                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2001

ACLU NJ v. Twp of Wall
Precedential or Non-Precedential:

Docket 00-2075




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Recommended Citation
"ACLU NJ v. Twp of Wall" (2001). 2001 Decisions. Paper 66.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/66


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Filed April 3, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2075

ACLU-NJ, AMERICAN CIVIL
LIBERTIES UNION OF NEW JERSEY,
on Behalf of its Members,
ELEANOR MILLER; RANDY MILLER,

v.

TOWNSHIP OF WALL

ACLU-NJ, American Civil
Liberties Union of New Jersey;
Eleanor Miller; Randy Miller,

       Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
(Dist. Court No. 99-cv-00751)
District Court Judge: Alfred M. Wolin

Argued on January 22, 2001

Before: NYGAARD, ALITO and ROSENN, Cir cuit Judges.

(Opinion Filed: April 3, 2001)
       LEWIS H. ROBERTSON
       231 Maple Ave.
       Post Office Box Y
       Red Bank, NJ 07701

       RONALD K. CHEN (Argued)
       Rutgers University
       Constitutional Litigation Clinic
       123 Washington St.
       Newark, NJ 17102

        Counsel for Appellants

       KEVIN H. HASSON (Argued)
       The Becket Fund for Religious
        Liberty
       1350 Connecticut Ave., N.W.,
        Suite 605
       Washington, DC 20036

       BETH POLLACK
       McLaughlin Bennett Gelson &
        Cramer
       1305 Campus Parkway
       Monmouth Shores Corporate Park
       Neptune, NJ 07753-6819

        Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal from a District Court decision holding
that a holiday display exhibited by Wall T ownship, New
Jersey, did not violate the Establishment Clause of the First
Amendment. We hold that the plaintiffs lack standing
under Article III to challenge the display to which they now
object, and we therefore vacate the decision of the District
Court and remand for dismissal of the complaint.

I.

Since at least 1997, Wall Township has exhibited a
holiday display near the entrance to the municipal building

                                 2
housing much of the Township's government. The
individual plaintiffs in this case, Eleanor and Randy Miller,
are taxpayers and residents of the T ownship and members
of the organizational plaintiff, the American Civil Liberties
Union of New Jersey ("ACLU"). The Millers fr equently visit
the complex in which the municipal building sits for a
variety of personal and professional reasons.

In 1998, while visiting the complex, the Millers observed
the Township's holiday display and found it objectionable.
The display consisted principally of a creche with
traditional figures, a lighted evergr een tree, two decorated
urns that are part of the complex, and four snowman
banners attached to light posts at the complex.

On February 18, 1999, plaintiffs brought suit in the
United States District Court for New Jersey, alleging that
the display violated the United States and New Jersey
Constitutions. Plaintiffs sought declaratory and injunctive
relief.

In July 1999, the Township moved to dismiss plaintiffs'
complaint for lack of standing. The Court denied
defendant's motion on October 5, 1999, finding that the
plaintiffs possessed standing as a result of their "direct
personal contact with the government-sponsor ed religious
display" that has made them "feel less welcome, less
accepted, tainted and rejected."

In December 1999, the Township again exhibited a
holiday display. The 1999 display was differ ent than the
1998 display, however. In addition to a cr eche, the 1999
display included a donated menorah, candy cane banners
rather than the less prominent snowman banners, a larger
evergreen tree, and two signs r eading: (1) "Through this and
other displays and events through the year , Wall Township
is pleased to celebrate our American cultural traditions, as
well as our legacy of diversity and freedom" and (2) "Merry
Christmas Happy Hanukkah." Second Affidavit of Randy
Miller PP 5-6, 10-11 ("Mr. Miller II") (Appendix at A44-A45
("App.")); Declaration of Joseph Verruni PP 5-6, 8 (App. at
A59-A60); see also Declaration of Michael D. Fitzgerald
PP 3-4 (App. at A53); Declaration of Michael D. Fitzgerald
PP 3-4 (App. at A81-A82).

                                3
Mr. Miller observed the modified display on December 2,
1999. On December 20, 1999, plaintiffs moved for a
temporary restraining order and pr eliminary injunction. At
a December 23, 1999 hearing, the Court denied plaintiffs'
motion for a restraining order due to plaintiffs' delay in
seeking relief and, pursuant to Fed. R. Civ. P . Rule 65,
consolidated plaintiffs' motion for pr eliminary injunction
with a future trial on the merits.

In early 2000, the Township moved for summary
judgment. The District Court invited and received
additional evidence from the parties, including a January
26, 2000 Township resolution directing the purchase of
"twig-style reindeer and a sleigh" to add to the display and
formalizing the future components of the display.

Based on the evidence submitted and without a for mal
trial, the District Court ruled on the merits of plaintiffs' suit
on June 22, 2000. The Court found that the T ownship's
holiday display, as modified and memorialized in the 2000
resolution, did not violate the federal or New Jersey
Constitutions and entered judgment for the T ownship.

Plaintiffs appealed, contesting the District Court's
consideration of the January 2000 resolution and the
conclusion that the Township's display is constitutional. In
their written and oral arguments, plaintif fs made clear that
they seek relief only as to the 1999 display.

II.

On appeal, the Township again asserts that plaintiffs
lack standing to challenge the constitutionality of the
holiday display. We review the issue of standing de novo.
See Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000);
Stehney v. Perry, 101 F.3d 925, 929 (3d Cir. 1996).

The standing requirement implicit in Article III "is not
merely a troublesome hurdle to be overcome if possible so
as to reach the `merits' of a lawsuit," but an integral part of
the governmental charter established by the Constitution.
Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 476
(1982). If plaintiffs do not possess Article III standing, both

                                4
the District Court and this Court lack subject matter
jurisdiction to address the merits of plaintif fs' case. See id.
at 475-76; Warth v. Seldin, 442 U.S. 490, 498 (1975);
Morris v. Horn, 187 F.3d 333, 344 (3d Cir. 1999).

Plaintiffs bear the burden of proving standing. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Plaintiffs
must carry that burden "in the same way as any other
matter on which the plaintiff bears the bur den of proof, i.e.,
with the manner and degree of evidence r equired at
successive stages of the litigation." Lujan , 504 U.S. at 561;
see also FOCUS v. Allegheny County Court of Common
Pleas, 75 F.3d 834, 838 (3d Cir. 1996). As this appeal
comes to us after full litigation on the merits, plaintiffs
must establish standing in the same manner as would be
required to prevail on the ultimate merits of their case. Cf.
Gonzales v. North Township of Lake County, 4 F.3d 1412,
1415 (7th Cir. 1993) ("At the summary judgment stage, the
plaintiff must produce evidence [of standing] in the form of
Fed. R. Civ. P. 56(e) affidavits or documents . . . .").

The ACLU for its part rests its standing on the interests
of its members, the Millers, rather than on an independent
injury to the organization. As a result, the ACLU's ability to
sue is strictly dependent on that of the Millers. See Valley
Forge, 454 U.S. at 476 n.14; Fr eedom from Religion Found.,
Inc. v. Zielke, 845 F.2d 1463, 1469 (7th Cir. 1988);
American Civil Liberties Union v. City of St. Charles, 794
F.2d 265, 267 (7th Cir. 1986). The Millers claim standing
based on their status as municipal taxpayers or on non-
economic injuries resulting from the display. As we explain
below, the Millers failed to establish standing in either
capacity.

A.

The Supreme Court recognized in Dor emus v. Board of
Education of Hawthorne, 342 U.S. 429, 434 (1952), that a
municipal taxpayer may possess standing to litigate"a
good-faith pocketbook action." See also Doe v. Beaumont
Indep. Sch. Dist., 173 F.3d 274, 282 (5th Cir. 1999) ("[T]o
establish . . . municipal taxpayer standing . . . a plaintiff
must show only that (1) he pays taxes to the r elevant

                               5
entity, and (2) tax revenues are expended on the disputed
practice."); Clay v. Fort Wayne Community Sch., 76 F.3d
873, 879 (7th Cir. 1996) (acknowledging the good-faith
pocketbook requirement adopted by Dor emus for municipal
taxpayer standing); United States v. New Y ork, 972 F.2d
464, 470 (2d Cir. 1992) ("[M]unicipal taxpayers have
standing to challenge allegedly unlawful municipal
expenditures.") (collecting cases); Cammack v. Waihee, 932
F.2d 765, 770 (9th Cir. 1991) ("[T]he Doremus requirement
of a pocketbook injury applies to municipal taxpayer
standing . . . .") (collecting cases); District of Columbia
Common Cause v. District of Columbia, 858 F .2d 1, 4 (D.C.
Cir. 1988) (same).1

The plaintiffs in Doremus wer e state and municipal
taxpayers who challenged a state law mandating Bible
reading in public schools. Doremus , 342 U.S. at 430-31,
433. The Supreme Court found that the plaintif fs failed to
establish a direct monetary injury that would confer
standing to raise such a challenge, as they did not allege
that the 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 the school." Id.
at 433. Likewise, the plaintiffs failed to pr ovide any
"information . . . as to what kind of taxes" they paid or to
aver "that the Bible reading increase[d] any tax they [did]
pay or that as taxpayers they are, will, or possibly can be
out of pocket because of " the activity. Id. In short, the
plaintiffs failed to establish more than a potential de
minimis drain on tax revenues due to the challenged
reading. See id. at 431-32; see also Doe v. Madison Sch.
Dist. No. 321, 177 F.3d 789, 794 (9th Cir . 1999) (en banc)
(noting that "the school's expenditures for teachers'
salaries, equipment, building maintenance, and the like
were insufficient to confer taxpayer standing[in Doremus]
_________________________________________________________________

1. The standing requirements for federal taxpayers are more stringent
than those for municipal taxpayers. See Massachusetts v. Mellon, 262
U.S. 447, 486-87 (1923); Flast v. Cohen, 392 U.S. 83, 102-03 (1968);
Beaumont Indep. Sch. Dist., 173 F.3d at 282; Board of Educ. of Mt. Sinai
Sch. Dist. v. New York State Teachers Retirement Sys., 60 F.3d 106, 110
(2d Cir. 1995); Hawley v. City of Cleveland, 773 F.2d 736, 741-42 (6th
Cir. 1985); District of Columbia Common Cause, 858 F.2d at 3-4, 6-7.

                               6
despite their indirect support of the Bible r eading"). As a
result, the plaintiffs lacked standing to sue.

The same result has obtained in cases in other courts of
appeals. In Doe v. Duncanville Independent School District,
for example, the plaintiffs failed to show that the defendant
school district spent any money on the distribution of
Bibles by the Gideon Society in public school. Doe v.
Duncanville Indep. Sch. Dist., 70 F.3d 402, 408 (5th Cir.
1995). The Gideons supplied the Bibles and placed them on
a table in the school foyer. Id."[N]o school district employee
handle[d] the Bibles," and "[t]her e [was] no evidence that
the school district bought the table especially for the Bible
distribution or that the table [had] been set aside for [that]
sole purpose." Id. Recognizing that "[i]n order to establish
. . . municipal taxpayer standing . . . , a plaintif f must not
only show that he pays taxes to the relevant entity, he must
also show that tax revenues are expended on the disputed
practice," the Fifth Circuit found that plaintiffs lacked
standing to challenge the Bible distribution. Id. at 408-09.

The Seventh Circuit reached the same conclusion in
Freedom From Religion Foundation, Inc. v. Zielke, 845 F.2d
at 1466, in which plaintiffs sought to enjoin the display of
a monument of the Ten Commandments in a park owned
and maintained by the defendant city. While the city had
spent money in 1899 to acquire the property for the park,
the city had not spent any funds on maintaining the
donated monument. Id. at 1465-66, 1470. The Seventh
Circuit noted that "[a] plaintif f 's status as a municipal
taxpayer is irrelevant for standing purposes if no tax money
is spent on the allegedly unconstitutional activity" and
concluded that plaintiffs lacked standing to sue. Id. at
1470; see also Clay, 76 F.3d at 879 ("Municipal taxpayer
status does not confer standing absent some allegation by
the plaintiffs of an illegal use of tax r evenues."); Gonzales,
4 F.3d at 1416 ("Without evidence of expenditure of tax
revenues [on a donated, maintenance-fr ee crucifix in a
public park], the plaintiffs cannot claim standing" as
taxpayers.); City of St. Charles, 794 F .2d at 267-68
(Plaintiffs' taxpayer status was irrelevant where there was

                               7
no allegation "that any part of the expense of the [disputed
display of a lighted] cross [was] paid for out of tax revenues.").2

In this case, plaintiffs have provided uncontradicted
testimony that they pay property taxes to the T ownship.
Affidavit of Eleanor Miller P 1 ("Mrs. Miller") (App. at A17);
Affidavit of Randy Miller P 1 ("Mr . Miller I") (App. at A20).
However, as in the cases above, plaintif fs have failed to
establish that the Township has spent any money, much
less money obtained through property taxes, on the
religious elements of the 1999 display.

Plaintiffs did allege, "[o]n infor mation and belief," that
"the [1998] Nativity display was er ected and maintained
with public funds including tax revenues collected by the
Township." Complaint P 35 (App. at A6). However, the
Township denied this allegation and plaintif fs presented no
evidence on the issue. Answer P 35 (App. at A). Moreover,
the record establishes that both the Nativity display and
the menorah were donated to the Township. Complaint P 34
(App. at A6); Answer P 34 (App. at A38); Declaration of
Joseph Verruni P 5 (App. at A59). While the Township thus
owns the Nativity display, and presumably the menorah,
and the overall display is set up with defendant's support,
direction and/or approval, the Township denies that it
"maintains" the display. Complaint PP 34, 41 (App. at A6);
Answer PP 34, 41 (App. at A38-A39). Plaintif fs have thus
failed to establish an expenditure on the challenged
elements of the display.

Even if we were to assume that the holiday display was
erected by paid Township employees, ther e is no indication
that the portion of such expenditure attributable to the
challenged elements of the display would have been more
_________________________________________________________________

2. For cases in which other circuits have r ecognized that municipal
taxpayers lack standing to sue where ther e is no evidence of
expenditure, see Madison School District No. 321, 177 F.3d at 794, 797
(Even though tax money was allegedly spent on the"ordinary costs of
graduation," such as printing programs, plaintiff lacked standing to
challenge graduation prayer where she conceded that no tax funds were
"spent solely on" that activity.), and District of Columbia Common Cause,
858 F.2d at 4 ("[M]unicipal taxpayers do not have standing when no tax
moneys are spent.")

                               8
than the de minimis expenditure that was involved in the
Bible reading in Doremus. See Doremus v. Board of Educ. of
Hawthorne, 71 A.2d 732, 733 (N.J. Super . Ct. Law Div.
1950) (under statute in question Bible reading was to be
performed by teacher or principal); Madison Sch. Dist. No.
321, 177 F.3d at 794. Similarly, we cannot simply assume
that the Township expends more than a de minimis
amount in lighting the religious elements of the display. Cf.
City of St. Charles, 794 F.2d at 267-68 (Lighting for
challenged cross was "put up by the city's volunteer
firemen, on their own time, and the minuscule cost of the
electricity required to keep the lights lit [was] defrayed by
voluntary contributions from city residents.").

As a result, we cannot find that plaintif fs have carried
their burden of proving an expenditur e of revenues to
which they contribute that would make their suit"a good-
faith pocketbook action." Doremus, 342 U.S. at 434; see
also Fuller v. Volk, 351 F.2d 323, 327 (3d Cir. 1965)
(requiring municipal taxpayers to show "a good-faith
pocketbook action"). Consequently, plaintif fs cannot invoke
federal jurisdiction as taxpayers.

B.

Nor have plaintiffs established standing based on non-
economic injuries suffered as a r esult of the challenged
1999 display. The Millers provided substantial evidence
regarding their contact with and r eaction to the 1998
display. The Millers testified that they fr equently visit the
municipal complex to fulfill personal, professional, and
political responsibilities. Mrs. Miller PP 3-9 (App. at A17-
A18); Mr. Miller I PP 3-14 (App. at A20-A21). Both saw the
1998 holiday display and found it objectionable. Mrs. Miller
PP 9-10 (App. at A18); Mr. Miller IPP 14-15 (App. at A22).
Both were troubled by the display's placement near the
entrance of the municipal building, the seat of the
Township's government. Mrs. Miller P 10 (App. at A18); Mr.
Miller I P 15 (App. at A22).

Mr. Miller believed the 1998 display to be a
demonstration by the Township "that it . . . has a special,
close relationship with Christian religious institutions." Mr.

                               9
Miller I P 16 (App. at A22). He felt that"governmental
entities . . . have no business erecting r eligious displays, let
alone a religious display of only one r eligion in a place
which is symbolic of the Township's power ." Mr. Miller I
P 17 (App. at A22). He resented "the T ownship appearing to
. . . act as a representative of the Catholic religion [of which
he is an adherent] in erecting the Nativity display." Mr.
Miller I P 18-19 (App. at A22). To him,"the display [was] an
affront to and rejection of [his] political and philosophical
beliefs and an intrusion into the area of [his] religion." Mr.
Miller I P 20 (App. at A22).

Similarly, Mrs. Miller interpreted the 1998 display as an
endorsement of the Christian religion. Mrs. Miller P 10
(App. at A18). As one who believes in the pr ohibition
against establishment of religion, she found the display to
be "an arrogant announcement that Wall Township is a
Christian municipality--not one which is open to diversity
and includes all of its residents on an equal basis." Mrs.
Miller PP 11-12 (App. at A18-A19). Mor eover, as one who
does not have a "religious background" but who is "not
anti-religious," she "believe[s] that religion plays an
important part in society and that our society should be
tolerant of diverse religious philosophies and practices as
well as those who choose not to practice any r eligion at all."
Mrs. Miller P 13 (App. at A19). She viewed"the Township's
Nativity display as both a rejection of [her] political views
and of [her] beliefs respecting the necessity for religious
diversity and inclusivity." Mrs. Miller P 14 (App. at A19). In
conclusion, the display made her "feel less welcome in the
community, less accepted and tainted in some way." Mrs.
Miller P 15 (App. at A19).

Before the Millers' suit was expanded to include the 1999
display, the District Court found that this evidence
sufficiently established the Millers' standing to raise their
constitutional claims. The question is a close one.

In Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., the plaintiffs,
"Americans United for Separation of Church and State, Inc.
. . . and four of its employees, learned of the conveyance [of
federally-owned land in Pennsylvania to Valley Forge
Christian College] through a news release." 454 U.S. at

                               10
469. The standing of the organization was dependent on
that of the employee-plaintiffs, see id. at 476 n.14, and the
Supreme Court found that these named plaintif fs, who lived
in Virginia and Maryland, see id. at 487, lacked standing.
The Court wrote:

       Although respondents claim that the Constitution has
       been violated, they claim nothing else. They fail to
       identify any personal injury suffered by them as a
       consequence of the alleged constitutional err or, 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 disagr eement
       is phrased in constitutional terms.

454 U.S. at 485-86 (emphasis added).

The Court added:

       We simply cannot see that respondents have alleged an
       injury of any kind, economic or otherwise, sufficient to
       confer standing. Respondents complain of a transfer of
       property located in Chester County, Pa. The named
       plaintiffs reside in Maryland and V irginia; their
       organizational headquarters are located in Washington,
       D.C. They learned of the transfer through a news
       release. Their claim that the Government has violated
       the Establishment Clause does not provide a special
       license to roam the country in search of governmental
       wrongdoing and to reveal their discoveries in federal
       court. The federal courts were simply not constituted
       as ombudsmen of the general welfare.

454 U.S. at 486-87 (footnotes omitted).

It can be argued that the Millers' alleged injuries from
observance of the 1998 display--Mr. Miller's resentment,
Mr. Miller I P 19 (App. at A22), and Mrs. Miller's feelings of
being "less welcome in the community, less accepted and
tainted in some way," Mrs. Miller P 15 (App. at A19)--are
tantamount to the "psychological consequence[s] . . .
produced by observation of conduct with which one
disagrees," Valley Forge , 454 U.S. at 485, and that these
psychological consequences are insufficient to establish
standing.

                               11
Decisions of other circuits, however, suggest that the
Millers' evidence might be sufficient to establish standing
with respect to the 1998 display because, unlike the named
plaintiffs in Valley Forge , the Millers had personal contact
with the display. The Tenth Circuit, for example, found
standing to challenge the religious element of a city logo
displayed in the city hall, on city vehicles, and on city
stationary where the plaintiff had "direct, personal contact"
with the logo on a daily basis and was offended and
intimidated by it. Foremaster v. City of St. George, 882 F.2d
1485, 1490-91 (10th Cir. 1989). Similarly, the Eleventh
Circuit found that plaintiffs who felt like second class
citizens because the city seal contained the wor d
"Christianity" had standing to sue wher e they received
correspondence and documents bearing the seal. Saladin v.
City of Milledgeville, 812 F.2d 687, 692-93 (11th Cir. 1987).
Plaintiffs' "direct contact with the offensive conduct" served
to distinguish the Eleventh Circuit plaintif fs from the
plaintiffs in Valley Forge . Id. at 692.

We need not decide whether the Millers' evidence would
be sufficient to confer standing to challenge the 1998
display, however, because plaintiffs do not press their
challenge to that display on appeal. Plaintif fs seek relief
only as to the modified display exhibited in 1999.

We do not believe that the Millers' pr offered evidence
would establish standing to challenge the 1999 display
under the law of any circuit. The recor d contains no
evidence that Mrs. Miller even saw the 1999 display. Cf.
Valley Forge, 454 U.S. at 486-87 (plaintiffs lived far from
the challenged conveyance and learned of it through the
media). While Mr. Miller testified that he went to the
municipal complex and observed the Township's 1999
display, it is unclear whether he did so in or der to describe
the display for this litigation or whether, for example, he
observed the display in the course of satisfying a civic
obligation at the municipal building. Mr. Miller II PP 1-2
(App. at A43); cf. Suhre v. Haywood County, 131 F.3d 1083,
1090 (4th Cir. 1997) (recognizing standing of plaintiff who,
"as a participant in local government," had direct contact
with a Ten Commandments display in county courtroom).
Moreover, neither Mr. Miller nor Mrs. Miller provided

                               12
testimony regarding their reaction to the 1999 display,
which was significantly different fr om the display in 1998.

While we assume that the Millers disagreed with the
1999 display for some reason, we cannot assume that the
Millers suffered the type of injury that would confer
standing. As noted, "the party invoking federal jurisdiction
bears the burden of establishing [standing] . . . . in the
same way as any other matter on which the plaintif f bears
the burden of proof, i.e., with the manner and degree of
evidence required at successive stages of the litigation."
Lujan, 504 U.S. at 561. Mere assumption would not satisfy
the plaintiffs' burden to prove an element of their cause of
action at this stage of the litigation and it cannot satisfy
their burden to prove standing. Accor dingly, we find that
plaintiffs have failed to establish standing to challenge the
Township's 1999 display. The order of the District Court is
therefore vacated, and the case is r emanded for the District
Court to dismiss for lack of jurisdiction.

While the lack of standing prevents plaintif fs from
obtaining a ruling from a federal court r egarding the
constitutionality of the Township's past display--which
apparently will not be exhibited again--it does not prevent
plaintiffs from attempting to challenge any future display
that plaintiffs believe violates constitutional principles.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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