Seventh Circuit Says Hein Applies to State Funding Decisions

I posted about a Sixth Circuit case last week applying Hein‘s restrictive standing doctrine to dismiss an Establishment Clause challenge to a federal spending decision. Yesterday, the Seventh Circuit applied Hein to dismiss an Establishment Clause challenge to a state spending decision. An Illinois state agency had approved a $20,000 grant to a private organization, “Friends of the Cross,” to help restore the Bald Knob Cross, a local tourist attraction. Plaintiff brought suit, arguing that the grant failed the endorsement test, and claiming standing as an Illinois taxpayer.

The Seventh Circuit dismissed the challenge on standing grounds. Hein limited taxpayer standing to cases alleging specific legislative appropriations, not executive decisions, the court explained, and this limit applied to state as well as federal spending decisions. Here, the legislature had appropriated a $5 million lump sum for “member initiatives”; following Illinois tradition, a single legislator had requested that the executive direct part of the grant to the Friends, and the executive had complied.  Because the ultimate decision to fund the Friends had come from the executive branch, the court ruled, plaintiff lacked standing to challenge it under Hein. The case is Sherman v. Illinois, 2012 WL 1970592 (7th Cir. June 4, 2012).

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