Henderson v. Stalder

JONES, and Circuit Before DAVIS BARBOUR,1 Judge. District Judges,

BARBOUR, Judge: District Department Secretary of the and the Safety and Corrections

Public bring of Louisiana Treasurer of State of the challenge the Order appeal preliminary granted court which district and there- in favor of injunction Appellees of Louisiana implementation by halted 47:463.61, autho- Revised Statute plate bearing prestige rizes a find that the message. Life” We “Choose lacked Appellees 47:463.61. constitutionality of La.Rev.Stat. court, reverse the district therefore We injunction and re- preliminary vacate its instruction the com- to dismiss mand with plaint.

I. Russell J. Plaintiff-Appellees, Keeler, Henderson, H. Lo- Robert Doreen New Section ewy, and Greater Orleans Women Counsel of Jewish the National (“NCJW”)2 against suit instituted this Bri- (argued), Heller Simon Lawrence of Public Secretary Department of the Amiti, Repro- Adrienne Center gitte the Treasurer Safety and City, Corrections Policy, New York Law & ductive appeal, we parties to the Although not named Judge District District of the Southern 1. later added Mississippi, sitting by designation. these have considered whether challenge the con- plaintiffs have Eugene and Planned Parenthood LaMothe Life statute. stitutionality of the Choose to the Louisiana added were appeal. interlocutory subsequent to the case Louisiana, seeking religion, State decla- right denies them their to due process in ration that La.Rev.Stat. 47:463.61is uncon- violation of the First and Four- injunction an teenth prohibiting stitutional and Amendments to the United States Constitution. Plaintiffs challenged sought enforcement. The law estab- a declara- tory judgment that La.Rev.Stat. lished a “Choose Life” automobile license 47:463.61 is unconstitutional and' automobiles, injunction plate private provided against its enforcement. August On there are a minimum appli- of one hundred 2000, a hearing on the Motion for Prelimi- cants for The annual fee for the nary Injunction was held before United Choose Life paid which is $25.00 Duval, States District Judge Stanwood R. addition to the usual yearly motor vehicle Reasons, Jr. In the Order and on entered licensing fee. An handling additional $3.50 29, August 2000, the district court found charged fee is to offset administrative plaintiffs that the had failed to show that a costs. injunction preliminary should issue with statute, Under the the fee will be $25.00 regard to their Establishment Clause deposited into treasury the state and court, however, claim. The district found thereafter distributed based on recommen- that the established a likelihood the Advisory dations of “Choose Life” of success on the merits of their free (“Council”). Council, Council com- speech claim. prised president designee of the or of the court, Before the district plaintiffs ar- Association, Family American the Louisi- § gued that La.Rev.Stat. 47:463.61violates Forum, Family ana and the Concerned the First Amendment to the United States organizations, Women America is re- Constitution because it discriminates based sponsible reviewing grant applications for viewpoint by only allowing “pro- making and regard recommendations with viewpoint life” expressed special to be via to the manner in which funds should be plates pro-choice license car owners distributed. gen- Distribution of the funds are given option of expressing erated the Choose Life plate license their view on their license plates. Defen- must be made to tax-exempt organizations dants that the argued Choose Life license provide “counseling and other ser- expression constitutes an of “state vices expec- intended to meet the needs of and, therefore, speech” did not create a tant considering adoption mothers private speech. forum for The district their unborn child” or “to meet the needs rejected court the argument of the defen- of infants awaiting placement adop- with dants. The district court concluded that in, parents.” Organizations tive “involved prestige plates “speech” are for the for, or associated with counseling or refer- purpose of First analysis Amendment to, clinics, rals abortion providing abortion- they a non-public constitute forum procedures, pro-abortion related adver- thereby requiring the State to maintain tising” disqualified receiving view-point neutrality regard with to the funds generated by the Choose Life messages displayed. The district court Plaintiffs filed a challenging lawsuit then concluded that as “the has tak- State constitutionality of La.Rev.Stat. 47:463.61 position en [the ‘Choose Life’] in the United States District Court of the message is its own ... it appears at this Specifical- Eastern District of Louisiana. juncture responsi- that the State fails in its ly, they allege subject bility forum, provide viewpoint-neutral abrogates right speech, to free con- probably [La.Rev.Stat. 47:463.61] will impermissible stitutes an establishment of be found to be an unconstitutional violation U.S. Const. and “controversies.” “cases” right to free First Amendment Ill, 2, doctrines that § cl. 1. Of the art. speech.”3 III, including under Article have evolved rejected the de- also district court mootness, political ripeness, and standing, decid- defendants. fenses raised litigant that the requirement question, ar- ripeness defendants’ the merits of ing impor- the most perhaps was that the case the court found gument, Wright, 468 U.S. Allen v. tant. See State, by statu- adjudication as ripe for L.Ed.2d prestige authorizing display torily (1984). This doctrine: non-public created a plates, had self-im- judicially several [E]mbraces viewpoint discrim- which allowed forum exercise of federal limits on the posed standing, the the defense ination. On prohibi- general jurisdiction, such analysis on not focus its court did district per- raising another litigant’s tion on a had established whether barring adju- rights, rule legal son’s constitutionality of grievances generalized more dication Instead, court Life statute. represen- in the addressed appropriately been speech free has that: “Once held branches, requirement the and tative manner, is no a there abridged in such fall within a the plaintiffs complaint that that proposition the supporting law case by the law protected of interests zone has been speech whose those individuals invoked. forum must particular in restrained 3315, 741, 104 82 express Id. U.S. at S.Ct. opportunity ... to have 468 an wait (citing Valley Forge Christian in that forum.”4 L.Ed.2d 556 viewpoint opposing an Separa such, unlikely College it v. Americans United concluded court As Inc., State, 454 and U.S. raised the defendants tion Church that the defenses of 752, 760, 464, 474-75, 70 L.Ed.2d recognized. be would (1982)). Standing, at its “irreducible 700 court, having that The district concluded minimum,” plain a requires constitutional had established likelihood plaintiffs they suffered an tiff demonstrate: “to of free on merits of success fact’; injury ‘fairly tracea ‘injury unlikely it that claim and that was speech actions; and the defendant’s ble’ to cognizable, grant- raised were the defenses ... redressed injury ‘likely will be (1) injunction thereby preliminary ed Citizen, decision.’” Public Inc. favorable implemen- and enjoining enforcement Cir.2001) (5th Bomer, 212, 274 F.3d 217 v. (2) § 47:463.61 tation La.Rev.Stat. Wildlife, Lujan v. (quoting Defenders li- halting production of the Choose 560-61, 555, appeal from plate. cense Defendants (1992)). injury “[A]n L.Ed.2d 351 119 injunction. preliminary granting order legally protected of a fact an invasion [is] (a) particu concrete and which is interest II. (b) imminent, larized, or not actual Standing Lujan, conjectural hypothetical.” 504 560, 112 2136. S.Ct. at U.S. at III

Under the dictates Article Constitution, judice, case sub federal of the United States they injuries all of which allege actual different to adjudicating courts are confined at, Henderson, Stalder, 4. Id. at 601. et 112 et al. 589, (E.D.La.2000). F.Supp.2d 599 Hawthorne, of the enactment of v. Board Educ. contend arise because It is on these Life statute. 96 L.Ed. the Choose (1952). predicated. must be injuries that any plain- now consider whether

We judice, taxpay- In the case sub the state fact, injury in which is tiffs have allege injury er first in the form to the Life statute fairly traceable Choose of the use of their state income tax dollars in the event that that will be redressed to manufacture and distribute the Choose uncon- enjoined declared and/or plate. Life license We find that this alle- will discuss each basis for stitutional.5 We gation standing purposes is insufficient for standing separately. it taxpayer does show the state plaintiffs have sustained or will sustain a Standing 1. Taxpayer pecuniary injury, injury direct i.e. an Henderson, Keeler, Lo- Plaintiffs fact, because of the manufacture or distri- LaMothe, allege ewy, and all of whom bution the Choose Life license they pay income tax to the State of Louisi predicated, This conclusion is part, ana, use of their allege injury based on the suggestion the fact that there is no (1) to make money tax and distribute prestige plates cost more for (2) for the plate Choose Life license to manufacture or State distribute to Life statute administration of motor vehicle drivers than do non-prestige and mainte including the establishment Second, plates. motorists who Life Council and nance the Choose elect to use the Choose Life license Supreme Fund. United States Court required pay regular the motor federal taxpayers, has held that state like registering vehicle license fee when ordinarily per lack taxpayers, a sufficient charge vehicles and an additional of $3.50 challenge general stake to laws of sonal to offset the administrative costs associat- injury is not applicability, since their own of li- prestige ed with the issuance the in by taxpayers distinct from that suffered See La.Rev.Stat. plates. cense Kadish, general. Inc. v. 490 ASARCO 47:463(A)(3) § of (requiring payment $3.50 2037, 2048, 605, 614, 104 U.S. handling charge to “offset the administra- (1989) (cit (plurality opinion) L.Ed.2d 696 for the issu- department tive costs of the Mellon, Frothingham v. ing Third, [prestige plates.”). license] ance of L.Ed. 1078 al- plaintiffs have not taxpayer the state (1923)). Therefore, in cases in which a they pay amount to the leged that challenges the constitution taxpayer state in of income taxes will the form law, State ality a state he “must be able to of the enactment of La. increase because of only show not that the statute invalid § that 47:463.61. We conclude Rev.Stat. immediately or is but that he has sustained by the state tax- injury complained injury danger sustaining in some direct i.e., enforcement, the use of tax dollars payer plaintiffs, merely result of its as a distribute way in in to manufacture that he suffered some indefinite and/or plate, is insufficient to Doremus Life license people generally.” common with Choose views; Loewy’s La- obliged jurisdic- and that raise the choice 5. This court is despite sponte by "religious tional issue of sua beliefs are harmed Mothe’s Moreover, parties’ to raise it. failure require development further statute” —do not allegations e.g., they plaintiffs’ skeletal standing to in order to assess their — taxpayers; are state that Keeler wants income the statute. purchase plate expressing pro- a license Fowler, injury Cmty. Orgs. complained as the confer for Reform (5th Cir.1999) best, and, most, Lu is, (quoting F.3d speculative at at 2136). 560-61, jan, 504 at 112 S.Ct. at generalized grievance com- constitutes find the Establishment Clause chal We in the payers mon to all tax state. LaMothe, lenge by Loewy, and the NCJW allege also taxpayer plaintiffs The state predicated injury conjec in based of their tax dollars injury based on the use and, therefore, ture insufficient for federal of La.Rev. provisions to administer standing purposes. argument ad 47:463.61, § require which the estab- Stat. by vanced these is that because lishment and maintenance of the attendant be comprised Choose Council is to “in- Life Council and Fund. This Choose belong organizations of individuals who jury” conjunction with the must be read allegedly espouse ideologies, Christian LaMothe, allegations Loewy, of plaintiffs Council, by presum actions taken Section of the Greater New Orleans ably regard with the manner which National Council of Jewish Women distributed, the Choose Life Fund is will (“NCJW”) allege that Christianity either advance or will other impermissibly Life statute advances Chris- religious wise interfere with their own be context, it tian fundamentalism. is, however, liefs or principles. There no appears injury complained by that the allegation mandatory that the members taxpayer plaintiffs state arises because yet any the Council have mon distributed use of their state income tax ey from the Choose Life Fund or that so dollars to administer a statute which vio- doing, distributions, contemplating they lates the Establishment Clause. actually religious advanced the ideol LaMothe, Loewy, Plaintiffs and the ogies of their respective organizations or injured allege they NCJW will be best, religion general. At the focus of implementation of La.Rev.Stat. alleged injury complained these 47:463.61 as that statute harms their reli- appearance arises because of an gious principles beliefs and endors- and/or impropriety, of future which we have found es Christian fundamentalism. In support Bomer, standing. insufficient to confer assertion, argue of this that these 274 F.3d at 218. Accordingly, we find that mandatory members of the Choose NCJW, Loewy, LaMothe and belong organizations, Life Council to alleging injury based on the manner in Association, namely Family the American which the Life Choose statute would be Forum, Family the Louisiana and the Con- administered, allege have failed to “an in America, cerned for all of which Women and, therefore, jury standing fact” lack allegedly espouse Christianity a belief challenge constitutionality to the facial of by as evidenced statements contained that statute.6 turnWe now to the com respective their internet web sites. plained injury of to taxpayer the state plaintiffs. consistently We have recognized that injury by taxpayer plaintiffs allege The state that “ standing purposes they injured must be ‘concrete and will be by the use of their imminent, particularized and ... actual or income tax to provi- dollars administer the conjectural not hypothetical’ pass to sions of the Choose Life statute. We constitutional muster.” held taxpayer standing Association that to establish of unavailability challenge lenge 6. The implementa- of a facial does at some future date after course, imply, as-applied that an chal- tion of this statute would be foreclosed. constitutionality Lujan, of a state a favorable decision” of the court. challenge 560-61, of the Establishment at at The on the basis 2136. statute Clause, “tax reve- must show that party injury complained by of Keeler is that she disputed prac- on the expended opportunity express nues has been denied the Dist., v. Duncanville Ind. Sch. tice.” Doe pro-choice point of view. The relief her Cir.1995).7 (5th 70 F.3d requested by declaratory judg- Keeler is a Life statute contradict terms of the Choose § ment that 47:463.61 is un- La.Rev.Stat. that state income plaintiffs’ allegation if the constitutional. We find even the adminis- would be used for tax dollars Life is Choose declared unconstitu- either the Choose Life Council tration of tional, would complained injury Keeler’s stat- Life Fund. Under the or the Choose remedy not be redressed as that will not ute, serve on a members Council provide express Keeler a forum which to “com- voluntary provided basis and are not Instead, pro-choice viewpoint. her the re- any type.” reimbursement of pensation or quested merely relief would function to 47:463.61(E)(1). § Addition- La.Rev.Stat. other motor drivers from prevent, vehicle payment ally, requires the statute point of view. expressing choose-life fee, in addition to the an additional $3.50 complained As we conclude that Keeler’s fees, to offset motor vehicle license regular injury by cannot be a declara- redressed administrative portion of the associated the court Life tion of the Choose 47:463.61(C). § these costs. Id. at Under unconstitutional, statute is we find she facts, injury complained find that the we does not have i.e., use of taxpayer plaintiffs, of the state constitutionality of that statute. tax dollars to administer their income and, statute, insupportable Organizational Standing 3. therefore, confer insufficient to Plaintiff Planned Parenthood of constitutionality that stat- challenge the (“PPL”) alleges Louisiana that La.Rev. ute. right speak Stat. 47:463.61 violates its in violation process and to due of the law Standing Individual of the First and Fourteenth Amendments injury alleges Plaintiff Keeler to the United States Constitution. on the enactment of La.Rev.Stat. based injury organization complained in that “there is no similar ‘Pro- 47:463.61 that, language of the Choose Life prestige to allow her Choice’ Statute, through ineligible grants it is pas her view on her express pro-choice Life Fund because it makes the Choose plate.”8 car license We find that senger engages to abortion clinics and referrals alleged injury fails under the third advertising. pro-choice purposes. requirement standing for federal to organization standing “An has challenge the standing To establish statute, if it meets the same sue on its own behalf constitutionality of a applies to individuals.” injury standing which he test must show that the about Fowler, Havens by (citing 178 F.3d at 356 complains “likely will ... be redressed allegedly general taxpayer unconstitutional test for stand- revenues on 7. Unlike Cohen, ing, requires injury” to the tax- program. which “direct 392 U.S. Flast ASARCO, Supreme payer, supra, (1962). See 20 L.Ed.2d cases Court’s test in Establishment Clause requires only taxpayer income status ¶ Complaint, 20. 8. Amended showing expenditure a direct of income tax Coleman, Realty Corp. v. 378-79, 71 L.Ed.2d plate.' such applicants one hundred for (1982)). PPL find that fails We plate The license shall be restricted to redressibility requirement of satisfy the cars, trucks, vans, passenger pickup injury com- standing. Article III plate The license recreational vehicles. by PPL arises from plained of by design shall be of a color and selected grants to receive eligibility exclusion from pro- Advisory the Choose Life Council Fund because it from the Choose Life compliance vided it is in with R.S. activities. The engages in abortion-related 47:463(A)(3), legend and shall bear the PPL in federal court is requested by relief Life”. “Choose that La.Rev.Stat. declaratory judgment prestige plate B. The license shall be § We find 47:463.61 is unconstitutional. issued, upon any citizen of application, if Life statute is that even the Choose any Louisiana in the same manner as unconstitutional, injury com- declared other motor vehicle license by PPL would not be plained of redressed special pres- C. The annual fee for this no fund from because there would then be twenty-five tige plate shall be grants. PPL As we con- could seek dollars, regular motor addition by injury complained clude that provided vehicle license fee R.S. judicial PPL would not be redressed 47:463, to be distributed in the manner § 47:463.61 declaration that La.Rev.Stat. F set forth Subsection of this Section unconstitutional, that PPL we find has fifty and a han- three dollar and cent it has not established dling depart- fee to be retained challenge that statute.

ment to offset a of administra- portion tive costs. III. department D. The shall collect the fee in this case

We hold prestige for the and for- they have not shown that ward the fee to the state treasurer for constitutionality of Louisiana deposit treasury. immediate on the state § Rev. therefore find Stat. 47:463.61. We injunction granted by preliminary that the (1) Council, Advisory E. A judge the district court must be dismissed “Council”, hereinafter referred to as the jurisdiction lack under of federal court design shall be established to and review III of Article the United States Constitu- grant organi- applications qualifying tion. zations, and shall make recommenda- regarding awarding grants tions the district court is judgment of to the state treasurer. Members of REVERSED, VACATED, and REMAND- terms, one-year Council shall on a serve entry ED for an of dismissal. basis, voluntary commencing October A Appendix 1, 1999, and compensa- shall receive no tion of any type. or reimbursement pro- Louisiana Statute 47:463.61 Revised hereby Council members are authorized vides: to serve successive terms. The Council secretary Department A.The of the annually, shall meet at least and shall be Safety Public and shall Corrections es- comprised following of the members: special prestige tablish a (a) LIFE” president, designee, be known as the “CHOOSE The or his plate, provided Family there be a minimum of from the American Association.

(b) affirming qualifications, davit president, designee or his The spend shall include a the mon- Family pledge Forum. from the Louisiana iney provisions accordance with the (c) designee, or his president, Section, to the Council and shall for America from the Concerned Women under qualify exempt as tax Section organization. 501(c)(3) Internal revenue Code Council, (2) of the At the discretion Furthermore, an or- amended. extended to add membership may be receipt ganization wishing qualify for representing following: members it provides of funds shall demonstrate (a) in obstet- Physicians specializing counseling and other services intended rics. expectant to meet the needs of mothers (b) Physicians specializing pedia- considering adoption for their unborn trics. deposited child. No into the monies (c) who have surrender chil- Women any organi- fund shall be distributed to adoption. for dren in, zation or with involved associated for, to, counseling or referrals abortion (d) Couples adopted who have chil- clinics, medical providing abortion-relat- dren. procedures, pro-abortion ed or advertis- (e) advocacy groups. Adoption ing. (f) Board-certified social workers. (3) Organizations monies un- receiving (g) counselors. Certified fifty der this Section shall use at least (1) the re- compliance F. After with percent provide of such funds to 9(B) VII, quirements of Article Section expectant material needs of mothers of Louisiana relative of the Constitution considering their unborn adoption for Security Redemption to the Bond child, housing, medi- including clothing, Fund, equal an amount to the monies utilities, care, food, transporta- cal treasury by pursuant the state received may be used to tion. Such monies also D of this provisions Subsection awaiting place- meet the needs of infants deposited into the shall be Section re- adoptive parents. with ment Fund, hereby which is cre- maining may be used for counsel- funds special as a fund the state trea- ated pregnancy ing, training, providing referred to as the sury and hereafter be for admin- testing, but shall not used unexpected “Fund”. All and unencum- istrative, legal, capital expenditures. in the fund at the end of bered monies treasurer, on the The state based G. shall remain in the fund. year the fiscal Council, shall recommendations of the in the fund shall invested Monies be disburse from the funds annually in the same manner the state treasurer qualifying equal amount to each general fund and as monies the state available, make organizations, and shall on the investment of interest earned the name and the amount upon request, deposited monies shall be into such organiza- each of monies disbursed to only in the fund shall be fund. Monies organization receiving An monies tion. to an pursuant appropriation withdrawn to sub- may required the fund be solely purposes for the legislature by a certi- prepared mit an annual audit by this Section. provided accountant, discretion public at the fied (2) wishing qualify and the Council. organization An of the state treasurer treasurer and the Council an affi- The state receipt of funds shall submit 384

alleged wrong plaintiff in federal court. A cannot have unless he or she expen- and shall review the distribution alleges “personal injury fairly traceable to funds under this Section at diture of allegedly the defendant’s unlawful conduct every years three to ensure least once likely request- and to be redressed expended in funds are disbursed and 737, Wright, ed relief.” Allen v. 468 U.S. provision of this accordance with the 751, 3815, 3324, L.Ed.2d 556 104 S.Ct. 82 Section. (1984). discriminatory An allegation of may rules secretary H. The establish others, more, favoring benefit without can- regulations implement provi- and requirements. not meet these Section, including of this but not sions suggests II that in a Part dissent regulations govern- rules and limited to leg- First Amendment facial to a ing the collection disbursement enactment, require- islative Article Ill’s fees, disposition of such the transfer and re- injury-in-fact, ments of causation and available, plates, the colors dressability need not be met. But these design criteria. requirements optional. are not “Those JONES, Judge, EDITH H. Circuit Ill possess standing may who do not Art. concurring: in litigate as suitors the courts of the I fully Judge opin- concur Barbour’s States,” Valley Forge United Christian I separately respond ion.1 write College v. Separa- Americans United for points by Judge few made Davis his State, 464, tion Church and 454 U.S. dissent, though even the dissent touches 475-76, 752, 760, 102 S.Ct. 70 L.Ed.2d 700 only standing. plaintiff Keeler’s (1982); injury-in-fact, causation and redressability I are the three essential ele- respectfully disagree Judge with of the conceptualization Davis. His of Keeler’s ments “irreducible constitutional minimum alleged injury standing” required by would take us far afield Article Lujan Wildlife, III III. v. requirements from the of Article of the 504 Defenders of 2130, 2136, 112 general proposition, Constitution. As a a U.S. 119 (1992).2 requirements L.Ed.2d 351 plaintiff complains merely who that a ben- unconstitutionally granted apply efit has been First Amendment cases no less cases,3 only including others is than in other cases in asserting “generalized plaintiff which a grievance” challenges that does not an enactment allow See, Valente, judicial e.g., on its face. Larson v. standing to obtain relief for the Valley Forge College, 1.We have treated this case as if it involved no 2. See Christian U.S. 454 at 102 S.Ct. at more than the First Amendment conse- 758. See also Raines v. 811, 818-20, quences Byrd, legislature’s 521 U.S. 117 S.Ct. decisions to allow 2317-18, (1997). groups specialty plates. 138 L.Ed.2d 849 to obtain however, program, complex, entire is more See, FW/PBS, Dallas, involving e.g., City the transfer of excess revenues from 3. Inc. v. 493 215, 230-36, 596, 607-10, program private groups, to various such 107 Keene, (1990); adoption agencies pro-life in the case of the L.Ed.2d 603 Meesev. 465, 472-77, 1862, 1866-69, plates. might It well be contended that the (1987); adopted program adop- Valley Forge state has to foster L.Ed.2d 415 Christian 488-90, "selling” specialty plates College, tion means of 454 U.S. at 102 S.Ct. at 767- 68; Herman, appellees’ standing Society Separationists like-minded citizens. The view, founder, (5th Cir.1992) banc); my (en would nevertheless un- F.2d Parish, analysis just Judge der such an as it does in Doe v. Sch. Bd. Ouachita F.3d (5th Cir.2001). opinion. Barbour’s 291-92

385 Id. at 271, 233-86, 238-44, pay.” 99 228, 102 not be ordered S.Ct. 456 U.S. 1680-83, 1677-79, L.Ed.2d 33 1673, 72 not clear whether he S.Ct. at 1107. It was (1982) plaintiffs had Article (holding Id. & n. sought alimony also for himself. bring III Establishment an unfa- Supreme 2. The Court reversed applied and challenge to statute Clause ruling concluding vorable state court after face).4 on its had to raise his chal- that Orr Further, part II of the cases cited lenge. support fail to his

Judge Davis’s dissent noted that it was Supreme Court those cases argument. “possible” ruling that a favorable for Orr of Article actually requirements met him ultimately bring in the Court “will not III, redressability require- including its alimony judgment out- relief from the Keeler, not true of ment.5 This is him, as the could standing against State not re- remedy seeks a that would who respond by neutrally to a reversal extend- injury. dress her ing alimony rights needy husbands as argues plain- Part III of the dissent Id. at 99 at well as wives.” La. challenge this case to tiff Keeler’s no of way “ha[d] 1108. Because the Court of requirements R.S. 47:463.61 meets in fact knowing how the State w[ould] cases cited for this Article III. The two respond” ruling striking to a down the In Orr v. distinguishable. argument laws, alimony standing. had state’s Orr Orr, 1102, 268, 59 440 99 S.Ct. U.S. Id. To hold otherwise would be “to hold (1979), appellant sought L.Ed.2d 306 can never be that underinclusive statutes required pay ruling that he “not be any challenged success if wives could because alimony similarly situated Co., tution.”) standing prin (citing Joseph H. Munson 467 Although prudential various 4. 955, 2846). at First U.S. at 104 S.Ct. ciples have been relaxed in some cases, does not Amendment this relaxation independent re part eliminate the distinct of the cases cited in II of all but one dissent, dispute quirement III that the be Judge appellant appel- of Article Davis’s or parties must amount to a case or complained tween of a First Amendment lants who controversy. Sec’y Md. v. Jo violating See State been convicted of violation had of of Co., Inc., 947, statute; seph 467 H. Munson 956- a favorable decision ordinance or 58, 2839, 2846-47, 786 104 S.Ct. 81 L.Ed.2d con- Supreme Court would invalidate the (1984). Valley Forge Col appellant See also Christian of each or viction or convictions 475, (satis lege, at 760 only 454 U.S. at 102 S.Ct. group appellants in these cases. The of requirements prudential standing of exception City faction of v. Dealer Lakewood Plain 750, 2138, require Co., III cannot substitute for Article 486 U.S. Pub. ments); Superi (1988), newspaper Lac VieuxDesert Band Lake in which a L.Ed.2d 771 Gaming Chippewa Control Indians v. Mich. publisher brought a to a stat- facial Cir.1999). Bd., (6th permit 172 F.3d Com requiring publisher to obtain a ute Morales, City Chicago pare public prop- placing newsracks on before 1849, 1858 n. erty. 55 n. The statute obstructed exercise J., Stevens, (1999) (opinion rights; L.Ed.2d 67 in- publisher’s First Amendment Souter, J., J.) (“When Ginsburg, unconstitutionality joined validating the statute for challenge, asserting party City seeks to a facial Lake- would remove this obstacle. rights, only Judge point own but those of prove vindicate not his Davis’s if wood would adversely impacted injunction may sought be obtain an publisher others who also had sense, question. newspaper placing preventing statute in In this another species property, challenges private and if newsracks on threshold facial tertii) newspaper had stand- (jus standing, we that the party Court had held third rival; injunction against its but prudential ing recognized as a doctrine seek these were not the facts. by Article III of the Consti- not one mandated (em- merely Id. of a theoretically present “possibility” can be thwarted.” wrong in The Court went on to result that would not phasis original). redress holdings plaintiff complains. of the Alabama which the If the relief say “[t]he appellant’s a total bar to is no requested by granted, courts stand as Keeler is there relief; attack holds the his constitutional that the relief will possibility whatsoever from the burden only promise escape in any constitutionally cognizable redress challenged statutes.” that derives from jury-of-fact of which she could be said to at 1108. that, Id. at a complain. Invalidating theory, third-party Keeler’s allows anti Project, Inc. v. In Arkansas Writers’ speakers abortion to exercise their First 1722, 95 Ragland, 481 constitutionally in rights Amendment a (1987), the Arkansas Writers’ L.Ed.2d 209 protected nothing help forum will do to Project, sought Inc. a refund of sales taxes speak alleged Keeler within that forum.6 statutory it that a tax paid, arguing had sought by The relief cannot Keeler redress exemption must be extended include injury the constitutionally cognizable 225, 107 magazine that it Id. at published. complains. which Keeler Friends appeal Supreme at 1725. to the 5.Ct. On Cf. Earth, Inc. v. Environmental Laidlaw court, the state revenue commissioner ar (TOC), Inc., 167, 185, Servs. 528 U.S. Project gued that the lacked (2000) (“a S.Ct. 145 L.Ed.2d 610 challenge the tax because its scheme standing sepa must demonstrate by a injury claimed could not be redressed rately sought”). for each form of relief rejected decision of the Court. The Court standing, this view of which “would effec Second, Keeler’s constitutional attack tively underinelusive statutes from insulate only promise does not of es- “hold[] we challenge, proposition constitutional cape from the burden that derives from soundly rejected Ragland, in v.Orr Orr.” the challenged statutes.” Keeler and the (citation 481 U.S. at 107 S.Ct. at 1726 other in this action have chal- omitted). decisions, previous Court 47:463.61, lenged only La. R.S. not the said, it had “considered claims that others (either other statutes that Louisiana alone similarly exempt from the situated were statute) conjunction or viewed in with this operation adversely affecting of a state law could be said constitute the scheme that Quoting “only the claimant.” Id. Orr’s alleged causes the constitutional violation promise escape” language, the Court plaintiffs complain. Only of which the if Project alleged concluded that the had an challenged Keeler the broad scheme for adequate in personal stake the outcome of specialty plates would she be the same 227, 107 litigation. at S.Ct. at position as the appellant Orr. Favorable 1726-27. The held on the Court merits redress could then result either exemp that the Arkansas “tax”—not the allowing state’s her to place pro-choice tion—violated the First Amendment. 481 specialty sentiments on or in plates 234, 107 U.S. at at 1730. shutting alleged the state’s down the First Rag- This case is different from by banning, ceasing Orr Amendment forum First, land for at least two reasons. hold- all sponsor, specialty plates. But this is ing favor of Keeler in this case would not aim. Keeler’s Judge hypothesizes plate.” euphemistic: Davis that "a declarato- This is such a declara- ry judgment might in Keeler’s favor also have tory judgment would such effect— removing granted the effect of the benefit immediately question. and without display those who wish to the Choose Life prevent other function merely would view note, Judge Davis’s final As a expressing drivers motor vehicle First transform the would point of view. choose-life censorship a device into Amendment free enhancement than rather injury in dif- define Keeler’s I would ju speech free traditional speech. Under manner. ferent speaker’s remedy for the risprudence, and Four- the First rights under their to admit a forum is unjust exclusion violated be- been have teenth Amendments words, afford to in other speaker, the of part Legislature, the cause Louisiana Rosen plates. specialty to access Keeler has plate program, license specialty Virginia, the Univ. Rector berger v. of of This Life statute. the Choose enacted 845-46, 828-30, the choose of expression statute allows 2524-25, 2516-17, 132 L.Ed.2d prestige on state message life of Keel- acceptance (1995). Judge Davis’s expression the allowing for plates, without to lead instead injury would of concept er’s in viewpoint pro-choice opposing the of single speaker reflecting of a the removal — allege and plaintiffs The same forum. that the fo viewpoint anti-abortion the —from an Louisiana concedes that the State enlargement corresponding rum, no with fact- allows the state anti-abortion The Keeler. opportunity speaking of Legisla- that Louisiana finder to infer only fails by Keeler not sought “redress” authorizing pass a statute will not ture depri alleged constitutional her repair to message.1 choice of a choose expression be, I am as far as vation, it would but the district alleged have plaintiffs contrary fundamentally aware, unique engaged has the State that court found speech. free to the law authorizing viewpoint discrimination result, As a the Choose Life DAVIS, Judge, Circuit W. EUGENE given will not be not and are plaintiffs dissenting: view- opposing speak their to opportunity conclusion majority’s disagree I with words, In other same forum. that point standing to no have govern- injured by plaintiffs are challenge to First Amendment bring their the debate side of of one promotion ment’s I there- Life statute. Choose Louisiana’s in a speech rights issue the abortion fore dissent. opportuni- lack forum, with the coupled “[U]n- view. opposing ty present

I. Clause, not to Protection Equal der the itself, gov- Amendment First mention the Keeler holds majority a forum use of grant the may not ernment La. R.S. standing to lacks acceptable, finds views it people whose Life because, if the Choose even 47:463.61 wishing express to those unconstitutional, deny but use Keel- is declared views. more controversial favored or less not be injury would complained er’s issues select which may not And it remedy will because redressed fa- public debating discussing or worth in which a forum Keeler with provide of status ‘equality is an There cilities. viewpoint. pro-choice opposing her express must ideas,’ government field of view, relief requested majority’s In the that, Legislature, the Louisiana last session abundantly since clear been made has This a “Choose have authorized passed, if would briefs After initial appeal was filed. this was amendment plate. The case, Choice” license an amendment this filed in were rejected. in the legislation was introduced points equal all view opportur an news rack ordinance. On the issue of afford nity to be heard.”2 standing, Supreme Court, with no mention of requirements the three listed

II. above, held that the newspaper bring could a facial challenge to As statute without an injury applying for permit raising concerns, require- First because the Amendment ment of an annual permit court may properly potentially apply expanded no- threatening speech, tion of the license is to determine aimed may who at expressive institute conduct a suit for and the licensing relief.3 The majority system opinion threatens freedom expression addresses standing utilizing the because it system traditional creates a requirements by which injury-in-fact, speech is causation reviewed without standards.5 redressability. Although standards, Without below, speakers discussed I would denied a li- find that cense will way Keeler have no prove satisfies all to that requirements, a analysis against decision may application not applicable be was un- to this case. constitutionally Co., v. motivated. Lakewood Plain Dealer Such uncer- Pub. tainty Supreme compel can Court self-censorship stated specifically, when speakers conform their speech to the li- Recognizing the explicit protection af- censor’s preferences.6 Generally, a facial forded speech and press in the text challenge to licensing a law lies where the Amendment, of the First our cases have gives law government a official or agency long held that when licensing a substantial power to discriminate based on allegedly vests unbridled discretion in a content or viewpoint of speech by sup- government official over whether per- to pressing speech disfavored or speakers deny mit or expressive activity, one who and the law has a close nexus to expres- is subject to the may law challenge it sion.7 facially necessity without the ap- first

plying denied, for and being a license.4 Although cases under precedent case, In that a city gave ordinance generally deal with situations which a mayor unfettered grant to single discretion or government official is given the dis- deny permit a for placing newspaper dis- cretion under the grant statute to deny or pensing public devices on property. The a license affecting expressive activity, I plaintiff newspaper did apply not for a see no reason why principle should not permit but brought suit challenge be applied to this case.8 parties Both 2. Dep’t Police Chicago Mosley, v. 408 U.S. Maryland, 8. Freedman v. 380 U.S. 92, 96, 2286, 2290, 92 S.Ct. 33 L.Ed.2d 212 (1965) ("In 13 L.Ed.2d 649 added)(internal (1972)(Emphasis citations area of expression freedom it is well estab omitted). lished that one has a ground statute on delegates that it overly 3d, 3. Moore’s § Federal Practice 101.61[5][a]. licensing broad discretion to an administra office, tive whether or not his conduct could be Co., 4. Lakewood v. Plain Dealer Pub. proscribed by statute, properly drawn 750, 755-56, 2138, 2143, ") (em whether applied or not he a license for (1988). L.Ed.2d 771 added); phasis Alabama, Thornhill v. 84 L.Ed. 1093 5. Id. at 2145-46. (1940) (in context, the First Amendment might "[o]ne who 6. have had a Id. at license for asking may question ... caE into the whole 7. Id. licensing scheme of prosecuted when he is for Maryland, no ordi- In Niemotko li- sis.10 prestige messages agree or place regulating inwas or statute nance ad Louisiana’s speech. plates cense Rather, the park.11 the use of prohibiting or de- granting process legislative hoc authority developed vesting had practice prestige authorization nying park of the for the use grant permits licensing process analogous to is plates City Commissioner the Park activity. expressive access to obtain stated, standards “[n]o The court Legisla- Council. the Louisiana gives process limi- narrowly drawn no anywhere; appear mes- over discretion unbridled ture similar absolute tations; circumscribing of this no which dis- plates, prestige sages on com- of the interest no power; substantial the size only by limited cretion all It clear that munity to be served. au- if the Clearly decision itself. plate invalidity said about the that has been made being were plates specialty thorize equally must be limitless discretion such commission official or government by a lack Accordingly, here.”12 applicable legisla- by the delegated authority under li- specialty establishing the of a statute commis- the official ture, actions of prevent should program review. cense judicial subject be sion would chal- a facial bringing in the directly authority Leaving authorizing for system to the State’s lenge should legislature the Louisiana hands of plates. license specialty analysis.9 change the not ap- just statute is one The Choose single statute is no that there The fact by the Louisi- adopted policy of a plication specialty establishing Louisiana’s specialty to authorize legislature ana analy- affect our not does plate program order, health, decency, good safely, peace, it”). Shuttles See also procure to failure Supreme Court 151, 147, or convenience.” morals 89 Birmingham, 394 U.S. v. worth written, as it was ordinance (" that this (1969) decided 935, 'The Con 162 22 L.Ed.2d S.Ct. many deci- the ambit squarely within fell deny to one thought to hardly be can stitution subject- holding that a law of the Court sions licensing law] [aof subjected to the restraints freedoms of First Amendment ing the exercise constitutionality, be its right to attack the ” license, without of a prior restraint to the demands’ yielded to its he has not cause narrow, standards objective, and definite 584, 602, Opelika, U.S. v. 316 (quoting Jones authority, is unconstitu- licensing (Stone, guide the (1942) 1231, 1691 86 L.Ed. tional. J., re adopted per curiam on dissenting), C. 890, 104, 103, 87 S.Ct. hearing, U.S. 63 319 47:463.A.(3) a such statute. (1943))); Griffin, 303 is not v. 10. La.R.S. Lovell 1290 L.Ed. 669, plates 666, specialty license 452, merely that 444, 949 states 82 L.Ed. It S.Ct. 58 U.S. legislature "shall contain by the ("As [providing for un (1938) authorized the ordinance accompa- alpha-numeric series uniform void on licensing discretion] bridled representing by symbol or emblem a appellant to nied face, necessary was not it plate.” a requesting such it”). organization permit a under seek that requirement also contains statute 15, in- August 1999 shall plates issued after Birmingham, 394 U.S. Shuttlesworth 9.In no handling charge $3.50 that clude 935, L.Ed.2d 162 22 January after established plate be shall by the (1969), issued parade were permits min- department received a has until the 2002 Commission, legislative branch. city’s applications for of one thousand imum upon the ordinance conferred case the any prohibit power City Commission "demonstration” or "procession,” "parade,” L.Ed. 11. 340 ways. In decid- public city’s or streets on the (1951). permit, or to withhold ing whether guid- were to be Commission members welfare, Id. "public only by ideas of their own ed plates on an ad hoc basis. It is clear A has standing to seek relief in against attacks an policy unwritten or a case such as this when aggrieved she is practice regarding statute, the issuance licenses like the Life legisla- speech tion, subject to the same consti- that is A person underinclusive. tutional analysis group as an attack on a excluded statute conveyed benefits via or ordinance and should fall within underinclusive statute has standing to same standing analysis challenge set forth in the statute Lake- on constitutional wood. In grounds. summary, at its core I This is so if view even this effect of case as indistinguishable striking down the from the statute is to deny decision benefit to the on intended group Lakewood standing. issue not ex- Further, tend it to plaintiffs. I see principled no For why example, reason Orr, v.Orr a man plaintiffs raising who had speech free been ordered claims in this pay alimony to case his wife do not have under state standing to laws attack the husbands, providing that wives, Choose Life but not aas applica- discrete may required be pay alimony upon tion of di- policy Louisiana’s regarding autho- vorce, had standing the consti- rization of specialty license plates. This is tutionality, equal protection grounds, of single statute under program laws, such alimony notwithstanding that offends them and I see no reason to re- the man made no claim being entitled to quire them challenge.the entire special- an award of alimony from his divorced wife ty program.

but challenged only the unequal status of husbands and wives as to the burden of III. alimony.13 Plaintiff Keeler also has using The Supreme Court applied this concept the analysis by traditional outlined the ma- to a speech free claim in Arkansas Writ- jority opinion. Plaintiff injury Keeler’s is Project, ers’ Inc. v. Ragland.14, Rag- In personal, not a generalized grievance, land, the state of imposed Arkansas based on allegation the that she would personal property tax receipts on from purchase a prestige plate express- license sales of general interest magazines, but ing pro-choice her views but unable to exempted receipts derived from the sale of do so. Based on these allegations, the newspapers religious, professional, to, harm is fairly traceable and the direct trade sports journals. publisher The of, result Also, the State’s conduct. the Times, Arkansas general a interest alleged harm is likely to be by redressed magazine, contested the assessment of tax- the requested relief. The requested relief against es it on the basis that subjecting is that enjoin the implementation court the the Arkansas tax, Times to the sales while of the Choose Life statute and declare it sales of newspapers and other magazines unconstitutional. While this relief will not exempt, were violated the First and Four- allow to speak in the specialty teenth Amendments. The Arkansas forum, license plate it will have the effect Times is a magazine that includes articles of preventing the State manipulating variety on a subjects, of including religion the content public by debate presenting sports, but qualify does not only the view by favored the state. one of the topic based exemptions. 268, 1102, 13. 440 U.S. 221, 99 S.Ct. 59 1722, L.Ed.2d 14. 95 L.Ed.2d (1979). 306 (1987). 209

391 statute, the Life like ing. The Choose that ex similar position Taking Ragland, grants in exemption the Com sales tax majority opinion, the pressed argued to a select speech Revenue of Arkansas related privilege missioner Arkansas case, was privilege that Court In our Supreme group. support not have did on the state’s granted Times based tax. The Commission sales the Arkansas Life in the Choose expressed viewpoint con appellant that since (There contended er appear does not is not Arkansas Times that ceded Ragland.) in discrimination viewpoint be it journal, sports or religious newspaper bring her claims does standing to Keeler’s be injury that could not had asserted seeks the lawsuit depend on whether not a favorable decision redressed It for herself. obtain the benefit argument Commissioner’s court. Keeler sufficient, Ragland, that based on Arkansas conclusion of on the built discriminatory benefit to remove seeks [ap avail “[I]t that would Court Supreme speech in a context. favoring others ... argument if it wins its nothing pellant] words, manipulation the State’s other in favor exemption that an immaterial It is authori- by the speech field for playing invalid, as may be taxpayer of some other like plate, zation of the Choose so, exemption it discriminatory. If is the in is a burden Ragland, exemption the tax fail, against tax would Keeler. Re- rights of speech the free on Ar v. [Ragland ... Times. [Arkansas] will discriminatory program moval of Inc., Ark. Project, Writers’ kansas as it injury. Just Keeler’s redress [(1985)].”15 [802], at 803 155] S.W.2d the effect Ragland in immaterial was argu rejected this Supreme Court exemption tax challenged declaring “would ment, position that such a stating applicable the taxes might invalid increase statutes underinclusive effectively insulate creating a (possibly publications to some proposition challenge, a from constitutional it is immaterial speech rights), burden Orr, 440 rejected Orr soundly we Keeler’s declaratory judgment that a L.Ed.2d of remov- the effect also have might favor (1979).” a decision The fact that wish to those who ing granted the benefit result would not favor plate. the Choose display extended being exemption tax the sales litigation nothing Further, more of this do the outcome and would publications all a exemption in authorization the benefit the than not result remove need a prevent was the speakers did not As other license from Choice Choose standing. Orr, had Keeler appellants that the finding plaintiff Ragland case discriminatory ex quest The Court viewed in her to declare may prevail on a burden granted to others emption unconsti- Life license “constitution plaintiffs. authorization not achieve tutional and escape only promise holds al attack for a Choose legislature Louisiana from the that derives from the burden It sufficient plate.17 Choice challenged statut[e].”16 Keeler, seek, as does Plaintiff plaintiff discriminatory bene- simply remove presents a today’s case a thereby create granted to others fit for stand- similar, stronger, case and even 1102, Ragland at 17. Orr at Id. at 1726. 15. 1726-27. quoting Ragland at 16. 273, 99 S.Ct. 1102. Orr at Orr v. level playing field for all affected plaintiff find that and, Keeler has standing statute. Keeler sufficiently merits, has a on the I would affirm the district personal stake outcome of this litiga- preliminary injunction, court’s essentially tion and this constitutional attack holds the for the reasons stated by the district court only promise escape from the burden entry remand for permanent in- her speech rights free that derives from junction against implementation of LA. challenged statute.18 R.S. 47:463.61.

IV. In I summary, would find Keeler has standing to assert her First Amendment claims. Under relaxed stand-

ing principles recognized in First Amend- cases, ment she has standing bring facial challenge to the Choose Life statute.

This statute is application of Louisiana’s VALDEZ, Alberto Petitioner-Appellee, system of permitting the state legislature to authorize specialty plates with- out constraints, standards or which in this COCKRELL, Janie Director, Texas De promotes instance sponsored state view- partment Justice, of Criminal Institu point addition, In discrimination. applying Division, tional Respondent-Appel traditional analysis, I would hold lant.

that Plaintiff Keeler has per- established a No. 99-41216. sonal injury fairly traceable to the defen- dant’s allegedly unlawful conduct that United States Court of Appeals, likely to be redressed the requested Fifth Circuit. relief. April case, the state sponsored the viewpoint of a group. select This bur- Jeffrey Scott Levinger (argued), Car- dened those holding contrary view who Coleman, rington, Blumenthal, Sloman &

were express unable to views TX, Dallas, (ar- William David Underwood state sponsored forum. Ragland, As in gued), Waeo,,,TX, for Petitioner-Appellee. plaintiffs “constitutional attacks holds the only Gregory Scott promise (argued), Coleman escape from Lisa burden Royce Eskow, Parenti, derives Bishop Meredith challenged from the statute.” TX, Austin, Stated differently, Respondent-Appellant. the majority’s unduly narrow application of standing principles

to this First Amendment case precludes

any plaintiff attacking the constitu- tionality of the Choose Life statute. ON PETITION FOR PANEL RE- Because majority dismissed this case HEARING for lack of standing, the court does reach the merits of the injunc- preliminary

tion. above, For reasons stated I would Id.

Case Details

Case Name: Henderson v. Stalder

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 4, 2002

Citation: 287 F.3d 374

Docket Number: 00-31171

Court Abbreviation: 5th Cir.