I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Thursday, February 19, 2009

More thoughts about hokey taxpayer standing issue in Caldwell v. Caldwell

Review: I previously expressed surprise that (1) the Caldwell v. Caldwell plaintiffs did not appeal the district court's rulings that they lacked taxpayer standing to sue and that (2) the 9th circuit appeals court made no review of those rulings. Then I started thinking about a commenter's observation: " . . .taxpayer-standing is one of several methods to establish standing. You only need one method to establish standing." So I decided to take a closer look at the district court opinion to see if the taxpayer standing issue can really be avoided.

The district court opinion divides the "Standing" rulings (pages 7-13) into three sections: Sec. a., "federal taxpayer standing;" Sec. b., "state taxpayer standing;" and Sec. c., "cognizable injury in fact." The separate listing of "cognizable injury in fact" is surprising because taxpayer standing falls into the category of such injury. The taxpayer-standing theme appears even in Sec. c:

In determining that no standing existed where plaintiffs alleged "the deprivation of the fair and constitutional use of their tax dollar," the Valley Forge [Valley Forge Christian College v. Americans United for Separation of Church and State] court reiterated its prohibition on standing claims that are predicated on "the right, possessed by every citizen, to require that the government be administered according to the law" . . . See 454 U.S. at 482-83.

So maybe the taxpayer standing issue will come back to haunt the plaintiffs in the Supreme Court. Maybe the defendants raised the taxpayer standing issue again in their brief opposing the petition for certiorari -- I don't know. I am having a really hard time getting a hold of a copy of the opposition brief. Update: I have received a copy of the opposition brief and it does not mention taxpayer standing.

To summarize my position about taxpayer standing:

(1) If the website had been privately-funded instead of government-funded, the issue of taxpayer standing would have never arisen. Taxpayer injury is not a fair criterion for determining standing to sue, because this criterion cannot be uniformly applied to all establishment clause lawsuits. The taxpayer standing issue gives the courts an excuse to deny standing.

(2) There was no majority opinion in the Supreme Court's Hein v. Freedom from Religion Foundation decision, but the opinions expressly show that the justices were 6-3 against making a distinction between Congressional funding and executive-branch funding, yet because of the "Marks rule" it is assumed that the court ruled in favor of such a distinction! [1] If Roberts and Kennedy had joined Scalia's opinion instead of Alito's, then the vote would have been 8-1 against the distinction and under the Marks rule the court's ruling would still be in favor of the distinction!

(3) The taxpayer standing issue was well summed up by Justice Harlan's dissenting opinion in Flast v. Cohen, 392 U.S. 83 [2] --

The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues. . (citation omitted) . . . The interests he represents, and the rights he espouses, are, as they are in all public actions, those held in common by all citizens. To describe those rights and interests as personal, and to intimate that they are in some unspecified fashion to be differentiated from those of the general public, reduces constitutional standing to a word game played by secret rules.

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3 Comments:

Anonymous Anonymous said...

I would be interested in your comments regarding the merits of taxpayer standing in a suit by a taxpayer to challenge the constitutionality of Internal Revenue Code section 107 (income tax exemption for ministerial housing allowances), which is pursuant to the "tax and spend" authority of Congress under Article 1, Section 8 of the U.S. Constitution, as amended, as a violation of the Establishment Clause.

Chemerinsky was going to file such a suit as a result of his involvement in the Warren case, but hasn't found the time to do so.

Saturday, April 11, 2009 1:01:00 PM  
Anonymous Anonymous said...

What is your opinion on "taxpayer standing" when a taxpayer (the public) seeks to recover taxes lost when two state government entities file complaints against one another, and the complaints are being dismissed as meritless and frivilous, e.g. County Sheriff files state bar complaints against County Manager and Director of Civil Litigation? Does the public have the ability to recoup tax revenue lost to frivilous and meritless litigation between government agencies?

Tuesday, December 29, 2009 4:08:00 PM  
Blogger Larry Fafarman said...

I don't believe in the principle of taxpayer standing at all.

Tuesday, December 29, 2009 4:27:00 PM  

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