7th Circuit Taxpayer Standing Decision

[Ira (Chip) Lupu]

Dan Conkle's post, about the 7th Circuit's application of  Hein v. FFRF to Hinrichs v. Indiana House Speaker,  legitimates my shamless plug for a piece about Hein that Bob Tuttle and I have now posted on SSRN:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1022398

Several things are striking about Hinrichs:
1.  Neither majority nor dissent really wrestles with questions of how Flast v. Cohen (with all its emphasis on Art. I, taxing and spending) should apply to state taxpayers;
2. As the dissent in Hinrichs points out, Hein emphasized executive branch discretion -- but Hinrichs is entirely about legislative branch behavior (Indiana House Rules, practices, and budget); and 
3.  The expenditures alleged in Hinrichs are flimsy ("thank you" notes, and photos for invited clergy, none of which are necessary for the practice of prayer).  But it is quite apparent that an observer of legislative prayer would have standing to challenge it, and, indeed, Hinrichs had alleged observer standing (he was a lobbyist) but had dropped that basis for standing along the way.  So we can now expect a new lawsuit, with an observer-plaintiff -- seems like quite a waste re: the efforts in this litigation, though Bob and I speculate in our paper that Hein may be the first step toward getting rid of observer standing in Establishment Clause cases as well.  In any event, the 7th Circuit has side-stepped a difficult case (because of the highly sectarian quality of many of the prayers) about the merits of prayer practices in the Indiana House.



---- Original message ----
>Date: Tue, 30 Oct 2007 15:09:57 -0400
>From: "Conkle, Daniel O." <conkle at indiana.edu>  
>Subject: 7th Circuit Taxpayer Standing Decision  
>To: "'Law & Religion issues for Law Academics'" <religionlaw at lists.ucla.edu>
>
>   The 7th Circuit, 2-1 (majority opinion by Judge
>   Ripple, joined by Judge Kanne), has extended Hein v.
>   Freedom from Religion Foundation to a case involving
>   a claim of *state* taxpayer standing.  The case
>   involves a taxpayer challenge to sectarian
>   legislative prayer in the Indiana House of
>   Representatives.  The plaintiffs earlier had won a
>   district-court injunction against this practice, and
>   the 7th Circuit had tentatively agreed in denying a
>   stay, but the 7th Circuit now concludes that Hein,
>   combined with DaimlerChrysler Corp. v. Cuno, calls
>   for dismissal for lack of standing.
>    
>   Judge Wood dissents, arguing that the majority
>   misreads Hein.  Judge Wood also suggests that proper
>   plaintiffs would not be difficult to find, based on
>   more direct encounters with the prayers, etc., but
>   she argues that the existing taxpayer plaintiffs
>   should themselves have been permitted to proceed.
>    
>   Hinrichs v. Speaker of the House of
>   Representatives, 
>   http://www.ca7.uscourts.gov/tmp/7S0THZZJ.pdf
>    
>   Daniel O. Conkle
>   *******************************************
>   Daniel O. Conkle
>   Robert H. McKinney Professor of Law
>   Indiana University School of Law
>   Bloomington, Indiana  47405
>   (812) 855-4331
>   fax (812) 855-0555
>   e-mail conkle at indiana.edu
>   *******************************************
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University School of Law 
2000 H St., NW 
Washington, DC 20052
(202)994-7053