Osediacz v. City of Cranston

United States Court of Appeals
For the First Circuit

No. 04-2673

GRACE C. OSEDIACZ,

Plaintiff, Appellee,

v.

CITY OF CRANSTON, ETC., ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.

Tom Marcelle, with whom Steven Frias and Michael Glucksman,
City Solicitor, were on brief, for appellants.
Michael T. Eskey, with whom Amato A. DeLuca, Miriam Weizenbaum
and DeLuca & Weizenbaum Ltd. were on brief, for appellee.

July 6, 2005
 SELYA, Circuit Judge. This appeal has its genesis in a

decision by Cranston, Rhode Island (the City) to institute a policy

(the Policy) that allowed private parties to erect holiday displays

on a prime piece of public property, subject to certain

administrative requirements and the approval of the mayor. A

number of individuals and groups seized the opportunity.

Collectively, they erected a myrioramic array of exhibits, some of

which (such as a nativity scene) were overtly religious. A citizen

of Cranston took umbrage and sued for declaratory and injunctive

relief.

The district court rebuffed the plaintiff's Establishment

Clause challenge but found her Free Speech Clause claim meritorious

and enjoined continued use of the Policy on the ground that it gave

the mayor unconstrained authority to approve (and, by extension, to

disapprove) proposed displays. Osediacz v. City of Cranston, 344

F. Supp. 2d 799, 814 (D.R.I. 2004). The City appeals. Concluding,

as we do, that the plaintiff lacks standing to mount a challenge

under the Free Speech Clause, we reverse.

I.

Background

The facts are straightforward. As the 2003 holiday

season approached, the City issued the Policy, which designated the

south lawn of City Hall as a limited public forum for the display

of holiday-themed and seasonal decorations. The Policy was

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designed to continue in force from year to year. It permitted the

public to erect "appropriate" displays between December 5 and

January 1, defined "appropriate" as "being suitable and proper for

the holiday occasion," and explicitly prohibited any display that

would "shock the consciousness [sic] of the community." The Policy

required any person wishing to erect an exhibit to provide his or

her name, address, and telephone number, a brief written

description of the exhibit, and a signed release absolving the City

of any liability for damage to the exhibit. Of particular

pertinence here, the Policy proclaimed that the mayor or his

designee "must approve" all displays.

In short order, several exhibits appeared on the south

lawn. These included a large menorah accompanied by a sign

conveying wishes for "a Happy Chanukah"; a near-life-size nativity

scene; an inflatable seven-foot-tall snowman and a similarly sized

Santa Claus; a huge holographic angel; a train of fifteen pink

flamingos with Santa Claus hats; and a sign that read "Happy

Holidays from the Teamsters Union." Faced with this embarrassment

of riches, the City determined on December 21, 2003 that the south

lawn could contain nothing more and barred further entries.

On December 22, 2003, plaintiff-appellee Grace Osediacz

filed suit in the United States District Court for the District of

Rhode Island. She asserted that the display of religious symbols

on the City Hall lawn violated the Establishment Clause. She also

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challenged the Policy as contravening the Constitution's

Establishment, Free Speech, and Due Process Clauses.

After a brief period of discovery, the City moved for

summary judgment with respect to the Establishment Clause claims.

The plaintiff opposed the motion. The district court expanded the

summary judgment battleground to include the free speech claim and

solicited additional affidavits and briefs. See Berkovitz v. Home

Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996) (discussing a

district court's authority to grant sua sponte summary judgment).

In her main affidavit, the plaintiff portrayed herself as

a Cranston resident and taxpayer who regularly conducts business at

City Hall. She stated that she found the spectacle of a menorah

and creche on municipal property an inappropriate governmental

endorsement of religion. She did not aver, however, that she

herself harbored any interest in erecting a display.

The district court ruled that the tableau on the south

lawn of City Hall, though it included religious symbols, was

nothing more than "a celebration of the holiday in both its

religious and secular senses." Osediacz, 344 F. Supp. 2d at 807

(citing Lynch v. Donnelly, 465 U.S. 668, 680-81 (1984)). The court

further ruled that the displays had no religious purpose and that

they did not have the effect of endorsing religion. Id. at 807-10

(citing County of Allegheny v. ACLU, 492 U.S. 573, 579-82 (1989)).

Consequently, the court granted partial summary judgment in the

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City's favor on the plaintiff's flagship Establishment Clause

claim.1 See id. at 815.

The court was less sanguine about the Policy's free

speech implications. After determining that the plaintiff had

standing to raise a free speech claim, id. at 811-12, the court

noted that the Policy, on its face, provided no meaningful

standards that in any way constrained the mayor's authority to

approve or disapprove displays, id. at 812-13. Nor was there a

sufficient history of past practice from which such standards could

be inferred. Id. at 813-14. Because the Policy vested essentially

standardless discretion in the mayor to grant or withhold approval

for displays at his whim, the Policy constituted a prior restraint

on speech and, therefore, transgressed the Free Speech Clause of

the First Amendment. Id. at 814 (citing City of Lakewood v. Plain

Dealer Publ'g Co., 486 U.S. 750, 772 (1988)). The court granted

partial summary judgment for the plaintiff on that claim, id., and

accordingly, declined to address her due process claim, id. at 801

n.2.

The City appeals from the district court's resolution of

the free speech claim. We have jurisdiction under 28 U.S.C. §

1291. Since the district court decided this case at the summary

1
The plaintiff has not appealed from this ukase. Accordingly,
that portion of the judgment is not before us and we eschew further
discussion of it.

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judgment stage, we undertake de novo review. Houlton Citizens'

Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

II.

Analysis

Federal courts are courts of limited jurisdiction. Rhode

Island v. EPA, 378 F.3d 19, 22 (1st Cir. 2004). They are not

empowered to offer advisory opinions. United States v. Green, 407

F.3d 434, 444 (1st Cir. 2005). Thus, standing to sue is an

indispensable component of federal court jurisdiction. As the

Supreme Court has explained:

[T]he case or controversy requirement defines
with respect to the Judicial Branch the idea
of separation of powers on which the Federal
Government is founded. The several doctrines
that have grown up to elaborate that
requirement are founded in concern about the
proper — and properly limited — role of the
courts in a democratic society.

Allen v. Wright, 468 U.S. 737, 750 (1984) (citation and internal

quotation marks omitted).

In this instance, our discussion begins and ends with the

standing issue. Standing doctrine comprises a mix of

constitutional and prudential criteria. See Elk Grove Unified Sch.

Dist. v. Newdow, 124 S. Ct. 2301, 2308 (2004); N.H. Right to Life

PAC v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996). The constitutional

core of standing requires that a plaintiff make a tripartite

showing: she must demonstrate that she has suffered an injury in

fact, that her injury is fairly traceable to the disputed conduct,

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and that the relief sought promises to redress the injury

sustained. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992); Gardner, 99 F.3d at 13. The party seeking to invoke the

federal court's jurisdiction — normally, the plaintiff — bears the

burden of pleading and proof on each step of the standing pavane.

Lujan, 504 U.S. at 561.

In keeping with these important concepts, the Supreme

Court has embellished the constitutional requirements attendant to

standing with an array of prudential monitions. The prudential

aspects of standing include "the general prohibition on a

litigant's raising another person's legal rights, the rule barring

adjudication of generalized grievances more appropriately addressed

in the representative branches, and the requirement that a

plaintiff's complaint fall within the zone of interests protected

by the law invoked." Allen, 468 U.S. at 751.

In this case, the City challenges the plaintiff's

standing. It reasons that because the plaintiff never had any

interest in erecting a display, there was no chance that she would

be subjected to the vagaries of the approval process and, hence,

she has failed to show a sufficiently personalized injury emanating

from the Policy. To bolster this reasoning, the City relies

heavily on Laird v. Tatum, 408 U.S. 1 (1972), in which the Supreme

Court wrote that if the complaining parties "themselves are not

chilled, but seek only to represent those millions whom they

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believe are so chilled, [they] clearly lack that personal stake in

the outcome of the controversy essential to standing." Id. at 13

n.7 (citations and internal quotation marks omitted).

The plaintiff attempts to blunt the force of this

reasoning by touting a line of cases holding that traditional

standing requirements are relaxed in the precincts patrolled by the

First Amendment. See, e.g., Broderick v. Oklahoma, 413 U.S. 601,

612 (1973) (holding that when First Amendment concerns are at

stake, a plaintiff may "challenge a statute not because [her] own

rights are violated, but because . . . the statute's very existence

may cause others not before the court to refrain from

constitutionally protected speech or expression"). The district

court accepted this distinction. See Osediacz, 344 F. Supp. 2d at

812. We do not.

We think that this clash between competing lines of

authority may readily be resolved by sorting out some basic

concepts. Standing is not a unitary concept but, rather, a group

of doctrines collectively intended to ensure that the federal

courts adjudicate only those actual cases or controversies that

fall within the purview of Article III of the Constitution. See

Newdow, 124 S. Ct. at 2308 (describing standing doctrine as "a

series of rules"). When certain types of facial challenges to

statutes, ordinances, regulations, or governmental policies are

premised on First Amendment grounds, they invite a lowering of

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conventional standing barriers because the traditional jus tertii

ban on litigating the rights of third parties is arguably

inapplicable.2 See Forsyth County v. Nationalist Movement, 505

U.S. 123, 129 (1992) (explaining that third-party standing concerns

will not pretermit a facial challenge to a statute on First

Amendment grounds). Thus, the lowering of the bar intersects with

standing doctrine only on the issue of third-party standing.

That distinction demonstrates why City of Lakewood and

similar cases are not persuasive here. Historically, facial

challenges were disfavored, in part because they were thought to

require the challenger to raise the rights of others. See, e.g.,

United States v. Raines, 362 U.S. 17, 20-22 (1960). Under this

traditional approach, the normal jus tertii rules made it nearly

impossible to have a court declare a statute facially

unconstitutional; after all, an individual litigant would have

standing to object to it only as applied to her situation. See

Richard H. Fallon, As-Applied and Facial Challenges and Third Party

Standing, 113 Harv. L. Rev. 1321, 1322 (2000). As a corollary, a

plaintiff who had not herself been subjected to an unconstitutional

2
Even this limited relaxation of conventional standing
requirements is controversial. See, e.g., Richard H. Fallon, Jr.,
As-Applied and Facial Challenges and Third Party Standing, 113
Harv. L. Rev. 1321, 1359-64 (2000) (arguing that the Supreme
Court's permissive approach to facial challenges in the First
Amendment context has little to do with third-party standing but,
rather, reflects a substantive concern that facially invalid
statutes harm the plaintiff herself, regardless of whether a more
narrowly drawn statute could regulate her conduct).

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exercise of power could not challenge the offending statute at all.

See id.

The City of Lakewood Court recognized that as long as no

one was denied a permit, no one would have standing to mount a

challenge — yet the chilling effect of the unconstitutional grant

of standardless discretion would remain undiminished. Id. at 757-

58. To correct this problem, the Court loosened the customary

prudential limits that constrain a plaintiff's standing with

respect to facial challenges brought against statutes that vest

unbridled discretion in public officials to censor speech. See id.

at 759. Confronted with a facial challenge to a licencing statute,

it ruled that in the case of "a licensing statute [that] allegedly

vests unbridled discretion in a government official over whether to

permit or deny expressive activity," a plaintiff "who is subject to

the law may challenge it facially without the necessity of first

applying for, and being denied, a license." 468 U.S. at 755-56.

The Court did not, however, carve out any exception to

the core requirements of constitutional standing. These

requirements, including the bedrock requirement that the plaintiff

herself have suffered an injury in fact, were left intact.

Importantly, the Court recognized that the theoretical risk of

self-censorship inherent in statutes conferring standardless

discretion on public officials was not itself a sufficient injury

within the meaning of Article III. Id. at 759. Indeed, the

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Justices stressed that a plaintiff, as a prerequisite to suit, had

to show that the law that she aspired to challenge "pose[d] a real

and substantial threat [to] identified censorship risks." Id.

(emphasis supplied); see also Tatum, 408 U.S. at 13-14 & n.7

(explaining that even in First Amendment cases, courts must guard

against rendering advisory opinions).

Virtually by definition, the threat of self-censorship

cannot exist if a party has no intention either of speaking or

otherwise exposing herself to the vagaries of a standardless

licensing policy. It is, therefore, not surprising that in every

case the plaintiff cites, the party mounting a facial challenge at

the very least desired or intended to undertake activity within the

compass of the challenged statute. See, e.g., Forsyth County, 505

U.S. at 127; City of Lakewood, 486 U.S. at 753-54. Consequently,

those cases cannot be read to reduce to a state of irrelevancy the

constitutionally mandated requirement that a plaintiff must show an

injury in fact.

The short of it is that were the instant plaintiff armed

with constitutionally sufficient standing credentials, she could

prevail on an issue of this sort merely by showing that the Policy,

by vesting standardless discretion in the mayor, constitutes an

impermissible prior restraint. See, e.g., Freedman v. Maryland,

380 U.S. 51, 56 (1965). In that event, the plaintiff could press

the rights of others; she would not have to make the additional

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(prudential) showing that the mayor could not, consistent with the

Free Speech Clause, deny her permission to erect a particular

display. The net result, then, is that even though prudential

standing concerns are relaxed in certain facial challenges

implicating the First Amendment, a litigant still must demonstrate

that she satisfies the constitutional minima essential to establish

standing.

Seen in this light, the question reduces to whether the

plaintiff has been injured within the meaning of Article III.

Here, that inquiry is informed by what the plaintiff does not

assert. She does not assert that she herself unsuccessfully

attempted to place her handiwork on the south lawn of City Hall.

She does not assert that she has any interest in erecting a

display, but fears that her expression will be subjugated to a

standardless approval process. She does not assert that the Policy

takes away her appetite for expressing herself or chills her speech

in any cognizable way. Her only claim of injury is that, as a

resident and taxpayer, she is subject to the effects of the Policy

and that, by conferring unbridled discretion on the mayor to

approve or reject displays, the Policy has a chilling effect on the

speech of others.

This is not a sufficient predicate to allow this suit to

go forward. It is apodictic that a mere interest in seeing the

government turn square corners is not the kind of particularized

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interest that can satisfy the most basic constitutional

prerequisite for standing. See Fed. Election Comm'n v. Akins, 524

U.S. 11, 23-24 (1998) (collecting cases). It has been equally

clear for more than three-quarters of a century that, with certain

narrow exceptions not implicated here, taxpayers, as such, lack

generalized standing to challenge the constitutionality of

governmental action. See Frothingham v. Mellon, 262 U.S. 447, 487

(1923). The plaintiff's standing, therefore, cannot be grounded on

the mere fact that she pays taxes to a municipality which, in turn,

expends funds to further an unconstitutional exercise of government

power. See Valley Forge Christian Coll. v. Ams. United for

Separation of Church and State, 454 U.S. 464, 477 (1982).

In the last analysis, all that remains is the question of

whether the risk that the Policy will have a chilling effect on the

speech of others is a sufficient injury to the plaintiff to meet

the first prong of the constitutional test for standing. The

Supreme Court answered that question in Tatum, a case that involved

a challenge to the scope of domestic intelligence gathering by the

United States Army. There, the plaintiffs alleged that the Army

was spying on civilians whom the Army believed might engage in

civil disobedience and that such systematic surveillance chilled

speech by deterring citizens from indulging in expression that

might draw the Army's ire. Tatum, 408 U.S. at 9-10.

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 The Tatum Court held that the plaintiffs, who had not

themselves been surveilled, lacked standing to challenge the

purportedly pernicious practice. Id. In so holding, the Court

acknowledged that a chill on speech sometimes may be a cognizable

injury but explained that, in order to have standing, the plaintiff

must be within the class of persons potentially chilled. Id. at

12-13. In words that seem apropos here, the Court concluded:

"Allegations of a subjective 'chill' are not an adequate substitute

for a claim of specific present objective harm or a threat of

specific future harm." Id. at 13-14.

The plaintiff's plight falls squarely within the compass

of this admonition. Although offended by the Policy, she has

sustained no injury in fact. Thus, she has no sufficient personal

stake in this litigation to ground a determination that she has

standing to sue. See id. at 13 n.7. Even if the Policy chilled

some speech, it did not chill any of the plaintiff's speech.

The plaintiff strives mightily to dodge this bullet. Her

first attempted evasion is a suggestion that we should not assume

from an empty record that her speech was not chilled. That

suggestion turns the standing inquiry on its head. It was the

plaintiff who invoked federal jurisdiction. Hence, it was her

burden to put adequate facts in the record from which a court

reasonably could conclude that she was among those whose speech was

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potentially chilled. See Lujan, 504 U.S. at 561. Having failed to

carry that burden, she lacks standing to maintain this suit.

The plaintiff's second attempted evasion is equally

unavailing. She suggests that because the Policy vests unfettered

discretion in the mayor over what displays are permitted, the mayor

conceivably could use that discretion to favor religious

expositions and, thus, infringe the plaintiff's rights under the

Establishment Clause. We reject this effort to hitch the

plaintiff's First Amendment claim to her defunct Establishment

Clause claim. Simply asserting that the mayor might exercise his

authority in an unconstitutional manner is no different than saying

that the existence of standardless discretion is itself

unconstitutional and redressable without regard to the existence of

an injury in fact. Any way the pie is sliced, the plaintiff still

has to show some reasonable possibility that she would be subject

to the constitutionally defective action. See Tatum, 408 U.S. at

13 n.7. She has not done so.

It is, of course, disquieting whenever government takes

an action that seems to transgress a constitutional protection.

But in the law, as elsewhere, "two wrongs seldom make a right,"

Foster v. Dalton, 71 F.3d 52, 57 (1st Cir. 1995) — and it would be

wrong to arrogate unto ourselves the power to hear a case at the

behest of a plaintiff who lacks standing to sue.

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 Moreover, we perceive no unfairness. The standing

inquiry is not very demanding. To satisfy its first element, the

plaintiff need not show that the mayor actually denied her

permission to erect a display. See, e.g., City of Lakewood, 486

U.S. at 756. She need not even show that she actually made such a

request. See, e.g., Freedman, 380 U.S. at 56. Nevertheless, the

record must contain evidence sufficient to indicate an objectively

reasonable possibility that she would be subject to the allegedly

unconstitutional mayoral approval requirement. See Tatum, 408 U.S.

at 11; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 183-84 (2000) (explaining that a

plaintiff need not show a certainty of future harm to establish

standing, so long as there is a reasonable threat of such harm).

The record before us contains no such evidence. It follows that

this suit cannot be maintained in a federal court.

III.

Conclusion

Let us be perfectly clear. We recognize, as did the

learned district court, Osediacz, 344 F. Supp. 2d at 812-14, that

the Policy is constitutionally suspect and we encourage the City to

abandon it (or, at least, to modify it substantially). Absent a

plaintiff with a cognizable interest in the outcome, however, this

is not an appropriate proceeding in which to adjudicate the

Policy's merits.

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 We need go no further. The Constitution requires that

litigants have a personal stake in a case before they may sue in a

federal court, see, e.g., Warth v. Seldin, 422 U.S. 490, 499

(1975), and this plaintiff has not provided facts sufficient to

show that she possesses such a stake. Accordingly, her free speech

claim should have been dismissed without prejudice for want of

subject matter jurisdiction.3

We reverse the partial summary judgment entered by the

district court on the free speech claim and remand the case to the

district court with instructions to dismiss that claim and the due

process claim without prejudice for want of standing. All parties

shall bear their own costs.

3
For the same reasons, the plaintiff's due process claim, not
reached by the lower court, see 344 F. Supp. 2d at 801 n.2,
likewise should have been dismissed.

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