WASHINGTON STATE GRANGE v. WASHINGTON STATE REPUBLICAN PARTY
No. 06-15771
United States Court of Appeals, Ninth Circuit
October 3, 2008
545 F.3d 1125 | 1126
Argued and Submitted May 14, 2008.
Jay S. Carlson, David T. McDonald, Kirkpatrick & Lockhart Preston Gates Ellis, LLP, Seattle, WA, Richard Dale Shepard, Shepard Law Office, Inc., Tacoma, WA, for Plaintiffs-Intervenors-Appellees.
Before: D.W. NELSON, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges.
ORDER
This case was remanded to us from the United States Supreme Court. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). In light of the Supreme Court‘s decision, we VACATE our opinion in Washington State Republican Party v. Washington, 460 F.3d 1108 (9th Cir.2006), VACATE our August 22, 2006 and October 3, 2006 orders granting attorney‘s fees and costs and REMAND to the district court with the following instructions.
The district court should DISMISS all facial associational rights claims challenging Initiative 872. See Wash. State Grange, 128 S.Ct. at 1187.
The district court should DISMISS all equal protection claims. The allegedly discriminatory statutes were repealed by Initiative 872. See Wash. State Grange, 128 S.Ct. at 1192-93.
The district court should DISMISS as waived all claims that Initiative 872 imposes illеgal qualifications for federal office, sets illegal timing of federal elections or imposes discriminatory campaign finance rules because these claims were neither pled by the parties nor addressed in summary judgment by the district court.
The district court may allow the parties to further develop the record with respect to the claims that Initiative 872 unconstitutionally constrains access to the ballot and appropriates the political parties’ trademarks, to the extent these claims have not been waived or disposed of by the Supreme Court.
The district court may make appropriate findings concerning the parties’ settlement of fees and should determine whether restitution or further fee awards are appropriate in response to appellee Washington State‘s motion to vacate award of attorney‘s fees and costs, for judgment awarding restitution of fees and costs and for costs.
Remanded for proceedings according to the above instructions.
No. 06-15771.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 14, 2008.
Filed Oct. 3, 2008.
William J. Carroll (argued), Katharine Demgen, Morgenstein & Jubelirer LLP, San Francisco, CA, Jeffrey A. Blair, Christopher M. Patti, University of California, Office of the General Counsel, Oakland, CA, for defendants-appellees Roy L. Caldwell, Ph.D., and David Lindberg.
Robert M. Loeb, Lowell V. Sturgill Jr. (argued), United States Department of Justice, Civil Division, Washington, D.C., for defendant-appellee David Campbell.
Before: B. FLETCHER and PAMELA ANN RYMER, Circuit Judges, and KEVIN THOMAS DUFFY,* District Judge.
RYMER, Circuit Judge:
We must decide whether Jeanne E. Caldwell, who asserts an interest in being informed about how teachers teach the theory of evolution in biology classes, has standing to pursue an Establishment Clause claim arising out of her offense at the discussion of religious views on the “Understanding Evolution” website created and maintained by the University of California Museum of Paleontology and funded in part by the National Science Foundation. She avers that the website endorses beliefs which hold that religion is compatible with evolutionary theory and disapproves beliefs, such as her own, that are to the contrary, thereby exposing her to government-endorsed religious messages and making her feel like an outsider. In a published opinion, the district court concluded that Caldwell‘s allegations state only a generalized grievance insufficient for injury in fact, and dismissed the complaint. Caldwell v. Caldwell, 420 F.Supp.2d 1102, 1107 (N.D.Cal.2006). We also conclude that the harm asserted by Caldwell to her interest in being informed about the teaching of evolutionary theory is too generalized and remote to confer standing against the University of California faculty who administer the website and develop its content on behalf of the Museum of Paleontology. Caldwell‘s complaint against the Director of the National Science Foundation has become moot since her appeal was taken. Therefore, we affirm.
Caldwell‘s complaint pursuant to
Roy L. Caldwell, Director of the University of California‘s (UC) Museum of Paleontology, and David Lindberg, Chair of the Integrative Biology Department at UC Bеrkeley, developed the website‘s content and administer it.1 They applied for a grant from the National Science Foundation (NSF)2 to create a website “to provide professional development opportunities to broaden and deepen the disciplinary knowledge and pedagogical skills of teachers, thus improving their ability to deliver rich and challenging science, mathematics and technology education to all students.” NSF awardеd the grant on May 10, 2001.
The website consists of some 840 pages. Its stated purpose is:
Understanding Evolution is a non-commercial, education website, teaching the science and history of evolutionary biology. This site is here to help you understand what evolution is, how it works, how it factors into your life, how research in evolutionary biology is performed, and how ideas in this area have changed over time.
http://evolution.berkeley.edu. The website has a number of subsites, one оf which is “Understanding Evolution for Teachers.” This subsite in turn is organized into a number of sections, including one called “Misconceptions” that addresses misconceptions about evolution and the mechanisms of evolution. Caldwell‘s complaint focuses on a page titled “Misconception: ‘Evolution and Religion are Incompatible.‘” http://evolution.berkeley.edu/evosite/misconceps/IVAandreligion.shtml. Beneath text elaborating the point3 is a cartoon that depicts a smiling scientist in a lab coat holding a fossil skull shaking hands with a smiling cleric in a collar holding a book marked with a small cross.
Caldwell alleges that the site endorses the religious viewpoint that religious beliefs are limited to the spiritual world; that the theory of evolution is not in conflict with properly understood Christian religious beliefs; that the “Misconception” page links to a National Center for Science Education (NCSE) web page that includes statements by many religious organizations in support of the endorsed position that most Christian and Jewish religious groups have no conflict with the theory of evolution; and that the site seeks to proselytize public school students and the public to adopt these viewpoints. The complaint avers that Caldwell is offended by the government‘s endorsement of religions and religious denominations when she visits the site; that people such as she who believe that their religious belief is incompatible with evolutionary theory are made to feel like outsiders by the State of California and the United States; and that she has been exposed to the government-endorsed religious messages to her harm because UC has opened the site to the general public. Caldwell requests an injunction restraining publication of the website and a judgment declaring that inclusion of the religious and antireligious materials in the Understanding Evolution website is unconstitutional.
Meanwhile, Caldwell had moved at oral argument for leave to amend her complaint to include additional allegations that the Understanding Evolution website is aimed at the general public as well as at K-12 teachers, and that UC has expressly invited members of the general public to visit and use the website. Asked to clarify its dismissal order in this respect, the court explained that it denied leave to amend bеcause the additional allegations would have no bearing on whether Caldwell adequately alleged cognizable injury in fact given that the court‘s decision was based on the understanding that UC‘s website was always open to the public.
Caldwell timely appealed.
II
We first consider the status of Caldwell‘s action against NSF because mootness has been suggested. Paragraph 16 of the complaint alleges that the grant “runs through October 31, 2006,” and ¶ 19 avers: “The grant started on April 1, 2001, and expires on Octobеr 31, 2006.” The government represents that this is so, i.e., the grant in fact expired on October 31, 2006, and that no funding has occurred since then or is likely to occur in the future. See Chandler v. Miller, 520 U.S. 305, 313 n. 2, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). Caldwell does not seriously contend otherwise. For these reasons, the appeal as to NSF is moot.
III
Next we address Caldwell‘s contention that she could have added amendments to her complaint that would have sufficiently pleaded injury in fact, as well as meritorious Establishment Clause claims. There is nо issue as to the latter because the merits were neither reached by the district court nor raised on appeal. As to standing, the proffered amendments would be meaningless because ¶ 26 of the complaint already alleges that UC opened the Understanding Evolution website to the public. Both the district court, and we, take it as true for purposes of whether dismissal is proper that, as pled, the website is public.
The heart of Caldwell‘s position is that Valley Forge, embraced as the controlling authority by UC and the district court, is inapposite and that the “cross” cases, exemplified by Buono v. Norton, 371 F.3d 543 (9th Cir.2004), provide the more apt analogy. See also Separation of Church and State Comm. v. City of Eugene, 93 F.3d 617 (9th Cir.1996) (SCSC); Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir.1993). Caldwell submits that, like the plaintiffs in those cases, she also came into direct contact with a religious symbol on property owned by the government which she finds offensive; and that, just as the inability of plaintiffs in those cases freely to use public land sufficed as injury in fact, so too should it suffice that she is inhibited from freely using a government resource without running into religious symbols and theological statements which оffend her.
A party has Article III standing if she suffers an “injury in fact,” the injury is fairly traceable to the challenged conduct, and the injury is likely to be redressed by a favorable judicial decision. Buono, 371 F.3d at 546; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Even so, “the Court has refrained from adjudicating ‘abstract questions of wide public significance’ which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches.” Valley Forge, 454 U.S. at 474-75, 102 S.Ct. 752 (quoting Warth v. Seldin, 422 U.S. 490, 499-500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).4
In Valley Forge, Americans United for Separation of Church and Stаte along with four of its employees, based in the Washington, D.C. area, learned through a news release that surplus government property had been transferred to Valley Forge Christian College in Chester County, Pennsylvania. They challenged the transfer on Establishment Clause grounds. The Court held that Americans United were without standing as taxpayers, and had not established standing by virtue of an injury in fact. Elaborating the requirement for injury in fact, the Court observed that it is not enough for a party to сlaim that the Establishment Clause has been violated; “[s]uch claims amount to little more than attempts to employ a federal court as a forum in which to air ... generalized grievances about the conduct of government.” Id. at 483, 102 S.Ct. 752 (internal quotations and citations omitted). Thus, the complaint of Americans United was deficient because “[t]hey fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms.” Id. at 485-86, 102 S.Ct. 752 (emphasis in original).4
In Buono, the plaintiff, a retired employee of the Park Service who had been Assistant Superintendent of the Mojave National Preserve and regularly visited it, complained that a Latin cross atop Sunrise
Since Buono, we have also considered standing to pursue an Establishment Clause challenge in the context of a government seal. In Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir.2007), a county employee was forced to have daily contact with a county seal from which a cross had been removed and which he regarded, for this reason, as an offensive anti-religious symbol. We held that Vasquez had standing even though he had taken no affirmative stеps to avoid areas where the symbol was located; we did not think it necessary to require a change of behavior—in his case, to quit his job—in order to vindicate spiritual harm from unwelcome direct contact with an allegedly offensive religious (or anti-religious) symbol. Nor did we think Vasquez‘s contact with the symbol too tenuous, indirect, or abstract to give rise to Article III standing given that he held himself out as a member of the community where the seal was located, as somеone forced into frequent regular contact with it, and as someone directly affected by unwelcome direct contact with a symbol that was pervasively on display. We thought Valley Forge distinguishable in this respect, because the plaintiffs there were physically removed from the allegedly unconstitutional conduct, and because Vasquez had alleged more than “a mere abstract objection” to removal of the cross from the county seal. Id. at 1251 (quoting Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir.1997)).5
Caldwell‘s situatiоn does not fit neatly into a place already staked out along the continuum of Establishment Clause standing. She is neither so removed from the conduct challenged as the plaintiffs were in Valley Forge, nor so close as the plaintiff was in Vasquez. Her connection to the writing on the website is more tenuous than Buono‘s to the Preserve where the offending symbol was a Latin cross that was permanently installed on a top of a hill, while her complaint is more abstract and her contact less forced than Vasquez‘s.
It is instructive to compare School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), as the Supreme Court did in Valley Forge, 454 U.S. at 486 n. 22, 102 S.Ct. 752. Schempp is the source of the rule which informed our decision in the seal case, that unwelcome direct contact with an allegedly offensive religious or anti-religious symbol, suffices for Article III standing. See Vasquez, 487 F.3d at 1251-53. In Schempp, children enrolled in public school together with their parents objected to a Bible reading in the classroom that was mandated by state law. The Court found the interests asserted sufficient for standing
We conclude that Caldwell‘s asserted interest—informed participation as a citizen in school board meetings, debates, and elections, especially with respect to selection of instructional materials and how teachers teach the theory of evolution in biology classes in the public schools—is not sufficiently differentiated and direct to confer standing on her to challenge the University of California‘s treatment of religious and anti-religious views on evolution. An interest in informed participation in public discourse is one we hold in common as citizens in a democracy. While people inside and outside the academy may (and do) take different views in the ongoing debate over whether science and religion may coexist, Caldwell‘s offense is no more than an “abstract objection” to how the University‘s website presents the subject. The court must refrain from becoming “a judicial version[] of college debating forums.” Vasquez, 487 F.3d at 1251 (quoting Valley Forge, 454 U.S. at 473, 102 S.Ct. 752). That she is the parent of school-age children makes her position no less remote, for her connection to the University of California website is not similar to the relationship in Schempp between parents whose children are directly exposed to unwelcome religious exercises in the classroom and the school district. Accordingly, we believe there is too slight a connection between Caldwell‘s generalized grievance, and the government conduct about which she complains, to sustain her standing to proceed.
AFFIRMED.
BETTY B. FLETCHER, Circuit Judge, concurring:
I concur in the majority opinion. I write separately to elaborate more fully why Caldwell lacks standing.
Caldwell‘s injury is limited to “the psychological consequence presumably produced by observation of conduct with which one disagrees.” Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Caldwell does not allege that her children‘s school has incorporated the offending views expressed on the UE website into its science curriculum or that her children‘s biology teacher articulated them in response to a student‘s question. Thus, there is no allegation that Caldwell‘s children or Caldwell herself were “directly affected” by thе offensive content of the UE website. Cf. School District of Abington v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (holding that public school pupils and their parents who objected to Bible reading in school had standing because they were “directly affected by the laws and practices against which their complaints [were] directed“).
Moreover, while “[w]e have repeatedly held that inability to unreservedly use public land suffices as injury-in-fact,” id. (citation omitted), I am not persuaded that inability unreservedly to use a government-run website necessarily also suffices as injury-in-fact. Accessing and leaving a website is quiсk and easy, and the alleged offense from the content of one page out of 840 that one need not read or tarry over is fleeting at best. While in certain cases the inability to access a government-run website due to allegedly unconstitutional content may well confer standing, I conclude that Caldwell‘s injury is too de minimis to satisfy the standing doctrine‘s core aim of “improving judicial decision-making by ensuring that there is a specific controversy before the court and that there is an advocate with sufficient personal concern to effectively litigate the matter.” Vasquez, 487 F.3d at 1250 (internal quotation marks, editorial marks, and citation omitted).
UNITED STATES of America, Plaintiff, and Christopher Kim, a/k/a Kyung Joon Kim, KJ Kim and Chris Kim; Bora Lee; Se Young Kim; Young Ai Kim; Erica M. Kim; First Stephora Avenue, Inc.; Alexandria Investment, LLC, Claimants-Appellees, Optional Capital, Inc., a/k/a Optional Ventures, Claimant-Appellant, v. REAL PROPERTY LOCATED AT 475 MARTIN LANE, BEVERLY HILLS CALIFORNIA, Real Property located at, a/k/a Seal A; 924 North Bevеrly Drive, Beverly Hills, California, Real Property located at, a/k/a/ Seal A; All Funds in Credit Suisse Private Banking Account No. 0251-844548-6 in the Name of Alexandria Investment, LLC; All Funds in Credit Suisse Private Banking Account No. 0251-922787-3 in the Name of Erica Mihae Kim; $956,525.06 in Funds Seized, from United Commercial Bank Account No. 63600084, in the name of First Stephora Avenue, Inc.; $157,329.05 in Funds Seized, from United Commercial Bank Account No. 63599914, in the name of Alexandria Investment, LLC; $174,315.16 in Funds Seized from Wilshire State Bank Account No. 3219380, in the name of Se Young Kim; 2004 Mercedes Benz CL500, one; 2002 Mеr-
Notes
Misconception: “Evolution and religion are incompatible.”
Response: Religion and science (evolution) are very different things. In science (as in science class), only natural causes are used to explain natural phenomena, while religion deals with beliefs that are beyond the natural world.
The misconception that one has to choose between science and religion is divisive. Most Christian and Jewish religious groups have no conflict with the theory of evolution or other scientific findings. In fact, many religious people, including theologians, feel that a deeper understanding of nature actually enriches their faith. Moreover, in the scientific community, there are thousands of scientists who are devoutly religious and also accept evolution.