80-458 | SCOTUS | Dec 8, 1980
Dissenting Opinion
dissenting.
In Board of Education v. Allen, 392 U.S. 236" court="SCOTUS" date_filed="1968-06-10" href="https://app.midpage.ai/document/board-of-ed-of-central-school-dist-no-1-v-allen-107737?utm_source=webapp" opinion_id="107737">392 U. S. 236 (1968), this Court held that members of a local school board had standing to challenge in federal court the constitutionality of a state statute that required them to lend books to parochial school students. Addressing the constitutional requirement that the parties have a “personal stake in the outcome” of the litigation, the Court found such a “stake” in the dilemma that the appellants confronted: a choice between violating their oaths of office to support the United States Constitution or refusing to comply with the statutory requirements, a step which was “likely to bring their expulsion from office and also a reduction in state funds for their school district.” Id., at 241, n. 5. The Court of Appeals in the present case stated that
“[w]ere Allen the last word from the Supreme Court on standing, we could simply adopt [its] rationale . . . and determine that the councilmembers in the case before us have standing on the basis that they believe that enforcing the . . . ordinances would violate their oaths of office.” 625 F.2d 231" court="9th Cir." date_filed="1980-06-25" href="https://app.midpage.ai/document/city-of-south-lake-tahoe-roger-capri-as-mayor-of-the-city-of-south-lake-tahoe-v-california-tahoe-regional-planning-agency-and-gordon-hooper-380087?utm_source=webapp" opinion_id="380087">625 F. 2d 231, 236 (1980).
The court declined to follow Allen, however, holding instead that our subsequent cases have effectively overruled Allen. I do not believe that we have sub silentio overruled Allen. The Courts of Appeals, however, are in conflict over its continuing validity. Compare Regents of the Univ. of Minn. v. NCAA, 560 F.2d 352" court="8th Cir." date_filed="1977-08-02" href="https://app.midpage.ai/document/regents-of-the-university-of-minnesota-v-the-national-collegiate-athletic-association-348362?utm_source=webapp" opinion_id="348362">560 F. 2d 352, 363-364 (CA8 1977), and Aguayo v. Richardson, 473 F.2d 1090" court="2d Cir." date_filed="1973-01-18" href="https://app.midpage.ai/document/lydia-aguayo-v-elliot-richardson-308598?utm_source=webapp" opinion_id="308598">473 F. 2d 1090, 1100 (CA2 1973), with Finch v. Mississippi State Medical Assn., Inc., 585 F.2d 765" court="5th Cir." date_filed="1978-12-07" href="https://app.midpage.ai/document/the-honorable-cliff-finch-governor-of-the-state-of-mississippi-v-mississippi-state-medical-association-inc-360345?utm_source=webapp" opinion_id="360345">585 F. 2d 765 (CA5 1978). If the Allen doctrine is to be reconsidered, it should be done by this Court, and not by the various Courts of Appeals. I therefore dissent from the denial of certiorari.
In August 1975, the CTRPA enacted the plan of land-use and transportation regulations that is the subject of this lawsuit. Petitioners, believing that enforcement of these regulations would be unconstitutional on a number of grounds,
The Court of Appeals relied primarily on Schlesinger v. Reservists to Stop the War, 418 U.S. 208" court="SCOTUS" date_filed="1974-06-25" href="https://app.midpage.ai/document/schlesinger-v-reservists-committee-to-stop-the-war-109087?utm_source=webapp" opinion_id="109087">418 U. S. 208 (1974), and United States v. Richardson, 418 U.S. 166" court="SCOTUS" date_filed="1974-06-25" href="https://app.midpage.ai/document/united-states-v-richardson-109086?utm_source=webapp" opinion_id="109086">418 U. S. 166 (1974), to support its conclusion that petitioners could no longer claim standing under
Appellants in Allen did not simply express abstract disapproval of a government policy; rather, they were required by their position to act to implement that policy and a failure to act would have threatened immediate injury. At the same time, however, appellants were bound by their oaths to act in a contrary manner. It was this dilemma that created a personal stake in the controversy and that distinguishes their situation from that of the parties in either Schlesinger or Richardson.
The Court of Appeals also held that the city had no stand
Because the jurisdictional questions raised by this case are important and have received conflicting answers in the Courts of Appeals and because the case raises a question of the continuing validity of our own precedent, I would grant cer-tiorari and set the case for plenary consideration.
Specifically, petitioners alleged that enforcement of the challenged regulations would (1) take property for public use without just compensation and without due process of law, in violation of the Fifth and Fourteenth Amendments; (2) deprive persons subject to the regulations of equal protection of the laws, in violation of the Fifth and Fourteenth Amendments; (3) unreasonably infringe the right to travel, in violation of the Fourteenth Amendment; and (4) conflict with and frustrate the land-use ordinance and transportation plan of the Tahoe Regional Planning Compact, which was approved by Congress, in violation of the Supremacy Clause of Art. VI.
Allen also suggested, as an alternative ground, that appellants had standing because a refusal to enforce the statute could bring about a reduction in the state funds for their school districts. On this theory, appellants had standing to represent the interests of their institution and the larger group of people that would be adversely affected by the reduction in funding. Similarly, petitioners in this case alleged that the city would suffer a loss of funds, through a decrease in property values and thereby tax revenues, and sought standing as the representatives of this larger group of residents that would be adversely affected by the statute.
Lead Opinion
C. A. 9th Cir. Certiorari denied.