the Court believed that direct expenditures would also suffice. The plaintiffs in Doremus were denied standing because they failed to connect any state expenditures to the challenged action. Id. at 434, 72 S.Ct. at 397. Moreover, the Court in Doremus was careful to distinguish Everson v. Bd. of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). In Everson, a state taxpayer challenged public expenditures for the transportation of parochial school children. The Doremus Court described the dispute in Everson as justiciable because “Everson showed a measurable appropriation or disbursement of school-district funds occasioned by the activities complained of. This complaint does not.” Doremus, 342 U.S. at 434, 72 S.Ct. at 397. Everson also indicated that the establishment clause limits state spending powers as well. Everson, 330 U.S. at 16, 67 S.Ct. at 511. Thus, the effect of Flast was to harmonize in some respects federal and state taxpayer standing. Flast, 392 U.S. at 102, 88 S.Ct. at 1953.

Other Supreme Court decisions support the view that Doremus only requires a measurable expenditure of tax money, and indicate that Flast and Doremus are now relied on interchangeably where establishment clause violations are urged. On the same day Doremus was decided, the Court handed down Adler v. Bd. of Educ., 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952). In Adler, a state law required the dismissal of any public school teacher who belonged to a subversive organization. Justice Frankfurter dissented, arguing that the Court lacked jurisdiction because the plaintiffs lacked standing. With respect to the taxpayer-plaintiffs, Frankfurter argued that under Doremus they did not have standing because the taxpayers could not show that their tax burden would be increased. Adler, 342 U.S. at 501-02, 72 S.Ct. at 389 (Frankfurter, J., dissenting). The other eight justices ignored Justice Frankfurter’s arguments and reached the merits. In Chambers v. Marsh, 675 F.2d 228 (8th Cir.1982), we relied on Flast in holding that Chambers had standing as a state taxpayer. The Supreme Court affirmed on standing, writing: “[W]e agree that Chambers, as a member of the legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim.” Marsh v. Chambers, 463 U.S. 783, 786 n. 4, 103 S.Ct. 3330, 3333 n. 4, 77 L.Ed.2d 1019 (1983). No showing of an increased tax burden was ever made, nor did our reliance on Flast meet with disapproval.³

The only case relied on by the district court for its view of Doremus, is Hoohuli v. Ariyoshi, 741 F.2d 1169 (9th Cir.1984). Hoohuli, however, does not hold that an increase in the plaintiff's tax burden is required. In fact, that court noted that the injury analysis required under Flast and Doremus was the same. Id. at 1179. Hoohuli found standing because the plaintiffs attacked specific disbursements and requested the money be returned to the state treasury. Id. at 1172, 1180.⁴

Our interpretation of Doremus is buttressed by the fear that the district court’s decision could lead to the abolition of taxpayer standing altogether. Where a free exercise of religion injury is alleged, plaintiffs can argue that an activity they distinctly wish to engage in has been restricted. But only a taxpayer really suffers a distinct injury from the improper use of public money in violation of the establishment clause. The district court’s view would allow standing only where a special tax assessment was levied to pay for the expenditure. Thus, when expenditures are made from general funds, no one would be able to challenge establishment clause violations. We believe that taxpayer standing was created to specifically permit the airing of establishment claims, and we decline to effectively abolish it.⁵

Accordingly, we do not believe that state taxpayers are required to show an increase in their tax burdens to allege sufficient injury. Under applicable law, state taxpayers must only show that there has been a disbursement of tax money in potential violation of constitutional guarantees. Richard Mans has met this burden and has standing to challenge the Act.⁶

B. MINNESOTA FEDERATION OF TEACHERS

M.F.T. asserts two forms of standing. First, M.F.T. claims standing as a representative of its 17,000 dues-paying members who are primarily elementary and secondary public school teachers. Second, M.F.T. asserts standing on its own behalf because the reallocation of funds reduces the amount of funds available to school districts. The Act could thus reduce the number of teachers paying dues because teachers can be terminated for “[djiscontin-uance of position or lack of pupils.” Minn. Stat. § 125.17 Subd. 4(5) (1979). In addition, M.F.T. argues that reallocation reduces the pool of money available for teacher salaries, damaging M.F.T.’s position in contract negotiations. Deposition of Edward Bolstad at 33 (February 25, 1987); Joint App. at 168.

“[I]n the absence of injury to itself, an association may have standing solely as the representative of its members.” Warth, 422 U.S. at 511, 95 S.Ct. at 2211. The Supreme Court has listed three prerequisites to representational standing. First, the members of the organization must otherwise have standing to sue in their own right. Second, the interests which the organization seeks to protect must be germane to its purpose. Third, neither the claim asserted, nor the relief requested, can require participation of the organization’s individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). This court has previously noted that each of these three requirements must be met in order to establish representational standing. Associated General Contractors v. Otter Tail Power Co., 611 F.2d 684, 690 (8th Cir.1979).

Here, there is no doubt that many of the members of M.F.T. are possibly injured as taxpayers. Furthermore, individual participation to adjudicate the establishment claim is unnecessary. .The only issue requiring closer analysis is whether the interests which M.F.T. seeks to protect in this dispute are germane to M.F.T.’s purposes.

In this case, the interest ultimately at stake are M.F.T.’s members’ interests in the use of their tax money to support sectarian schools. Although it is discernable from the complaint and other parts of the record that M.F.T. seeks to assert representational standing and that its members are allegedly injured as taxpayers,⁷ nothing in the complaint or record demonstrates how these taxpayer interests are germane to the organization’s specifically stated purposes. See Associated General Contractors, 611 F.2d at 691. Furthermore, M.F.T.’s charter fails to mention any interest in taxes. Cf. International Union, UAW v. Brock, 477 U.S. 274, 286, 106 S.Ct. 2523, 2530, 91 L.Ed.2d 228 (1986) (holding that there was little question that the UAW’s interests which it sought to protect were germane to the organization's purposes because the constitution of the UAW announced goals which clearly established those interests).

M.F.T. is not an organization of taxpayers. The fact that some or all of its members pay taxes is purely incidental. We, therefore, conclude that an insufficient nexus exists between the purposes and activities of M.F.T., a teachers’ union, and the tax money concerns expressed in the complaint and record to satisfy the second portion of the Hunt test of representational standing.

M.F.T. also asserts organizational standing in its own right, claiming as its injury the potential threat of lost membership and dues. The district court concluded that M.F.T. failed to allege any injury directly caused by the Act. We agree that the fear of possible injury and M.F.T.’s philosophical concerns are insufficient to satisfy the requirement of the standing doctrine that plaintiffs demonstrate a judicially cognizable injury. See Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758.

M.F.T. has not satisfied the requirements for either representational standing⁸ or organizational standing.⁹ Accordingly, we affirm the district court’s dismissal of M.F.T.’s claims for lack of standing.

III. CONCLUSION

Based on the foregoing reasons, we hold that M.F.T. lacks both representational and organizational standing, and thus we affirm that portion of the district court’s opinion. We also hold that Richard Mans has taxpayer standing to challenge the Act because the complaint sufficiently alleges that the Act may expend public funds in violation of the establishment clause. We reverse the portion of the district court’s judgment which denies standing to Richard Mans and remand the case for proceedings consistent with our opinion.

1 . Unfortunately, neither party developed the relevant statistics. On the basis of these figures, it appears that there was a reallocation of funds statewide of $2,400,000.00 ($200 x 12,000 courses) in 1985-86. Assuming roughly 6.5% of the course work was done at private colleges, the reallocation to private schools, sectarian and nonsectarian, was about $156,000 statewide that year. We are hesitant to rely on these figures, however, because the $200 estimation appears speculative. Moreover, we do not know if "per pupil unit" and per course are the same measure. If they are not, then the true figures are higher.

2 . Flast required a nexus between the plaintiffs' status and the power invoked by Congress, and a further connection between the power invoked by Congress and a specific constitutional limit on that power. Flast, 392 U.S. at 102-03, 88 S.Ct. at 1953-54. Flast found such a relationship between a taxpayer and the tax and spend power, and the tax and spend power and the prohibition against government financial aid to religious organizations embodied in the estab-Iishment clause. Subsequent cases leave the precise scope of Flast uncertain. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (standing to challenge executive decisions); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (no standing to challenge disbursement made pursuant to property administration powers).

3 . More recently, we have again required only a measurable disbursement of state funds. Pulido v. Bennett, 848 F.2d 880, 886, modified, 860 F.2d 296 (8th Cir.1988). In Pulido, we referred to Doremus and Grand Rapids School Dist. v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985). Grand Rapids considered the merits of a state taxpayer suit against a program aiding private schools. The Court noted in a footnote that the lower courts had properly decided the taxpayers had standing. Grand Rapids, 473 U.S. at 380 n. 5, 105 S.Ct. at 3220 n. 5. The cases cited in that footnote where state taxpayer standing was found, in turn analyze standing under Flast, as had the district court in that case. Americans United for Separation of Church and State v. Grand Rapids School District, 546 F.Supp. 1071, 1075 (W.D.Mich.1982).

4 . In addition, the Hoohuli court indicated that it was guided in its analysis by Public Citizen, Inc. v. Simon, 539 F.2d 211 (D.C.Cir.1976) (federal taxpayers), which viewed the injury required as only a conceptual necessity. “The impact on federal taxpayers in such cases is conceptually direct, even though the dollar-and-cents consequence for a taxpayer is minimal.” Id. at 218. The Hoohuli court thought only that there might be a difference between state and federal taxpayer standing in deciding whether executive or administrative decisions were constrained. Hoohuli, 741 F.2d at 1180 (relying on Public Citizen). The Supreme Court has since indicated that there is no such distinction. Kendrick, 108 S.Ct. at 2562; see also Pulido, 860 F.2d at 297.

5 . We are thus even less disposed to favor the state’s further request. The state urges us to add to the district court's test the necessity of showing that the complained of injury would be redressed by a favorable decision. Thus, according to the state, a taxpayer could only have standing if she could show an increased tax burden, and prove that her taxes would be lowered if she prevails. The State relies on Valley Forge, 454 U.S. at 464, 102 S.Ct. at 752, which denied the plaintiff standing to challenge the transfer of government property to a religious organization pursuant to the government’s property powers. While Valley Forge discussed the concept of redressability in its introduction, Id. at 472, 102 S.Ct. at 758, Valley Forge did not make redressability an element of taxpayer standing. We decline to do so in light of the foregoing discussion. See also, Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 1120, 71 L.Ed.2d 214 (1982) (only constitutionally required inquiry is whether there is an "injury in fact.”); Warth, 422 U.S. at 514, 95 S.Ct. at 2213.

6 . Mans’ other asserted individual injury is decreased job satisfaction. The law recognizes noneconomic injuries, but requires a direct and specific injury to such interests. United States v. SCRAP, 412 U.S. 669, 686-87, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973); Data Processing, 397 U.S. at 154, 90 S.Ct. at 830. In light of our holding that Mans has taxpayer standing, we need not decide whether his other assertions would also support individual standing.

7 . The complaint recites in part:

4. Plaintiff Minnesota Federation of Teachers is a labor organization affiliated with the American Federation of Teachers, AFL-CIO, and serves approximately 17,000 dues paying members who primarily are elementary and secondary public school teachers throughout the State of Minnesota.

5. Plaintiff Richard M. Mans is a taxpayer and the President of the Minnesota Federation of Teachers.

Joint App. at 7. See also Affidavit of Richard Mans (April 20, 1987), Joint App. at 179 (taxpayer status); Deposition of Richard Mans at 7-8 (February 25, 1987), Joint App. at 108-09 (M.F.T.’s interest is in the diversion of money from public education).

8 . The dissent cites Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) for the proposition that an allegation by M.F.T. that its members are taxpayers is, by itself, sufficient to confer representational standing. We disagree. Hunt, 432 U.S. at 343, 97 S.Ct. at 2441, decided subsequent to Meek, requires the three part representational analysis, discussed on page 1358, supra, even when it is alleged that member taxpayers seek to enjoin, as here, the expenditure of tax funds. Thus, M.F.T. fails the relevant test because of a lack of nexus between the tax expenditures and the stated purposes of the teachers union.

9 .The dissent, in its footnote 5, infra, takes judicial notice of several documents not made a part of the record in the district court. We disagree with the propriety of this approach. Even though the Eighth Circuit, in Gustafson v. Cornelius Co., 724 F.2d 75, 79 (8th Cir.1983), has authorized judicial notice of a fact for the first time on appeal, we believe that the better reasoned rule is the one followed by the Seventh Circuit in Zell v. Jacoby-Bender, Inc., 542 F.2d 34, 37-38 (7th Cir.1976) (circuit will consider on appeal only the record before the trial court). It is unfair to reverse the district court upon evidence which it had no opportunity to consider. Here, it is also unfair to the parties, especially the appellees, to have an appeal considered on factual matters not offered or received as part of the Fed.R.Civ.P. 56 proceeding.

An appellate court contemplating original judicial notice should, however, notify the parties so that the propriety of taking notice and the tenor of the matter to be noticed can be argued.... If oral argument has already been completed, the court should at least afford the parties an opportunity to submit supplemental briefs.

Weinstein & Berger, 1 Weinstein’s Evidence ¶ 201[06], at 201-49 (1989). See also Massachusetts v. Westcott, 431 U.S. 322, 323 n. 2, 97 S.Ct. 1755, 1756 n. 2, 52 L.Ed.2d 349 (1977). Further, the documentary material considered by the dissent is not the type of evidence embraced by Fed.R.Evid. 201(b)(2). And, some of the papers referred to in the dissent would very likely be considered inadmissible hearsay if offered by a party.