Case: 11-13457 Date Filed: 08/15/2012 Page: 1 of 33
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 11-13457 ________________________
D.C. Docket No. 1:07-cv-00018-MP-GRJ
AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC.,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
DIXIE COUNTY FLORIDA,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant,
______________________
FOUNDATION FOR MORAL LAW, WALLBUILDERS, INC., AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE,
llllllllllllllllllllllllllllllllllllllll Amici Curiae. _______________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(August 15, 2012) Case: 11-13457 Date Filed: 08/15/2012 Page: 2 of 33
Before WILSON, KRAVITCH and EDMONDSON, Circuit Judges.
WILSON, Circuit Judge:
The dispute underlying this appeal concerns the constitutionality of a large
religious statue that is located directly outside the courthouse in Dixie County,
Florida (the “County”). The American Civil Liberties Union of Florida, Inc.
(“ACLU”) brought suit against the County, arguing that such a monument violates
the First Amendment’s Establishment Clause. The County moved for summary
judgment on the ground that John Doe, the ACLU member through whom the
ACLU claimed standing, could not demonstrate an actual injury that he had
suffered as a result of the display. The district court denied the motion. The
ACLU later moved for summary judgment, which the district court granted. We
find that due to a material conflict in the evidence, an evidentiary hearing on the
issue of standing was merited. We therefore remand so that such a hearing can be
conducted.
I.
A.
In Dixie County, Florida, a five-foot tall statue of the Ten Commandments
flanks one entrance to the County courthouse. The statue is centrally situated on
top of the courthouse steps and is clearly visible from the road. It was donated and
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erected by a private citizen in 2006 with the approval of the County Board of
Commissioners.
John Doe resides primarily in North Carolina. He has never lived in the
County, nor does he have any ties to property there, but Doe and his wife own a
winter home in nearby Levy County. Their winter home is not currently for sale.
Doe developed an interest in possibly purchasing land in the County because the
County’s zoning rules allow residents to live in a recreational vehicle (“RV”) on
their property. He and his wife had been contemplating moving from their Levy
County property to a new location that permitted such a practice. In 2004, Doe
made an offer on a parcel of land in the County. That offer was declined, but Doe
continued his search for property. On January 24, 2007, Doe made a trip to the
County assessor’s office to investigate the real estate records for a different
property in which he had an interest. The assessor’s office, like all of the County’s
essential local government offices, is located in the courthouse. Although Doe
had been in the vicinity of the courthouse on previous occasions, this visit marked
his first time entering the building.
While at the courthouse, Doe caught sight of the Ten Commandments
monument. He had not been aware of the statue’s existence prior to January 24,
2007, and the experience of seeing the statue was a negative one for Doe. Doe
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took offense at the display and felt shocked. However, after taking time to
photograph the statue using his cell phone, Doe was able to resume his inspection
of the property records. Ultimately, Doe was able to obtain from the assessor’s
office all of the information that he had been seeking regarding the parcel.
However, he did not end up purchasing the property. In fact, to this date Doe has
not purchased any land in the County. A question relevant to this appeal is: why
not?
B.
The ACLU filed this suit against the County in February 2007, and in
September 2007, Doe was deposed. During his deposition, Doe was questioned
about the property that he had been investigating during his January 24, 2007 visit
to the County courthouse:
Q: Did you ultimately end up purchasing th[at] property? A: No. Q: Why not? A: Because of the Dixie County government probably. The display of the monuments, the monument. Q: Okay. Explain that to me a little bit more. I’m not sure I understand. A: I was somewhat offended by the monument being there. Q: Was there any other reason that you decided not to purchase this property in Dixie County? A: I found other things I was offended by.
On October 10, 2007, the County moved for summary judgment, arguing
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that Doe lacked standing, and thus the ACLU lacked standing. The ACLU
replied, attaching to its response an affidavit prepared by Doe. Doe stated in the
affidavit that when he saw the monument at the courthouse, he was “deeply
disturbed that the county openly embraced religious doctrine.” Although
disturbed by the monument, Doe continued his investigation of the property and
found that there were no restrictions against living in an RV on the land. Doe
stated: “At this point I became very disheartened because were it not for the
county’s religious display at the courthouse, the only thing left to negotiate was
the price [of the property].” He also claimed in the affidavit that, “[w]ere it not for
the presence of the Monument on the Dixie County Courthouse steps, we would
have continued to look for . . . property in Dixie County . . . and we would do so
again immediately if the Monument were removed.” On August 8, 2008, the
district court denied the County’s motion. The court found that Doe had suffered
an injury requisite for standing because “but for the display, [he would] be looking
for or already have purchased property in the County.”
In October 2009, the ACLU moved for summary judgment on the merits.
The district court granted the motion, and the County appeals.
II.
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We review de novo a district court’s ruling on a motion for summary
judgment, including any determination made regarding a plaintiff’s standing. See
Glassroth v. Moore, 335 F.3d 1282, 1291–92 (11th Cir. 2003). Standing is a
jurisdictional inquiry, and a “party invoking federal jurisdiction bears the burden”
of establishing that he has standing to sue. Lujan v. Defenders of Wildlife, 504
U.S. 555, 561, 112 S. Ct. 2130, 2136 (1992). Because standing is not merely a
pleading requirement, “each element [of standing] must be supported in the same
way as any other matter on which the plaintiff bears the burden of proof, i.e., with
the manner and degree of evidence required at the successive stages of the
litigation.” Id. When considering a “factual challenge” to standing in a motion for
summary judgment, “[a]s with any summary judgment determination, we look
beyond the complaint, to the ‘depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any.’” Bochese v. Town of
Ponce Inlet, 405 F.3d 964, 976 (11th Cir. 2005) (quoting Fed. R. Civ. P. 56(c)).
We may only grant summary judgment if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
mater of law.” Fed. R. Civ. P. 56(a).
The existence of standing is crucial because we as a federal court are
constitutionally bound to only entertain arguments that we have been given the
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authority to decide:
The judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts. The power to declare the rights of individuals and to measure the authority of governments . . . “is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy.” Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345(1892). Otherwise, the power “is not judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States.” United States v. Ferreira, 13 How. 40, 48 (1852). As an incident to the elaboration of this bedrock requirement, this Court has always required that a litigant have “standing” to challenge the action sought to be adjudicated in the lawsuit.
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State,
Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 758 (1982).
An organization has standing to bring an action on its members’ behalf if
“(a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 343, 97 S. Ct. 2434, 2441 (1977). In this case, the element of the
ACLU’s standing that is in question is whether its member Doe would have
standing in his own right to bring this suit. In order for Doe to satisfy that
requirement, he must fulfill three basic elements of the “irreducible constitutional
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minimum” for standing. Lujan, 504 U.S. at 560, 112 S. Ct. at 2136. First, Doe
must “have suffered an injury in fact—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical.” Id. (citations and internal quotation marks omitted).
“Second, there must be a causal connection between the injury and the conduct
complained of.” Id. Third, it must be likely, rather than merely speculative, that a
favorable decision by the court will actually remedy Doe’s injury. Id.
The issue of standing was raised by the County in its motion for summary
judgment.1 At the time that motion was filed, Doe’s affidavit and deposition were
in conflict regarding a fact essential to the standing determination. The deposition
asserted that there were “other things” that offended Doe at the courthouse and
contributed to his disinclination to pursue a property search. However, the
1 When ruling on the County’s summary judgment motion, the district court stated, “[f]or the purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” (emphasis added). The district court then proceeded to cite heavily to Doe’s affidavit without mentioning any testimony from his deposition pre-dating that affidavit. This was in error. The standard for evaluating a motion for summary judgment is different than that for a motion to dismiss, and summary judgment requires a district court to look at all the evidence—“beyond the complaint, to the depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Bochese, 405 F.3d at 976 (quotation marks omitted) (evaluating a summary judgment motion based on lack of standing). However, our review is de novo, so we need not focus on the district court’s mistake; we are free to make our own review.
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affidavit avers that the monument alone was the but-for cause. Although the fact
that Doe’s later-filed affidavit shores up his assertion of standing engenders
suspicion as to its veracity, we are required to rely on the affidavit at the summary
judgment stage of proceedings. Bischoff v. Osceola Cnty., Fla., 222 F.3d 874, 878
(11th Cir. 2000) (stating that when a court evaluates a summary judgment motion
asserting a lack of standing, the facts set forth by the plaintiff will be “taken to be
true”). The affidavit—taken as true, see id.—raises a dispute as to whether Doe
might have actually been injured, so denial of the County’s motion asserting a lack
of standing was proper at that point in the proceedings. The error emerged when
the district court implicitly ratified its finding of standing—a finding resolved on a
summary judgment posture and based on the content of the affidavit alone—by
failing to address standing again prior to or during its final ruling in the case.
If an affidavit differs from the statements made in a deposition, “the two in
conjunction may disclose an issue of credibility.” Tippens v. Celotex Corp., 805
F.2d 949, 953 (11th Cir. 1986) (internal quotation marks omitted). Under such
circumstances, a district court is not free to credit one piece of evidence and ignore
the other; instead, it should hold an evidentiary hearing in order to make
credibility findings. Bischoff, 222 F.3d at 881. We find that such an issue of
credibility exists regarding Doe’s inconsistent testimony. Yet when the district
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court ruled on the ACLU’s motion, it made a final disposition of the case that
implicitly relied on crediting the affidavit and ignoring the deposition testimony
that “other things” may have deterred Doe from pursuing his property search.
Ignoring that deposition testimony was improper; the district court lacked the
power to make a credibility determination absent a prior evidentiary hearing.
C.
Standing is crucial. The Supreme Court has called it “perhaps the most
important of [the jurisdictional] doctrines.” Allen v. Wright, 468 U.S. 737, 750,
104 S. Ct. 3315, 3324 (1984).
Before rendering a decision . . . every federal court operates under an independent obligation to ensure it is presented with the kind of concrete controversy upon which its constitutional grant of authority is based; and this obligation on the court to examine its own jurisdiction continues at each stage of the proceedings.
Hallandale Prof’l Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756,
759 (11th Cir. 1991) (emphasis added). An essential part of standing is that the
plaintiff suffered an injury that is “concrete and particularized,” not “conjectural”
or “hypothetical,” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136, but the conflicts in
the evidence here prevent us from determining if Doe experienced such an injury.
Doe is not a resident of the County, nor does he have any legal or business
obligations that would require him to visit the County. His sole source of
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potential injury in this case springs from his interest in possibly buying land in the
County. Doe contends that the offensiveness of the statue has imposed a burden
on him to avoid the County courthouse and to abandon his property search in the
County; he alleges that this burden is tantamount to an injury.
The ACLU points to Glassroth, 335 F.3d 1282, and ACLU v. Rabun Cnty.
Chamber of Commerce, Inc., 698 F.2d 1098 (11th Cir. 1983) (per curiam), to
support its proposition that Doe has suffered an injury. In Glassroth, the plaintiffs
were lawyers who were offended by a monument in their state’s judicial building
and were subjected to viewing it in the course of their professional duties. 335
F.3d at 1288. The plaintiffs began avoiding the building which they had
previously frequented. Id. We found that the plaintiffs had “altered their
behavior as a result of the monument” and that a favorable decision would likely
redress their injuries. Id. at 1292. In Rabun, the plaintiffs were Georgia residents
who regularly camped and made use of public parks “maintained by the State of
Georgia.” 698 F.2d at 1107. When a cross was erected on Georgia state park
land, the campers were forced to discontinue their use of this state-supplied
amenity. Id. We found this injury sufficient to confer standing. Id. at 1108.
Those cases are factually distinguishable from the present case. Doe
indicated in his deposition that other factors, in addition to the monument,
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deterred him from purchasing land in the County.2 Therefore, it is uncertain
whether foregoing his real estate search constitutes an “injury” of the type that
satisfies standing requirements and whether the monument was the real cause of
that alleged “injury.” The existence of alternative or additional reasons for Doe’s
abandonment of his search for property in the County could render Doe’s injury
speculative—more “hypothetical” than “actual.” See Lujan, 504 U.S. at 560, 112
S. Ct. at 2136. Additionally, if other factors caused Doe’s injury, that would
undermine the claim that his injury is redressable by removal of the monument.
III.
Doe’s affidavit—which is suspect, given that it seems designed to
strengthen Doe’s standing claim—is inconsistent with his deposition. Because
this conflicting evidence must be resolved in order to determine whether Doe has
standing, we vacate the district court’s grant of summary judgment on the merits
and remand to the district court to hold an evidentiary hearing and determine what
testimony to credit. See Bischoff, 222 F.3d at 881 (“[I]n a case where the evidence
relating to standing is squarely in contradiction as to central matters and requires
credibility findings, a district court cannot make those findings simply by relying
2 Even absent consideration of Doe’s deposition testimony, it is not clear that these cases are applicable to the facts of Doe’s case.
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on the paper record but must conduct a hearing at which it may evaluate the live
testimony of the witnesses.”) (emphasis omitted).
VACATED AND REMANDED.
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EDMONDSON, Circuit Judge, concurring in part and dissenting in part.
This appeal is about standing and about Article III “Cases” and
“Controversies.”
I agree that the grant of summary judgment on the merits must be vacated. I
dissent about a remand for an evidentiary hearing or for any other proceeding,
except dismissal. I agree with much of what Judge Wilson has written; but I think
Plaintiff -- as a matter of law -- has already failed to show standing and is
unentitled, in this case, to another chance or to more proceedings in a federal
court.
Plaintiff American Civil Liberties Union of Florida, Inc. (the “ACLU”)
challenges a stone monument to the Ten Commandments that stands on the front
steps of the courthouse in Dixie County, Florida (the “County”); Plaintiff says the
monument violates the Establishment Clause of the First Amendment. Plaintiff
claims standing based on the standing of one of its members, John Doe. John Doe
does not reside in Dixie County.
I believe Plaintiff lacks constitutional standing to bring this civil action in
federal court; I would vacate the judgment for Plaintiff and remand to the district
court for dismissal now based on lack of jurisdiction.
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Before setting out the facts that are material to me in this case, I discuss
what evidence we may properly consider to be in the record on appeal. In this
civil action, Defendant’s lawyers took Doe’s deposition in September 2007 and,
about one month later, moved for summary judgment based on Plaintiff’s lack of
standing. Parts of, but not all of, the transcript of Doe’s deposition were before
the district court when that court decided this case.
Our written instructions to parties who file appeals in this Court require that
“[w]hen any portion of a witness’ testimony (deposition or transcript) is cited in
the argument section of [the appellant’s] brief . . . , the entire deposition . . . must
be provided” to the Court. Defendant submitted the full Doe deposition transcript
to this Court to be part of the record on appeal. Plaintiff moved to strike the
transcript of Doe’s deposition, although it is Doe’s supposed harm that is the sole
basis (if any) for Plaintiff’s standing. No one has contended that the pertinent
transcript is not authentic. The Court denied the motion to strike.
As Article III judges, we owe certain duties directly to the Constitution. We
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have “an independent obligation to examine [our] own jurisdiction, and standing
‘is perhaps the most important of the jurisdictional doctrines.’” FW/PBS, Inc. v.
City of Dallas, 110 S. Ct. 596, 607 (1990) (citation omitted).
I would have us satisfy this independent obligation by considering now the
record, including Doe’s full deposition. For background, see Ouachita Watch
League v. Jacobs, 463 F.3d 1163, 1170-71 (11th Cir. 2006) (reversing the district
court’s summary judgment standing decision because declarations, not submitted
to the district court, but submitted on appeal, indicated that the plaintiff-
association’s members had been injured by environmental damage to forests that
they regularly used); Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1554-55
(11th Cir. 1989) (using affidavits, not seen by the district court, but submitted on
appeal by the plaintiffs, to affirm a decision for the defendants -- in a removal case
-- that diversity jurisdiction existed). I would accept the full transcript of Doe’s
deposition because standing is an important jurisdictional doctrine that we must
examine before deciding a case on the merits, because standing is dispositive in
this case, and because most of the pages of Doe’s deposition that are pertinent
actually were filed in the district court. Where standing is lacking, the litigation
should be stopped as early as possible: a matter of saving scarce resources as well
as respect for the most basic Constitutional law.
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After Doe’s deposition was taken, a written declaration, which Doe signed,
was prepared for Doe. Plaintiff used the declaration instead of the Doe deposition
to respond to the County’s motion for summary judgment on the issue of standing.
Some of the basic facts from the declaration are the same as some of the basic
facts in Doe’s deposition testimony. But, the declaration seems to me to be largely
inconsistent with the fair import of what Doe said when deposed under oath. I
find Doe’s deposition to be a more trustworthy representation of the facts. See,
e.g., Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995) (when
discounting a post-deposition affidavit “designed, it appears, to retract or explain
away concessions that [a plaintiff] had made in his deposition,” remarking that
“[a]lmost all affidavits submitted in litigation are drafted by the lawyers rather
than by the affiants.”). I submit that a reasonable person who reads both Doe’s
deposition transcript and the declaration can see that the two documents are not
nearly identical in substance.
Today’s Court remands the case to the district court for an evidentiary
hearing. I think this step is unnecessary and, therefore, incorrect. This Court can
and should largely take our facts from what Doe said under oath at his deposition.
Doe gave “clear answers to unambiguous questions”; so I would not credit the
later declaration when it “contradicts, without explanation, previously given clear
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testimony.” Van T. Junkins & Assocs. v. U.S. Indus., Inc., 736 F.2d 656, 657
(11th Cir. 1984).1
Judge Wilson sets out many of the facts.
In 2006, a County resident and local business owner asked for and received
permission from the County Board of Commissioners to display a monument to
the Ten Commandments on the steps of the County courthouse. The County
1 “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins, 736 F.2d at 657. This idea is associated with judicial estoppel (not just simple credibility questions about a witness). This idea has to do, to a significant degree, with guarding the integrity of the judicial process; with demanding respect for the oath to tell the truth; and with defining how a party is to deal properly with the Court from whom the party is seeking relief. No decision of this Court has overruled Van T. Junkins: even cases such as Tippens v. Celotex Corp., 805 F.2d 949, 954-55 (11th Cir. 1986) and Lane v. Celotex Corp., 782 F.2d 1526, 1530- 31 (11th Cir. 1986), which stressed the -- now erroneous -- view that summary judgment is highly disfavored generally. We ought not allow a party to create an issue of fact and to defeat a summary judgment motion by, without explanation, swearing to an affidavit that is inconsistent with that party’s clear deposition testimony. I would not allow Plaintiff to create an issue of fact by submitting an affidavit that, without explanation, substitutes a conclusory statement -- Doe would look for property immediately if the monument were removed -- for earlier clear deposition testimony to the contrary: for example, Doe could (might) intend to look for property if he sold his Trenton property. As today’s Court observes, at summary judgment a district court may not disregard two of plaintiffs’ internally consistent affidavits when contradicted by affidavits of the defendant’s witnesses on disputed facts material to standing. Bischoff v. Osceola Cnty., Fla., 222 F.3d 874, 881 (11th Cir. 2000). But, in this case, Doe -- a most interested party -- conclusorily contradicted himself. The discrepancies go to the heart of Plaintiff’s theory of standing; I am not talking about faulty memory about mere factual details.
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courthouse is the center of government authority for the County and houses the
offices of the Sheriff, the State Attorney, the Tax Assessor, the Board of County
Commissioners, the Supervisor of Elections, the Clerk of Court, and the Register
of Deeds.
The monument, which is taller than five feet and weighs six tons, has two
parts: the tablets and the base. The full text of the Ten Commandments is
inscribed on the two tablets. The tablets rest on a base on which large letters say:
“LOVE GOD AND KEEP HIS COMMANDMENTS.” The Ten Commandments
monument sits alone at the top of the courthouse steps, facing the street.
The monument was installed in November 2006; and fewer than three
months later, Plaintiff sued in federal court for a declaratory judgment, injunctive
relief, and damages. Plaintiff claims that unwelcome contact with the monument
harmed Doe, an ACLU member on whose behalf Plaintiff sues.
Doe lives in North Carolina -- the state he identifies as his primary
residence -- and has lived there for twenty years. More recently he has maintained
a “winter home” in Florida in addition to his primary residence in North Carolina.
For about five months out of the year, Doe lives in that winter home in Trenton,
Florida, which is in a county adjacent to Dixie County. Doe has never lived in or
owned property in Dixie County.
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In 2004, Doe became interested in buying real property in Dixie County.
Doe wanted to buy land in Dixie County because he thought it to be one of a few
counties in Florida that allow residents to live in recreational vehicles (“RVs”) on
their land; he does not currently live in an RV on his Trenton property. Doe made
an offer to buy a piece of land in Dixie County in 2004, but that offer was rejected.
In his deposition, Doe testified about some handwritten notes listing
“properties that [he] was going to go look at to consider purchasing” around
December 2006. Doe did not know whether all of the properties, which he found
after a “one-time property search,”2 were in Dixie County. In January 2007, Doe
visited one of the Dixie County properties mentioned in his notes; and he spoke to
the real estate agent who was responsible for the listing. After visiting the
property for a second time, Doe went to the County courthouse because he “had
found a piece of property that [he] was considering purchasing and [he] wanted to
review the records to find out more about the property.”
The January 2007 visit to the courthouse was the first and only time Doe
saw the monument on the courthouse steps. After seeing the monument, Doe
continued into the courthouse and completed his business there. Doe has actually
2 We do not know what kind of “property search” generated Doe’s list of properties: internet, classified ads, and so on.
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visited the Dixie County courthouse only this one time.
While at the courthouse, Doe found the information he wanted about the
Dixie County property he was considering. But Doe did not buy the property.
During his deposition, Defendant’s lawyer asked Doe why he did not purchase
that property. Doe answered this way: “Because of the Dixie County government
probably. The display of the monuments, the monument.” Doe explained that he
“was somewhat offended by the monument being there,” and that he “found other
things [he] was offended by.” Among the other things that offended him were (1)
a cartoon in the assessor’s office depicting an American soldier telling a French
official “Well, you didn’t make me show a Visa when I landed in Normandy”; (2)
a writing in the assessor’s office that said something like “the only two who gave
blood for you or gave their souls for you were Jesus and the veterans”; and (3) a
website that included the words “Patriot Properties” and “Dixie” in its web
address, which an employee in the assessor’s office recommended Doe visit if he
had more questions.
Doe said that some “unwritten” things also caused him not to purchase
property in the County. Doe “felt like an outsider” at the courthouse. Although
the employees answered his questions and assisted him with what he needed, Doe
said that “the people there . . . seemed to be a bit cold.” “[W]hen I asked
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questions, they [the employees] were very short and abrupt.”
Doe had seen the Dixie County courthouse “ten times probably” before
January 2007. Before his first visit to the courthouse, Doe had ridden his bicycle
near the courthouse; and he had visited an ice cream shop from which he thinks --
but is not certain -- he can see the courthouse.
Doe, at the time of his deposition, had not put his winter home in Trenton,
Florida, up for sale and had not decided whether to list the property with a real
estate agent. When asked where he “intend[s] to reside if [he] would sell the
property in Trenton,” Doe said that his “intentions were to buy a piece of property
in Dixie County, Florida, if I had sold the [Trenton] property. This was my, were
my previous intentions and they also can be my intentions again.” When asked
whether he was considering purchasing property in Dixie County, Doe said “Hard
to answer. Not at this very moment.”
Doe has not been physically present at the courthouse since he saw the
monument in January 2007. Doe has not needed “to use any of the services of the
Dixie County courthouse” since January 2007. He has no legal obligations to
fulfill at the courthouse and has no reason to go to the courthouse.
The district court denied the County’s motion for summary judgment based
on the standing issue. Later, the district court granted Plaintiff’s motion for
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summary judgment on the merits.
Article III of the United States Constitution gives the federal courts power
to act only when we are called upon to resolve actual cases or controversies. The
case or controversy requirement is a strong limitation on the power of the federal
courts. Our Constitution obligates us to “say what the law is” but only when we
are “assured” that we have “the power to do so.” Valley Forge Christian Coll. v.
Ams. United for Separation of Church & State, Inc., 102 S. Ct. 752, 760 n.13
(1982) (emphasis added); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
Most disputes are not to be resolved by the federal courts; the doctrine of standing
compels us first to identify those disputes that we rightly may resolve. See
Whitmore v. Arkansas, 110 S. Ct. 1717, 1722 (1990).
For standing, our Constitution requires that the person bringing a case to
federal court have a direct, personal, and certain stake in the outcome of the case
that will be litigated in federal court. The “irreducible constitutional minimum”
for standing includes three things: (1) an injury in fact; (2) a “causal connection”
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between the injury and the alleged constitutional violation; and (3) a substantial
likelihood that a favorable decision will redress the injury. Vt. Agency of Natural
Res. v. United States ex rel. Stevens, 120 S. Ct. 1858, 1861-62 (2000); Lujan v.
Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992). I think Plaintiff, as a matter
of law, has failed to meet this standard.
Plaintiff has shown no injury that is the result of Doe’s seeing -- and thus,
knowing about -- the monument and that is sufficient for standing. Plaintiff
argues that an injury is present in this case: Doe’s (as Plaintiff might put it)
assuming the burden of not “considering purchasing property” in the County.3 I
am unconvinced that Doe has been burdened by the monument. First, Dixie
County demands nothing from Doe. In addition, Doe has no reason and no legal
obligation to go to the pertinent courthouse; and Doe has no actual encounters
with the courthouse or with the monument at any point in his life as he now lives
it.
That a number of things at the courthouse -- instead of (or in addition to) his
objection to the monument -- could be keeping him from resuming considering
buying property in Dixie County tells us how abstract, remote, and conjectural
3 Plaintiff concedes that “Doe’s claim for relief is not based on his one-time January 2007 encounter with the display.”
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Doe’s asserted injury specifically from the monument is. The record in this case is
complete enough for us to decide -- as a matter of law -- the issue of standing. As
a matter of law, I say that the record (including Doe’s deposition) cannot assure
the federal courts that more than a mere possibility exists that Doe would seriously
even consider buying property in the County -- much less really buy property in or
reside in Dixie County -- if a federal court required the monument to be removed,
overriding the elected county officers’ own decisions to allow the monument.
The Supreme Court has explained what kind of injury a plaintiff must
establish to assure us of his constitutional standing. The injury must be “concrete
and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Lujan, 112 S. Ct. at 2136. I take the idea of a concrete injury seriously because it
is through that injury that we, as nonelected judges, gain the lawful and great
power to override elected governments. I conclude Doe has failed to show the
needed actual or imminent injury. His supposed desire to resume considering the
possibility of purchasing property in the County is far too vague and too
hypothetical to allow us even to consider a question that might cause us to
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override an elected local government.
Plaintiff argues that Doe’s injury is “the inability to carry out his legitimate
business at the Dixie County Courthouse in connection with his well-documented
intention and effort to purchase property in Dixie County and move there.”
Plaintiff says that the harm Doe suffers is comparable to the harm the plaintiffs in
some of our other cases suffered and that Doe has assumed a special burden to
avoid seeing the monument. I agree with today’s Court that the precedents upon
which Plaintiff relies are stronger cases for standing.
Plaintiff points us to ACLU v. Rabun Cnty. Chamber of Commerce, Inc.,
698 F.2d 1098 (11th Cir. 1983), and to Glassroth v. Moore, 335 F.3d 1282 (11th
Cir. 2003), as examples of cases in which this Court decided that plaintiffs who
alleged that public religious displays violated the Establishment Clause had
injuries sufficient to confer standing. I credit those precedents. But those cases
are of no help to Plaintiff: the facts in those cases are just too different from the
facts in this case.
Rabun was a case brought by Georgia citizens who were regular campers in
the state who challenged a cross on Georgia state park land.4 698 F.2d at 1103.
4 For cases in which an association-plaintiff, like the ACLU, has claimed standing based on the asserted injury of one of its members, I refer to the actual persons claiming injury as the plaintiffs.
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That the Rabun plaintiffs were “residents of Georgia who make use of public parks
which are maintained by the State of Georgia” provided us with a “necessary
connection” between the plaintiffs and the alleged constitutional violation. Id. at
1107. Here that connection is missing. In reality, Doe has no actual connection to
Dixie County: he chiefly resides in North Carolina, and it is not even clear that
Dixie County is the only county in Florida in which he will some day consider
purchasing property (or, in which he is considering purchasing property some
day).
The Alabama lawyer plaintiffs in Glassroth had actually seen the offending
monument in the Alabama State Judicial Building several times and would
inevitably need to have seen the monument in the future performance of their
state-licensed professional duties. 335 F.3d at 1288. Doe, a non-resident of Dixie
County, has seen the monument once, has no obligation or occasion to visit the
courthouse or Dixie County, and is not sure when he will visit the courthouse or
the County again, if ever.
From another Circuit, Plaintiff says that Doe’s injury is more severe than
that of the plaintiffs in ACLU v. City of St. Charles, 794 F.2d 265 (7th Cir. 1986).
I disagree. The plaintiffs in St. Charles sued the City in which they lived; they
were injured by having to detour inconveniently from streets they ordinarily used
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so that they could avoid a lighted cross that the Seventh Circuit said “curtail[ed]
their use of public rights of way.” 794 F.2d at 268.
Plaintiff has shown us no case in which a person similar to Doe -- a non-
resident (who cannot see the monument from his home) who receives no services
from, owes no duties to, and is not required to visit regularly (or even
infrequently) a local government jurisdiction with whom he has no actual
relationship -- had standing to sue a government (unconnected to him) for having a
monument on the steps of its administrative building. For standing, we do not
search for the ideal. But the Constitution requires something more than the facts
presented here to empower legitimate federal judicial action: even an evidentiary
hearing in district court.
Doe’s affidavit says Doe will not consider buying land in the pertinent
county as long as the monument is there. To me, Plaintiff’s theory of standing is
makeshift in nature: some kind of cursory, drive-by theory of standing --
insufficient to kick on our powers. The Supreme Court has told us that a
plaintiff’s just asserting he was injured is not enough for standing: to make a
federal case out of an Establishment-Clause violation from government conduct,
the conduct must directly and concretely injure the plaintiff. The Constitution’s
Establishment Clause, according to the Supreme Court, “does not provide
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[offended parties] a special license to roam the country in search of governmental
wrongdoing and to reveal their discoveries in federal court.” Valley Forge, 102 S.
Ct. at 766.
When the acts necessary to make a plaintiff’s asserted injury happen are in
the plaintiff’s own control (going to the courthouse in another county), the
Supreme Court “insist[s] that the injury proceed with a high degree of
immediacy.” Lujan, 112 S. Ct. at 2138-39 n.2.
Doe’s “vague desire” to intend to consider looking for property in the
County, with no specific and concrete plan to do so, is insufficiently imminent to
establish injury for standing. See Summers v. Earth Island Inst., 129 S. Ct. 1142,
1150-51 (2009). Doe has no current intention to look for property in Dixie
County; that buying property in the County “can be [his] intentions again” is not
good enough: his asserted injury is too remote and too hypothetical to be a
Constitutional injury.
Besides, Doe said that he could intend to buy property in Dixie County if he
sold his Trenton property. He had not sold the Trenton property when the civil
action was filed; as far as the record shows, he still has not sold the Trenton
property. At the time of his deposition, Doe had no specific plans to sell his
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Trenton property.5 “Such ‘some day’ intentions” without concrete plans or
“specification of when the some day will be” are not enough for “actual or
imminent” injury. Lujan, 112 S. Ct. at 2138 (emphasis in original). Doe testified
that he does not know when the some day will be.6
This record is good enough now and does not establish Doe’s injury in fact.
I would rule today that Plaintiff has no standing to sue on Doe’s behalf.
5 For jurisdiction, standing had to exist when the suit was filed (not arise later). Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 120 S. Ct. 693, 704 (2000) (“[W]e have an obligation to assure ourselves that [the plaintiff] had Article III standing at the outset of the litigation.”). It is not enough for Plaintiff to try to establish, in terms of shifting reality, the requirements of standing as the case progresses through the federal courts. 6 Doe’s testimony about his future intentions to look for property in Dixie County reads like the testimony the Supreme Court decided was insufficient to support a finding of “actual or imminent” injury in Lujan: Ms. Kelly stated that she traveled to Egypt in 1986 and “observed the traditional habitat of the endangered nile crocodile there and intends to do so again, and hopes to observe the crocodile” . . . . Ms. Skilbred . . . “intends to return to Sri Lanka in the future . . . .” When Ms. Skilbred was asked at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that “I intend to go back to Sri Lanka,” but confessed that she had no current plans: “I don’t know when. There is a civil war going on right now. I don’t know. Not next year, I will say. In the future.” 112 S. Ct. at 2138 (emphasis added) (citations and alterations omitted). In Doe’s deposition, he does not even say -- although the Lujan plaintiffs did say -- that he actually intends to do anything. Doe says that he could intend to buy property if he sells his home in Trenton (a sale for which he has no specific plans).
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Addressing the causation and redressability elements of standing is difficult
because Doe has established no injury (with no injury a federal court cannot
decide the cause or provide a cure). Even so, Plaintiff has not come close to
assuring me that Doe’s behavior really would likely change as a result of his
getting the monument to be removed.
I have reviewed Doe’s testimony about his considering buying property in
Dixie County and about his reasons for not buying property in the County. (I pass
over the usual reasons and things like never having agreed on price). Doe has said
that he did not purchase property for many reasons:7 including the Dixie County
government, a writing, a cartoon, a website, being “coldly” treated by the people at
the courthouse, and the Ten Commandments monument (and no sale of his current
property). Because Doe says that many things in the courthouse -- aside from just
the monument Plaintiff challenges -- caused him to stop looking to buy property, I
see only a mere possibility (no “substantial likelihood”) that Doe would intend to
look seriously for property to buy in the County, if the district court again ordered
the monument to be removed and it was removed.8
7 Compare, for example, Rabun, where the plaintiffs said “they would not camp” in the pertinent state park “because of the cross.” 689 F.2d at 1104. 8 Today, for discussion’s sake, I have supposed that someone in Doe’s position -- for standing -- would not have to have in hand some kind of contract that truly obligated him, contingent only upon the removal of the pertinent monument, to have (without significant delay)
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Under the Constitution, the question of jurisdiction must be dominant in the
thinking of federal judges. We must watch our jurisdiction like a hawk. Parties to
litigation cannot stipulate to Article III Court jurisdiction. In the same line, I
decline to turn a blind eye to the full transcript of Doe’s deposition taken in this
civil action, although the parties here did not file the whole deposition with the
district court. It is not the business of our Court to decide substantive legal
questions when no actual “case or controversy” -- the condition precedent to
legitimate federal judicial action -- is before us. Valley Forge, 102 S. Ct. at 767.
Perhaps someone else believes they are injured by this monument. Perhaps
another action will be brought or perhaps not. But no sufficiently injured party --
who has shown all of standing’s elements -- is before the Court in this civil action.
Plaintiff has failed to show me its standing so that Article III Courts have
legitimate power to decide the substantive question Plaintiff raises or even to give
Plaintiff a third chance to show standing. Today, I would reverse the district
court’s decision on standing, vacate the judgment for Plaintiff, and remand the
a regular presence in Dixie County. Of course, Doe is not now (and never has been) under any obligation to do anything about property in Dixie County -- now or in the future: whether the monument is removed per federal court order or not.
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matter to the district court for dismissal based on lack of jurisdiction.