Habecker v. Town of Estes Park, Colo.

FILED
United States Court of Appeals
Tenth Circuit

March 14, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID HABECKER,

Plaintiff-Appellant,

v. No. 06-1515

TOWN OF ESTES PARK,
COLORADO; BOARD OF TRUSTEES
OF THE TOWN OF ESTES PARK,
COLORADO; JOHN BAUDEK, Mayor
of the Town of Estes Park, Colorado;
VICKIE O’CONNOR, Town Clerk of
the Town of Estes Park, Colorado;
GREG WHITE, Town Attorney for the
Town of Estes Park, Colorado; SUE
DOYLEN, Trustee of the Town of Estes
Park, Colorado; LORI
JEFFREY-CLARK, Trustee of the Town
of Estes Park, Colorado; CHUCK
LEVINE, Trustee of the Town of Estes
Park, Colorado; WAYNE NEWSOM,
Trustee of the Town of Estes Park,
Colorado; BILL PINKHAM, Trustee of
the Town of Estes Park, Colorado;
ESTES PARK CITIZENS FOR
REPRESENTATIVE GOVERNMENT;
DEWEY SHANKS, Member, Estes Park
Citizens for Representative
Government,

Defendants-Appellees,

and
 UNITED STATES OF AMERICA,

Defendant–Intervenor-Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 05-CV-153-EWN-MJW)

Robert R. Tiernan, Denver, Colorado, for Plaintiff-Appellant.

Steven J. Dawes (Sophia H. Tsai, with him on the brief), Light Harrington &
Dawes, P.C., Denver, Colorado, for Defendants-Appellees. *

Lowell V. Sturgill, Jr., Attorney (Troy A. Eid, United States Attorney, Peter D.
Keisler, Assistant United States Attorney, and Robert M. Loeb, Attorney, with
him on the brief), United States Department of Justice, Washington, D.C., for
Defendant- Intervenor-Appellee.

Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.

LUCERO, Circuit Judge.

David Habecker is a former Trustee of the Town of Estes Park, Colorado

(“Town”) and a self-described atheist. After he refused to stand and recite the

Pledge of Allegiance at meetings of the Town Board of Trustees (“Board”),

several Town citizens organized a successful campaign to recall him from office.

Habecker then brought this federal civil rights suit against the Town and members

*
Defendants Dewey Shanks and Estes Park Citizens for Representative
Government were not represented in this appeal.

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of the recall committee, alleging violations of the First Amendment and Article

VI of the Constitution. Concluding that Habecker lacked standing, that his claims

were moot, and that he failed to allege a state action, the district court granted

summary judgment to the defendants. We agree that we lack jurisdiction over all

claims and AFFIRM.

I

Habecker was elected in 2000 to fill the seat of a deceased Trustee of the

Town Board and was reelected to a full four-year term in 2002. As a Trustee,

Habecker voted on routine matters such as budgets, appropriations, and hiring and

firing of the Town Manager and Town Attorney. The Board consists of six

Trustees and the Mayor of Estes Park, who sits as an ex officio member with a

tiebreaking vote. Formal Board meetings are held twice a month and are open to

the public.

Events giving rise to this litigation commenced on May 11, 2004, at the

Estes Park Board meeting, when Mayor John Baudeck announced a new “policy”

of opening meetings with the Pledge of Allegiance and asked that all present

stand and recite the Pledge. 1 Mayor Baudeck led the Pledge at the beginning of

1
Although the record contains no explanation of what constitutes a Town
or Board “policy,” or how such a policy is normally adopted, the parties have
stipulated that “the Mayor announced a new policy” when he began opening
meetings with the Pledge. We therefore refer to this decision as a Board policy.

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each Board meeting thereafter, and was continuing to do so at the time this

litigation began.

Habecker joined in standing and reciting the Pledge at the May 11 meeting

and several meetings thereafter, but declined to say the words “under God.” By

September, according to his deposition testimony, Habecker felt hypocritical

reciting even this redacted version of the Pledge, considering that others were

unlikely to see that he was omitting the words “under God.” Thus, at the

September 14, 2004, Board meeting, Habecker sat silently during the recitation of

the Pledge. He explained at the meeting that he did so because of his objection to

the use of the words “under God.” Habecker continued to sit silently through the

Pledge for the remainder of his service as a Trustee.

Upon learning of Habecker’s refusal to recite the Pledge, three citizens of

Estes Park, Dewey Shanks, Norman Pritchard, and Richard Clark, 2 formed a

committee to recall Habecker from office. Pursuant to Colo. Rev. Stat. § 31-4-

501 et seq., 3 the Colorado recall statute, the group collected signatures and filed a

petition for Habecker’s recall with the Town Clerk, Vickie O’Connor. As

required by § 31-4-502(1)(a)(I), the petition included a statement of grounds for

the recall, which read:

2
Richard Clark is the husband of Trustee Lori Jeffrey-Clark.
3
Section 31-4-501 provides in pertinent part: “Every elected officer of any
municipality of the state of Colorado may be recalled from office at any time by
the registered electors of the municipality . . . .”

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 Electors suffer a loss of confidence in Mr. Habecker’s ability to
represent citizen’s [sic] pride, patriotism, and common decency.
Prior to Town Board of Trustees meetings, he purposefully and
irreverently chooses to publicly sit, facing away from the flag of the
United States, during recital of the Pledge of Allegiance. His defiant
behavior occurs because the phrase “. . . under God . . .” offends
him. He states he intends to continue until the United States
Congress strikes the phrase from the Pledge of Allegiance.

Habecker failed to reveal this violation of his principles during
campaigns for election. We consider this omission a deliberate tactic
to assure voter ballots towards his election. We consider this tactic
unethical and unacceptable.

We respect Mr. Habecker’s right to free speech under the
Constitution of the United States, but insist on maintenance of
responsibility, accountability, leadership, respect for others, and high
standards of public conduct. His vital beliefs regarding church/state
personal conflicts were not revealed at the critical time of election.
We do not regard these actions, omissions or motivations honorable
[sic], and demand his removal from his elected position.

Pursuant to § 31-4-502(1)(c), O’Connor certified that the form of the

petition complied with state law. After the petitioners had collected the requisite

number of signatures, O’Connor also determined that the petition met all

requirements for a recall election and submitted it to the Board. See § 31-4-

503(3)(a), (4). At its meeting on December 14, 2004, the Board received the

petition and scheduled a recall election for February 15, 2005.

Habecker filed suit in the District of Colorado on January 28, 2005. Along

with several state law claims not pursued on appeal, Habecker complained that:

(1) The Pledge statute, 4 U.S.C. § 4, facially violates the Establishment Clause of

the First Amendment; (2) The Pledge policy adopted by the Town violates the

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Establishment Clause; (3) The recall election would violate his rights to free

speech and free exercise of religion under the First Amendment; (4) The Town

had established the Pledge as a religious test for public office in violation of

Article VI, Clause 3 of the Constitution; and (5) The Colorado recall statute is

unconstitutional because it allows an official to be recalled based on

constitutionally protected activities.

As defendants, Habecker named the Town, the Board, his five co-Trustees,

the Mayor, the Town Clerk, and the Town Attorney (collectively “Town

defendants”), as well as the three citizens who formed the recall committee and

the committee itself (“recall committee defendants”). Habecker brought his

federal claims directly under the First and Fourteenth Amendments and Article VI

of the Constitution and under 42 U.S.C. § 1983. In addition to seeking the

enjoining of the pending recall election, Habecker sought a judgment declaring

the Pledge statute unconstitutional and the recall election unlawful.

Only the recall committee defendants opposed Habecker’s motion for a

preliminary injunction against the recall election. Because defendants failed to

rebut Habecker’s assertion that the recall would cause him irreparable harm, the

district court granted Habecker’s motion on February 10, 2005, enjoining the

recall from taking place as scheduled on February 15.

On March 2, 2005, however, the district court granted the recall committee

defendants’ motion for reconsideration and dissolved the preliminary injunction

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on the ground that Habecker had failed to show state action depriving him of his

rights as required by the Fourteenth Amendment and § 1983. The Board

subsequently rescheduled the recall election, which was held on March 22, 2005.

By a vote of 903 in favor of recall to 605 against, Habecker was recalled as a

Trustee. Habecker claims that his stance on the Pledge was the predominant

reason for his electoral defeat.

After the recall election, Habecker filed an amended complaint naming the

Freedom From Religion Foundation, a nonprofit organization that “promote[s] the

constitutional principle of separation of church and state,” as a co-plaintiff. 4 In

addition to the relief claimed in the original complaint, the amended complaint

requested reinstatement of Habecker’s seat on the Board, monetary damages of

his lost Trustee’s salary and expenses incurred in opposing the recall, and an

order “that any action of the Board of Trustees which depended on the presence

or vote of [his] successor be held null and void.”

The district court permitted the United States to intervene to defend the

facial constitutionality of the Pledge statute. Thereafter, all parties filed cross

motions for summary judgment. Concluding that Habecker lacked constitutional

standing to challenge either the Pledge statute or the Board policy, that

Habecker’s request for a declaratory judgment was moot given the intervening

election, and that Habecker failed to allege state action sufficient to support a

4
The Freedom From Religion Foundation is not a party to this appeal.

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claim under § 1983, the district court granted summary judgment to the

defendants and intervenor the United States. 5 Habecker timely appeals the grant

of summary judgment as to three claims: (1) the Pledge statute facially violates

the Establishment Clause, (2) the Board’s recitation policy violates the

Establishment Clause, and (3) the Board’s policy violates Article VI. 6 We have

jurisdiction to hear his appeal under 28 U.S.C. § 1291.

II

We review orders granting summary judgment de novo, viewing the

evidence in the light most favorable to the nonmoving party. See Schulz v. City

of Longmont, 465 F.3d 433, 437 (10th Cir. 2006). Summary judgment is

appropriate when the record “show[s] that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed.

5
Having dismissed Habecker’s federal law claims, the district court
declined to exercise supplemental jurisdiction over his state law claims.
Habecker does not appeal that aspect of the court’s decision.
6
Habecker’s opening brief contains a section entitled “Free Exercise
Clause,” but the arguments set forth thereunder relate exclusively to the
Establishment Clause. Assuming that this heading indicates Habecker’s intent to
appeal his free exercise claim, he has failed to “advanc[e] reasoned argument as
to the grounds for the appeal,” and we will not consider it. See Am. Airlines v.
Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992); Fed. R. App. P. 28(a)(9).
It appears that Habecker believes the district court dismissed his Article VI
claim as unraised. In fact, the district court considered Habecker’s claim that the
recall election made the Pledge a de facto “oath of office” in violation of Article
VI. The district court also read Habecker’s motion for summary judgment as
asserting a new and separate Article VI claim based on actual “forced recitation”
of the Pledge, and dismissed that claim as an untimely motion to amend.
Habecker does not urge the latter claim on appeal.

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R. Civ. P. 56(c). As the party seeking to invoke the jurisdiction of the federal

courts, Habecker bears the burden of alleging facts that support jurisdiction.

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990); Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992). Summary judgment based on lack of

jurisdiction should be granted only when “the record is devoid of evidence raising

a genuine issue of material fact that would support the plaintiff’s ultimate burden

of proving [jurisdiction].” Day v. Bond, 500 F.3d 1127, 1132 (10th. Cir. 2007).

Habecker’s appeal cannot proceed on the merits in the absence of an Article

III case or controversy. Lance v. Coffman, 127 S. Ct. 1194, 1196 (2007). Article

III of the Constitution grants federal courts jurisdiction only over “cases” and

“controversies.” U.S. Const. Art. III, § 2, cl. 1. “Without a live, concrete

controversy, we lack jurisdiction to consider claims no matter how meritorious.”

Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007).

Standing, a component of the case-or-controversy requirement, serves to

ensure that the plaintiff is “a proper party to invoke judicial resolution of the

dispute.” Warth v. Seldin, 422 U.S. 490, 518 (1975). To demonstrate Article III

standing:

First, the plaintiff 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. Second, there must be a causal connection between the
injury and the conduct complained of—the injury has to be fairly
traceable to the challenged action of the defendant and not the result
of the independent action of some third party not before the court.

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 Third, it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.

Lujan, 504 U.S. at 560-61 (quotations omitted). We refer to these three familiar

requirements as injury in fact, causation, and redressability. Lance, 127 S. Ct. at

1196. 7

Even if standing exists when a suit is filed, Article III also requires that the

controversy remain live throughout the litigation. United States v. Seminole

Nation of Okla., 321 F.3d 939, 943 (10th Cir. 2002). If a controversy ceases to

exist, the plaintiff’s claims become moot and the court has no jurisdiction to

entertain them. Id.; see also S. Utah Wilderness Alliance v. Smith, 110 F.3d 724,

727 (10th Cir. 1997) (“A federal court has no power to give opinions upon moot

questions or declare principles of law which cannot affect the matter in issue in

the case before it.”).

Habecker identifies three injuries as sources of standing in this case: (1)

his loss of his elected office; (2) social pressure, rising to the level of government

coercion, to recite the Pledge against his beliefs; and (3) exposure to the Pledge at

Board meetings. We conclude that Habecker cannot show the existence of a case

or controversy. His loss of elected office, although an injury in fact, was the

7
Besides these three elements of standing, which are required by Article III
and are referred to as “constitutional” standing requirements, the Supreme Court
recognizes a set of “prudential” standing concerns that may prevent judicial
resolution of a case even where constitutional standing exists. See Allen v.
Wright, 468 U.S. 737, 751 (1984). Because we conclude that Habecker lacks
constitutional standing, we need not consider the issue of prudential standing.

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result of an intervening cause—the electorate—and is not fairly traceable to the

defendants. His claimed injury based on social pressure to recite the Pledge does

not constitute an injury in fact under Article III, and any controversy arising from

an injury based on exposure to the Pledge is now moot given that Habecker is no

longer required to attend Board meetings.

A

As primary support for standing, Habecker relies on the loss of his elected

position as a Trustee of the Board. Without a doubt, this alleged injury

constitutes an injury in fact. His removal from office is a concrete and

particularized harm, in that he is no longer able to enjoy the benefits of his former

position. See Lujan, 504 U.S. at 561 n.1; see also Rutan v. Republican Party, 497

U.S. 62, 77-78 (1990) (recognizing the loss of public employment as an injury in

fact). Additionally, his loss of office is an “actual” injury, in that it has already

occurred, and he is no longer serving as a Trustee.

Injury in fact, however, does not complete our standing inquiry. Habecker

must also show that this injury was caused by the alleged actions of the

defendants, and that it will be redressed if we grant the relief he requests.

Although causation and redressability are often closely related, Nova Health Sys.

v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005), the twin requirements remain

distinct and must be separately met, see Allen v. Wright, 468 U.S. 737, 753 n.19

(1984). We conclude that Habecker has not sufficiently alleged that the

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defendants caused his loss of office. In the absence of causation, he has no

standing to bring this case, and we need not consider whether his injury is

redressable.

To demonstrate causation, Habecker must show that his injury is “fairly

traceable” to the defendants’ actions. Lujan, 504 U.S. at 560. Habecker’s recall

from office resulted from the following chain of events. First, Mayor Baudeck

initiated the pledge policy, leading to Habecker’s decision to sit out the Pledge

based on his objection to the phrase “under God.” After Habecker ceased reciting

the Pledge and explained his discomfort with the phrase “under God,” the recall

committee defendants acted. Committee members then succeeded in collecting

sufficient signatures to trigger a recall election under state law. When this

election took place, a majority voted against Habecker, effecting his removal from

office. Habecker thus contends that the Town and the recall committee caused his

loss of office.

Although the “traceability” of a plaintiff’s harm to the defendant’s actions

need not rise to the level of proximate causation, Article III does “require proof

of a substantial likelihood that the defendant’s conduct caused plaintiff’s injury in

fact.” Nova Health Sys., 416 F.3d at 1156 (citations omitted). If “speculative

inferences are necessary to connect [a plaintiff’s] injury to the challenged action,”

this burden has not been met. Id. at 1157 (quoting Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 45 (1976)). Moreover, where “the independent action

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of some third party not before the court”—rather than that of the defendant—was

the direct cause of the plaintiff’s harm, causation may be lacking. Simon, 426

U.S. at 41-42. That an injury is indirect does not necessarily defeat standing,

“[b]ut it may make it substantially more difficult . . . to establish that, in fact, the

asserted injury was the consequence of the defendants’ actions.” Warth, 422 U.S.

at 504-05.

Between the actions of the defendants and Habecker’s ultimate removal

from office lies an indespensible act by a third party not before the court: the

votes cast by voters of the town of Estes Park. Habecker reasons that those who

voted against him were motivated by his failure to recite the Pledge at Board

meetings, and thus, that his injury was ultimately caused by the challenged acts of

the defendants. As evidentiary support for this argument, Habecker has adduced a

collection of correspondence received by the Board and by Habecker himself

between the September 14 Board meeting and his eventual recall, most of which

addresses Habecker’s failure to recite the Pledge and his perceived religious

beliefs. He points to this correspondence as evidence that Estes Park voters were

indeed motivated by these issues. 8

We simply cannot make such an inferential leap regarding the motivations

of individual voters. When the voters cast their ballots, the decision to vote for or

8
Much of the correspondence offered by Habecker was sent by individuals
who do not live and vote in Estes Park, and thus, is not relevant to the
motivations of Estes Park voters.

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against Habecker’s recall was a purely private matter. We cannot, with any

degree of certainty, know what considerations motivated the 903 individuals who

chose to vote in favor of recalling Habecker. Any assumption in this regard

would be a “speculative inference” insufficient to support causation. Nova Health

Sys., 416 F.3d at 1157; see also Simon, 426 U.S. at 42-43 (holding that the IRS’s

advantageous tax treatment of hospitals who denied certain services to the

indigent did not cause indigent plaintiffs’ injury, because “[i]t is purely

speculative whether the denials of service . . . fairly can be traced to [the IRS’s]

‘encouragement’ or instead result from decisions made by hospitals without

regard to the tax implications”).

Because we cannot presume that the voters’ decision to recall Habecker

was connected to his position on the Pledge or to his religious beliefs, this

decision breaks the chain of causation between the Pledge controversy and

Habecker’s electoral loss. Without this link, Habecker’s asserted injury cannot be

said to be fairly traceable to the defendants’ actions, and does not give rise to

standing to pursue his claims.

B

Habecker argues that he was injured because he was coerced into reciting

the Pledge in contravention of his conscience and beliefs. In advancing this

contention, Habecker concedes that he was not actually forced to recite the

Pledge, but argues that he was effectively required to do so because he feared

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retribution from voters and public identification as a religious “outsider.” We

conclude that the pressure Habecker experienced did not amount to a requirement

that he recite the Pledge, and does not rise to the level of an injury in fact.

An actual government requirement that an individual make statements

contrary to his religious beliefs is clearly an injury in fact. See Torcaso v.

Watkins, 367 U.S. 488, 495-96 (1961) (overturning a state statute conditioning

public employment on a religious oath). Social pressure to participate in a

religious exercise, however, has been treated as an injury in fact only in a public

school context. In that context, the Court has held that such pressure is

functionally equivalent to a government requirement, due to the unique

impressionability of schoolchildren combined with the strong pressure they feel to

attend even non-mandatory school activities. See Santa Fe Indep. Sch. Dist. v.

Doe, 530 U.S. 290, 311-12 (2000); Lee v. Weisman, 505 U.S. 577, 594 (1992)

(“The injury caused by the government’s action . . . is that the State, in a school

setting, in effect required participation in a religious exercise.”); Valley Forge

Christian Coll. v. Americans United for Separation of Church and State, 454 U.S.

464, 487 n.22 (1982) (explaining that standing existed in prior Establishment

Clause cases “because impressionable schoolchildren were subjected to

unwelcome religious exercises or were forced to assume special burdens to avoid

them”).

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 Habecker contends that, although an adult, he was susceptible to social

pressure because of his status as an elected representative subject to recall. Thus,

he urges us to adopt the reasoning applied in a public school context. In the cases

cited above, the student-plaintiffs experienced religious coercion at some of

“life’s most significant occasions.” Lee, 505 U.S. at 595. The Court concluded

that the significant nature of these occasions made them effectively mandatory,

because no student should be expected to make the choice not to attend. Santa

Fe, 530 U.S. at 311-12 (attendance at football games); Lee, 505 U.S. at 595

(attendance at graduation).

In contrast, Habecker’s attendance at Board of Trustees meetings was the

result of a voluntary decision to seek and serve in public office. Those who stand

for public office voluntarily subject themselves to public scrutiny. In the only

Supreme Court case involving an elected official challenging a religious utterance

at sessions of a public body, the Court recognized no special pressures on the

legislator-plaintiff, holding that he was “an adult, presumably not readily

susceptible to ‘religious indoctrination’ or peer pressure.” Marsh v. Chambers,

463 U.S. 783, 792 (1983) (citations omitted).

Although we do not doubt that Habecker felt strong pressure to recite the

Pledge along with the rest of the Board, his attendance at Board meetings as a

Trustee is not analogous to student attendance at important school functions.

Defendants did not impose a de facto requirement that he recite the Pledge.

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Accordingly, Habecker’s claimed injury of coercion is not a cognizable injury in

fact and does not create the requisite standing to pursue the present claims.

C

Finally, Habecker alleges that he was harmed by merely being subjected to

the religious phrase “under God”—a phrase with which he disagrees. Habecker

analogizes his situation to that of Ernest Chambers, the plaintiff in Marsh, a

legislator who challenged the Nebraska legislature’s practice of opening its daily

sessions with a prayer. See 463 U.S. at 784-85. In essence, Habecker reasons

that because Chambers’ standing was apparently based in part upon daily

exposure to prayer, he too has standing based on his exposure to the Pledge

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during Board meetings. 9 We need not decide whether Habecker is correct,

because we hold that any controversy arising from such an injury is moot.

As Habecker is no longer a member of the Board, he is no longer required

to attend biweekly meetings and listen to the Pledge. He also does not claim any

continuing injury that flows from his past exposure to the Pledge. Any

controversy arising from his attendance at meetings in his former role as Trustee

has therefore ceased to exist. Seeking to overcome this obvious deficit, Habecker

argues that his claims are not moot, because he is entitled to attend Board

meetings as a member of the public and would be subjected to the Pledge if he did

9
In upholding Chambers’ standing to sue “as a member of the legislature
and as a taxpayer whose taxes are used to fund the chaplaincy,” id. at 787 n.4, the
Supreme Court affirmed the Eighth Circuit’s holding that Chambers had standing
in part because he was directly confronted with the opening prayers. The Court
cited the following explanation from the Eighth Circuit opinion:

[Besides injury as a taxpayer], Chambers properly asserts
particularized injury in that, as a member of the legislature, he
squarely confronts the prayer program on a daily basis. . . .
Chambers has found some of the prayers so offensive to his values
that he has excused himself on occasions during the prayers.

Chambers v. Marsh, 675 F.2d 228, 231 & n.5 (8th Cir. 1982).
Although the Supreme Court has never elaborated on this source of
standing, the Court has often recognized standing where a plaintiff has been
directly exposed to a religious symbol displayed by a government entity. E.g.,
Van Orden v. Perry, 545 U.S. 677 (2005) (reaching the merits in a challenge to a
Ten Commandments display by a plaintiff who regularly encountered the
display); see also O’Connor v. Washburn Univ., 416 F.3d 1216, 1223 (10th Cir.
2005) (“[a]llegations of personal contact with a state-sponsored image” can
constitute an injury in fact); Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494,
497 (5th Cir. 2007) (standing exists if plaintiffs “were exposed to, and may thus
claim to have been injured by, invocations given” at school board meetings).

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so. As Habecker admits, however, he did not make this claim of continuing

controversy before the district court.

We do not typically decide issues “not passed upon below.” Singleton v.

Wulff, 428 U.S. 106, 120 (1976). This rule is “essential in order that parties may

have the opportunity to offer all the evidence they believe relevant to the issues

. . . [and] in order that litigants may not be surprised on appeal by final decision

there of issues upon which they have had no opportunity to introduce evidence.”

Id. (quoting Hormel v. Helvering, 312 U.S. 552, 556 (1941)). We have

“discretion to make exceptions [to this rule] in extraordinary circumstances,”

Shoels v. Klebold, 375 F.3d 1054, 1062 (10th Cir. 2004), but will do so only

when “the issues involved are questions of law, the proper resolution of which are

beyond reasonable doubt, and the failure to address the issues would result in a

miscarriage of justice,” Petrini v. Howard, 918 F.2d 1482, 1483 n.4 (10th Cir.

1990) (citation omitted).

We decline to exercise our discretion to declare this an extraordinary

circumstance under Shoels. Whether Habecker has standing based on having to

listen to the words “under God” may well be a question of law. Proper resolution

of that question is anything but settled, however, as it is one of first impression in

our circuit. How then could a litigant claim that there can be no doubt of its

proper resolution, let alone attempt to lay a solid claim of miscarriage of justice,

on such roily water? Because we decline to consider Habecker’s newly raised

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claim of continuing injury, it follows that any controversy arising under this

theory is moot.

III

Because we lack jurisdiction to consider Habecker’s claims, we AFFIRM

the district court’s decision to grant summary judgment in favor of defendants and

intervenor the United States.

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