Richard Smith, and v. Charles F. Denny, And

Ninth Circuit

Richard Smith, and v. Charles F. Denny, And

417 F.2d 614, 1969 U.S. App. LEXIS 10367

CourtCourt of Appeals for the Ninth Circuit

DecidedOctober 20, 1969

Docket22861

StatusPublished

Cited by7 cases

This text of 417 F.2d 614 (Richard Smith, and v. Charles F. Denny, And) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Richard Smith, and v. Charles F. Denny, And, 417 F.2d 614, 1969 U.S. App. LEXIS 10367 (9th Cir. 1969).

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Opinion

PER CURIAM:

The motion to dismiss is granted. The plaintiffs (appellants) now have no interest whatever in the litigation. The children for whom the suit was brought have graduated from high school, thus depriving them and their parents of any continuing interest in the litigation.

Appellants resist the motion with an impressive array of authorities. We think this is one case still covered by Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475.

Subsequent authorities indicate that where there is a strong chance that the same complained of conduct will reoccur and the same plaintiffs be offended by it, the cause is not necessarily moot.

Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 is the best authority of appellant, but we distinguish it this way:

In Moore the appellants, who were candidates for the post of presidential elector, challenged the exclusion of their names from the ballot. The Supreme Court decided that although the election was over, the case was not moot because the appellants would again be subjected to the state election law at issue if they chose to again seek election as presidential electors. The appellants here do not show how they might ever be subjected to the pledge of allegiance ceremony held in Redding, California, secondary schools by directive of the Redding school board or suffer any direct harm therefrom. Thus, while the appellants in Moore faced *615 the possibility of future direct harm, the appellants here fail to demonstrate such a possibility and none is apparent to us.

The contention that appellants have a standing as taxpayers we regard as too fragile a hook to hang a legal claim on here

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PER CURIAM:

The motion to dismiss is granted. The plaintiffs (appellants) now have no interest whatever in the litigation. The children for whom the suit was brought have graduated from high school, thus depriving them and their parents of any continuing interest in the litigation.

Appellants resist the motion with an impressive array of authorities. We think this is one case still covered by Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475.

Subsequent authorities indicate that where there is a strong chance that the same complained of conduct will reoccur and the same plaintiffs be offended by it, the cause is not necessarily moot.

Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 is the best authority of appellant, but we distinguish it this way:

In Moore the appellants, who were candidates for the post of presidential elector, challenged the exclusion of their names from the ballot. The Supreme Court decided that although the election was over, the case was not moot because the appellants would again be subjected to the state election law at issue if they chose to again seek election as presidential electors. The appellants here do not show how they might ever be subjected to the pledge of allegiance ceremony held in Redding, California, secondary schools by directive of the Redding school board or suffer any direct harm therefrom. Thus, while the appellants in Moore faced *615 the possibility of future direct harm, the appellants here fail to demonstrate such a possibility and none is apparent to us.

The contention that appellants have a standing as taxpayers we regard as too fragile a hook to hang a legal claim on here

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417 F.2d 614, 1969 U.S. App. LEXIS 10367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-smith-and-v-charles-f-denny-and-ca9-1969.

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