20140328-G. H .Schorel-Hlavka O.W.B. to Victorian Auditor General

8/12/2019 20140328-G. H .Schorel-Hlavka O.W.B. to Victorian Auditor General

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INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

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WITHOUT PREJUDICEAuditor General 28-3-2014Level24, 35 Collins street, Melbourne, Vic [email protected]

5CC: Premier Mr Denis [email protected]

Editor Herald [email protected]

Ref: COMPLAINT(S)Re funding Albert Park racing and election - etcSir/Madam,10

I received your recent correspondence and wonder if some so to say Girl Friday runsyour office instead of you, as I view the response was absurd.

After the High Court of Australia came into place it used to, and still does at time, refer tonumerous US Supreme Court decisions as well as of other international jurisdictions. Likewise,in my 4-3-2014 correspondence I referred to constitutional issues, as obviously, as I did set out,15the States including the state of Victoria were created within s106 of the federal constitution and

bound by its embedded legal principles. Contrary to your assertion this doesnt at all makes it afederal Government issues! It simply means the States must exercise legislative powers withinthe context of the Commonwealth of Australia Constituti on Act 1900(UK).It was my perception that you would at least have some basic understanding and comprehension20of legal issues but it appears to me from your response that this is not reflected as such.I will try, as I would do with a small child try to draw your attention to basic issues. I havequoted various Authorities, but it must be understood that some jurisdictions may not have thesame constitutional framework as we have and as such we need to allow for this adjustmentalbeit the principle such as public purposeremains generally the same.25As the Authorities quoted below does indicate that not everything can be held to be for public

purposeeven if a Government were to legislate or otherwise seek to claim this. For example theHigh Court of Australia held that acquiring property for re-sale couldnt be held to be for public

purposes.http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2009/12.html?query="public%20purpose"30R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty Limited v Parramatta City Council

[2009] HCA 12 (2 April 2009)

In this case the High Court of Australia held that to acquire property for the purpose of re-sale to

Grocon was not for public purposes.35

The Albert Park racing is an event to which ordinary only paying customers have access to. Inmy view this already exclude it from being for public purposes. Whereas if the Governmentwere to develop land for a park to which any citizen can stroll through then I view this is forpublic purposesbecause it allows any member of the public to use it.40Far too often it is claimed that something is for public purposeswhen it in fact is a commercialor other private enterprise..In my view if a matter was for public purposes then it wouldnt be depending upon MrEcclestone to decide if the Grand Prix racing would be held or not. The mere fact that it is a45
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private person who ultimately decide if the racing is held in Albert Park underlines it is acommercial event for which tax payers monies should not be permitted to be used.

What we need therefore is to consider what really is for public purposes? When can we justifypublic monies to be spend?5What is the real cost to the public for having not only to pay Mr Ecclestone monies but alsohaving to convert an ordinary public place in a closed off gathering for customers paying entryand the huge cost associated with this including erecting barriers, Police and other crowd control.The building of facilities for the racing participants that later has to be removed again, etc.We also have to consider that Mr Walker I understand Chairman of the Grand Prix Racing is also10a personal friend of Mr Ecclestone and also seems to have made millions of dollars with certainfinancial issues with Mr Ecclestone, and so may not be IMPARTIAL to deal for and on behalf ofthe Victorian Government.

As a Victorian taxpayer I oppose the usage of taxpayers monies to be squandered on a Albert15Park racing event, as I view it is not for public purposes. While perhaps you may favour theAlbert Park racing for personal issues, nevertheless I view you must set aside those personalviews and act with competence and show to act with competence in an IMPARTIALmanner

and consider if in fact the Albert Park racing is for public purposesor not. Hence to assist youto get some understanding how the meaning of public purposes has been used by countless20Authorities I have quoted various below.While a government may argue that Albert Park racing is good for tourism, etc, then we mustconsider the federal context, this as external affairsis a Commonwealth legislative power.It also should be considered, as I have with the quotations below, where public servants are using

public office to make phone calls in regard of election issues, something I understand politicians25are going themselves as well as their staff which provides them additional finances not at allgenerally declared in their statements to the Victorian Electoral Commission, even so it should

be, apart of that it is in my view an misuse and abuse of public monies.Further, when a state government is competing against other states for trying to keep the racing

at Albert park by making certain concessions then I view this violates the provisions of the30Commonwealth of Australia Constituti on Act 1900 (UK) which in s101 specifically providesfor a Inter-State commission for Trade and Commerce to seek to regulate matters, as to seek toavoid a State versus State battle. I can unbderstand that your legal training may have beenconsiderable deficient as to understand the true meaning and application of the constitution inregard of the State of Victoria and anticipating this I did set out certain matters in my 4-3-201435correspondence to you. But it seems to no avail to get some intelligent response, as I wasanticipating may have resulted from your office.So, I will try to assist now with further Authorities and perhaps even you may now understandhow for :public purposes is generally understood to be applicable. And so that the Albert parkracing secret dealing between the Victorian Government with Mr Ecclestone as a commercial40

enterprise cannot constitute to be for public purposesand hence cannot attract public moniesfrom taxpayers to be used.And, again, as I tried to educate you with in my 4-3-2014 correspondence but seemed to havefailed to do so, as the funding of the Albert Park Grand Prix Racing is not an annual expenditureof a Department but is a private consortium charging for entry fees, etc, then even if it was45lawful, not that this is conceded, it would require a Appropriation Bill to be presented to theVictorian Parliament prior to the monies being taken from Consolidated Revenue Funds to be

passed by both Houses of the Victorian Parliament and given Royal Assent by the Governor ofVictoria.Victorians have a right to know how their monies is being spend, and prior to it being spend. And50I view you surely ought to have some basic legal understanding about this!
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The following quote is of a more extensive quotation shown below;http://supreme.justia.com/us/83/678/case.htmlU.S. Supreme Cour t Olcott v. The Supervisors, 83 U.S. 16 Wall . 678 678 (1872)

QUOTE5

In 1870, that is to say, subsequent to the issue of these orders, though prior to the trial of this case in

the court below, the Supreme Court of the State of Wisconsin, in the

Page 83 U. S. 680case of Whi ting v. Fond du Lac County,[Footnote 1]held this act to be void, upon the ground that the

building of a railroad, to be owned and worked by a corporation in the usual way, was not an object10in which the public were interested, and therefore that the act in question was void, for the reason

that it authorized the levy of a tax for a private and not a public purpose . The court there said:

"The question is as to the power of the legislature to raise money or to authorize it to be raised, by

taxation, for the purpose of donating it to a private corporation. We held, in Curtis v. Whipple,[Footnote2]that the legislature possessed no such power, and the conclusion in that case we think follows inevitably in15this, from the principles stated in the opinion.

END QUOTE

Seems to me the reported $50+ million dollars to stage the Albert Park Grand Prix racing atMelbourne is a payment to a private corporation that cannot be deemed to be for public20purposes.

http://supreme.justia.com/us/83/678/case.html

U.S. Supreme Cour t Olcott v. The Supervisors, 83 U.S. 16 Wall . 678 678 (1872)

QUOTE25

Page 83 U. S. 693

"The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to

do so, in order to raise funds for a mere private purpose. It cannot, in the form of a tax, take the

money of the citizen and give it to an individual, the public interest or welf are being in no way30connected with the transaction.The objects for which the money is raised by taxation must be public,

and such as subserve the common interest and wellbeing of the community required to contribute. . .

. To justify the court in arresting the proceedings and declaring the tax void, the absence of all

possiblepublic interest in the purposes for which the funds are raised must be clear and palpable; so

clear and palpable as to be perceptible by every mindAT THE FIRST BLUSH."35All these expositions of the law of the state were made by its highest court before the county orders now insuit were issued. They certainly did assert that building a railroad, whether built by the state or by acorporation created by the state for the purpose, was a matter of public concern, and that because it was a

public use, the right of eminent domain might be exerted or delegated for it, and taxation might beauthorized for its aid. It was the declared law of the state, therefore, when the bonds now in suit were40issued, that the uses of railroads, though built by private corporations, were public uses, such as warrantedthe exercise of the public right of eminent domain in their aid, and also the power of taxation.

We are not, then, concluded by a decision, made in 1870, that such public uses are not of a nature to

justify the imposition of taxes. We are at liberty to inquire what are public uses, and what

restrictions, if any, are imposed upon the state's taxing power.45It is not claimed that the Constitution of Wisconsin contains any expressdenial of power in the legislatureto authorize municipal corporations to aid in the construction of railroads, or to impose taxes for that

purpose. The entire legislative power of the state is confessedly vested in the General Assembly. Animplied inhibition only is asserted.Page 83 U. S. 69450It is insisted that, as the state cannot itself impose taxes for any other than a public use, so the

legislature cannot empower a municipal division of the state to levy and collect taxes for any other than

such a use,END QUOTE

55QUOTE

CHAPTER 17
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THE PUBLIC PURPOSE SPHERE: GOVERNMENTS

AND NONPROFITSMicroeconomics in Context (Goodwin, et al.), 1st Edition (Study Guide 2008)Chapter Summary

Having looked in detail at the private sector in the previous chapter, the text now turns to the5role of governments and nonprofit organizations in this chapter. For example, the coordinationand regulation functions of government, without which markets could not function in the way

they do is included. The chapter explores the ways in which organizations within the publicpurpose sphere address both short- and long-term aspects of peoples needs. This chapter willbe particularly important for those of you who are interested in public policy, international10economics, business, finance, health, education, the nonprofit sector, and environmentalstudies.Objectives

After reading and reviewing this chapter, you should be able to:1. Define the two primary functions of public purpose organizations.152. Describe the three basic types of public purpose organizations.3. Discuss the historical development of public purpose organizations regarding social

welfare.

4. Discuss the historical development of public purpose organizations regarding theregulation of monopolies and trade practices.20

5. Discuss the historical development of public purpose organizations regarding theregulation of financial markets.

6. Discuss the historical development of public purpose organizations regardingenvironmental protection.

7. Define the three major theories of organizational behavior: the theory of pure public25service, the theory of capture, and the theory of civic responsibility.

Key Term Review

regulation open access resourcesProgressive Era social insurance programs

means-tested programs Interstate Commerce Act30 World Trade Organization Securities Act of 1933Pigovian taxes self-regulation

public service (pure theory of) capture (theory of pure

civic responsibility (theory of) special interest)END QUOTE35

http://supreme.justia.com/us/83/678/case.htmlOlcott v. Supervisors, 16 Wall. 678 U.S. Supreme Court Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678(1872) Olcott v. The Supervisors 83 U.S. (16 Wall.) 678

ERROR TO THE CIRCUIT COURT FOR THE EASTERN DISTRICT OF WISCONSIN40QUOTE

What was considered was the uses for which taxation generally, taxation by any government, mightbe authorized, and particularly whether the construction and maintenance of a railroad, owned by a

corporation, is a matter of public concern.It was asserted (what nobody doubts), that the taxingpower of a state extends no farther than to raise money for a public use, as distinguished from45private, or to accomplish some end public in its nature, and it was decided that building a railroad, if

it be constructed and owned by a corporation, though built by authority of the state, is not a matter

in which the public has any interest, of such a nature as to warrant taxation in its aid.

Page 83 U. S. 690

For this reason it was held that the state had no power to authorize the imposition of taxes to aid in the50construction of such a railroad, and therefore that the statute giving Fond du Lac County power to

extend such aid was invalid.END QUOTE

Hansard 20-4-1897Constitution Convention Debates55
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QUOTEMr. TRENWITH: I differ from my hon. friend on this question, as I think it is desirable that we

should, if we can, put a provision in the Constitution that the lands of the Commonwealth shall always

remain the lands of the Commonwealth.We have bad ample evidence of the unwisdom of selling landsin fee simple in all of the States. We have had several very remarkable instances in the colony of5Victoria-quite recently, where from time to time land was required for public purposes.All the land has

belonged to the people of the State, and when it is sought to be acquired for public purposes, it is alwaysfound that the people have to pay very high prices for that which should never have departed from them, andwe are continually embarrassed with the difficulty. The railways are notoriously non-paving from a book-

keeping point of view, and it is altogether because of the fact that in the early days we alienated a large10 amount of the public lands, and when we required them for public purposes we had to pay private personsinordinate prices. I feel I should not be doing right in discussing this question at the length it deserves, but Ifeel bound to urge one or two reasons why it would be right to put it in this Constitution at any rate at thisstage, even if it were struck out subsequently.

END QUOTE15

http://www.downtoearth.org.in/full6.asp?foldername=20081015&filename=led&sec_id=3&sid=1

QUOTE

Travesty of public purpose20

State governments offer incredulous incentives to lure Tata

IN THE last few days Maharashtra and West Bengal witnessed two diametrically opposite developments. InMaharashtra, for the first time in the history of this country, affected farmers voted in a referendum on theupcoming Reliance special economic zone (SEZ). Initial results suggest that the majority voted against the25SEZ. In Singur, Tatas plans kept slipping into a deeper imbroglio by the day. Several state governmentslined up to lure the company as Tata seriously considered moving outeach one trying to outdo each other interms of offering incentives and freebies. Soon as West Bengal made some parts of the secret deal between

the state and the company public, Tata Motors moved the High Court obtaining a restraining order.30

Tatas lawyers argued that basically the agreement between them and the state government was a trade secret.

This means that the Nano project is private commercial venture. Ironically the state government had acquiredland for the project invoking the public purpose law. The state government and company will have to come

clean about what exactly is the Nano project. If it is a commercial venture the company must directly need

deal with the farmers. And if it is indeed a project meant to serve the public purpose, details of the35agreement must be immediately made public.

What is clear from the deal between the West Bengal government and Tata motors is that state governmentare trying to outdo each other to attract investments. This is a race right to the bottom. The moment TataMotors threatened to walk away from Singur, several state governments came forward. The lure of big-ticket40

project is such that governments are willing to forgo taxes, forcibly acquire land, give subsidized water andelectricity, give capital subsidies and put thousands of security personnel to man the project. In all this,industries are having free ride on public money. This is cheap industrialization. Where not only states are

giving fiscal subsidies, they are subsidizing the natural resourcesland, water, and energy. In a single

economic entity that India is, competition between states, by the way of subsidizing industrialization, is45neither good for economy nor is it good for environment. And it surely is not for public purpose.

END QUOTE

http://supreme.justia.com/us/83/678/case.htmlOlcott v. Supervisors, 16 Wall. 678 U.S. Supreme Court Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 67850(1872) Olcott v. The Supervisors 83 U.S. (16 Wall.) 678

ERROR TO THE CIRCUIT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

THE EASTERN DISTRICT OF WISCONSIN

QUOTE.55Therefore this ongoing misuse and abuse by State and Federal government to raise taxes and then

provide it to private companies is not at all for PUBLIC PURPOSES and therefore is amisappropriation of Consolidated Revenue funds. Also by the States using and misusing/abusing

eminent domain powers the very purpose of federation is undermined.
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One has to consider that adverse acquisition applies where due to the Albert Park racing thecomfort, etc, of Albert Park residents affected by the Grand Prix racing is denied/interferedwith. As this Grand Prix racingin my view is NOTfor public purposes then the adverseacquisition is deemed to be unconstitutional. It is not serving any public purpose but acommercial interest. As indicated above costing of a public purposeshould be made known to5the taxpayers. They have a right how their monies are being used. It should be understood thatwhen a Government extracts monies from the public then the public will spend less cashotherwise. For example, where a person contemplates to have his/her home renovated but thenthe tax burden prevents this then it means that those engaged in home renovations, the businessselling the parts, etc, all will have less income and so less work, meaning that employment10opportunities are lost. While the Government may lay claim upon the fact that it may create orhave created employment with the Governments program, such as with the Grand Prix racing,it really must be deemed a moot point, because the monies used for it actually is taken from the

public and so reduces employment elsewhere. As such, the issue of employment may not at all beas may be argued by the Government for any alleged public purpose issue, because the net15

benefits of employment, if there is any, may be not of any real value.

I have little doubt that so to say a cross city tunnel may be deemed for public purposes where itserves to reduce bottle neck traffic, etc, but I view the Albert Park racing cannot be deemed to

stand for the same.20.

It should be understood that adverse acquisitioncan eventuate without the State compulsoryacquiring the relevant property. For example if the Government were to purchase for public

purposes a property and uses it for a purpose that negatively affects the landholder of an affectedproperty. For example, a State Government may acquire a property that is then used for a25purpose that may result in such a noise that it would be unbearable for other landowners to workon their land or even to sleep. In such a case it would amount to adverse acquisition. Likewise ifdue to the acquisition of land another property owner by this might be denied access to his/her

property where an access road previous accessible is closed off. Or where for example a railwaytrack is pulled through a property which divide the property in 2 parts but no reasonable access30

from one to the other. For example a crossing may be 10 or 20 kilometres away, an unreasonablediversion of travelling at huge time and financial cost.

When considering American decisions one has to keep in mind that it originates out of a totaldifferent legal structure and so it cannot be used as such in the Commonwealth of Australia but it35is clear that the U.S.A. nullifies any FEE SIMPLE title holing rights where the U.S. SupremeCourt held in Wayne County v. Hathcock (2004) as to PROHIBIT the transfer of privatelyowned property to another private person in this case a company) for public purposesoverriding the Poletown decision, as subsequently to the Kelo v City of L ondon decision the

private company ones having obtained the property abandoned the project all together and it now40lies as private wasteland As such this also underlines that there is a danger to use acquisition for

public purposes as in the end it may work counter productive as was discovered in the Kelo vCity of Londoncase subsequent aftermath. And the Wayne County v. Hathcock (2004) clearlyrectified the gross miscarriage of justice that had been inflicted upon many since the Poletowndecision, at least for those who are affected since the Wayne County v. Hathcock (2004)45decision. The State having used its position of eminent domain to be able to achieveemployment and to have an increase of taxes and other benefits in the end in real life ended uploosing residents from the area, not getting any increase of employment, as the company scaleddown its existing production already held there, and the State therefore ended up with a reducedincome. What this underlines is that what might be perceived as being in the public interest50may not at all eventuate as such but might in fact become an injury to the public interest.


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http://www.glossary.com/reference.php?q=FeeQUOTE

Fee simpleis an estateAt common law, an estate is the totality of the legal rights, interests, entitlements andobligations attaching to property. In the context of wills and probate, it refers to the totality of the propertywhich the deceased owned or in which some interest was held. It may also refer to an estate in land.estatein5land in common lawCommon law is a type of legal system in which the law is created and/or refined bycourts on a case-by-case basis. In resolving a legal dispute, an "ideal" common law court looks to precedentof other courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoningused in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current

dispute is fundamentally distinct from all previous cases, it will resolve the matter itself, with reference10 ...common law.END QUOTE.

http://www.ij.org/index.php?option=com_content&task=view&id=1360&Itemid=165QUOTE15

County of Wayne v. Hathcock

Michigan Supreme Court Halts Eminent Domain For "Economic Development": Court States Poletown Was"Erroneous" (IJ amicus)

20Anyone who owns a home, a small business or a piece of property became a whole lot more secure in those

possessions on July 30, 2004. That was when the Michigan Supreme Court released a unanimous decision

ruling unequivocally that the government may not use eminent domain to take private property becausesomeone elsesuse of the property might be more profitable. Although many observers were hoping for agood decision, the unanimous ruling in County of Wayne v. Hathcock crossed political lines and surpassed all25expectations.

The Court unanimously overruled the infamous Poletown decision and caused a seismic shift in the legalbattle between home and business owners, on the one side, and an unholy alliance of tax-hungry bureaucratsand land-hungry developers on the other.30

Decided in 1981 by the Michigan Supreme Court, Poletown was the first major decision in the United Statesupholding the use of eminent domain for economic developmentincreasing tax revenues, jobs and thelocal economy generally.

END QUOTE35

.http://www.news.harvard.edu/gazette/2004/11.18/11-domain.htmlQUOTE

Jerold Kayden, the Frank Backus Williams Professor of Urban Planning and Design at the HGSD, talks aboutthe 'very tricky issue' of eminent domain. (Staff photo Rose Lincoln/Harvard News Office)40

Right of 'eminent domain' challenged

Weighing the benefi ts of economic development

By Ken Gewertz

Harvard News Office45

Susette Kelo is about to get her day in court.This past September, the U.S. Supreme Court agreed to hear a case brought by Kelo and her fellowhomeowners in the Fort Trumbull neighborhood of New London, Conn., challenging the right of municipal

authorities to take their houses by eminent domain.The case has attracted much attention because it is the first time such a case has come before the U.S.50Supreme Court in 50 years and because it represents an opportunity to re-examine what some regard as agrowing trend by state and municipal authorities to abuse the right of eminent domain.Jerold Kayden, the Frank Backus Williams Professor of Urban Planning and Design at the Graduate School ofDesign, has been watching this case carefully for what it may presage about the future of property rights inthe United States. On Nov. 16, he gave a talk on the subject sponsored by the Kennedy School of55Government's Taubman Center for State and Local Government.

"Can a single-family house and land be taken through eminent domain and turned over to a private

developer to generate increased jobs and tax revenue? That is in essence the case that is now coming

before the Supreme Court," Kayden said.Kayden explained that the right of eminent domain is sanctioned through implication by a phrase in the Fifth60Amendment to the U.S. Constitution. The phrase rounds out a list of protections against unfair government

interference, stating, "nor shall private property be taken for public use, without just compensation." The
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nature of just compensation is always at issue in such cases, Kayden said, with property owners asking formore and government authorities offering less. What is more significant for Kelo v. New London, however, isthe interpretation of the words, "public use."

The issue first came before the Supreme Court in 1954 in the case Berman v. Parker when a

department store owner in Washington, D.C., sued to prevent the government from demolishing his5store to make way for an urban renewal project. Berman contended that it was unconstitutional to take

his property under those circumstances, but the court ruled against him, saying that eminent domain

was justified because the project was in the interest of the community.

That case set the stage for other cases in which governments took the property of private individuals not only

for traditional public uses like highways, schools, or reservoirs, but also to replace "blighted" areas with new10 construction expected to create new jobs and bring in higher tax revenues.For example, in the late 1970s, General Motors approached Coleman Young, then mayor of Detroit,

with a request to build a Cadillac plant in a residential neighborhood known as Poletown. On the one

hand, the plant would bring jobs and generate tax revenues, but, on the other, a settled neighborhood

would be destroyed.15"It was a terrible choice. How do you even begin to decide a case like this? In the end, Young went

along with General Motors, and the Michigan Supreme Court sided with the government."

In deciding this case in 1981, the court ruled that the government's decision to take the land was acceptable.But such cases are open to interpretation, a fact that was illustrated earlier this year when the

Michigan Supreme Court reversed its 1981 decision by its ruling on a similar case, Wayne County v.20Hathcock. The court ruled that the county could not use eminent domain to take the property of people

living near an airport to clear the way for an economic development scheme known as the Pinnacle

Project. The court ruled that the land could be taken if, for example, it could be shown to be blighted,but this was not the case.

Susette Kelo and the other residents of Fort Trumbull also firmly deny that their property is blighted,25but what is at issue here is whether property can be taken simply because an alternative use of that

property would produce greater economic benefits. In the Fort Trumbull example, the city of New

London, Conn., wants to replace the residential area with offices and parking, among other things.

"It could be argued that a neighborhood of single-family houses is simply underperforming property,"

Kayden said in answer to a question. "It doesn't generate very much revenue compared with other30uses. Consequently, one might label it as blight."

Kayden would not predict how the U.S. Supreme Court would rule on this case, although he did speculateabout the many different aspects of the case that the court might weigh in making its decision. The courtmight reconsider the purpose of the Constitution's "just compensation" clause, perhaps taking into account thevalue of the individual's identity and history or the "demoralization costs" incurred when people are forced to35

give up their homes to make way for a hotel or a block of high-priced condos. Or the court may shift theburden of decision back on the state courts."It's a tricky issue," Kayden said.

END QUOTE.40

COMM ISSIONER OF TAXATI ON v WORD I NVESTMENTS [2008] HCA 55 (3 December 2008)

QUOTE1. In the Court of Appeal, Walsh JA and Asprey JA (Wallace P dissenting) agreed on the first point, but

disagreed on the second. Contrary to the Commissioner's submissions in the present appeal, Walsh JA (likeNagle J) did not construe the phrase "charitable institution" as a single composite expression, but saw it as45having two integersone to do with objects which were charitable, the second to do with "institutional"characteristics. Thus he said[34]:

"the religious objects of the company must be regarded as charitable objects.But I do not think it was an 'institution'".

Walsh JA went on to deny that every company with charitable objects was a charitable institution. The50Commissioner submitted in this appeal that the "authorities and dictionary references discussed by Nagle Jand Walsh JA suggest that for an entity to be a 'charitable institution' it must possess a public character,

purpose or object". The authorities and dictionary references do not in fact suggest this. Walsh JAsummarised an argument of counsel which assumed that the word "institution" included "a notion ofsomething which has a public character or serves a public purpose", but he rejected the argument which55made that assumption[35].If Walsh JA, despite that rejection, was intending to adopt counsel's assumption,the Commissioner did not explain why Word's purpose of advancing religiona charitable purpose having,ex hypothesi, benefit to the public, and carried out on a substantial basis financially speakingcaused it tolack a public character or not to serve a public purpose.
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END QUOTE

http://supreme.justia.com/us/83/678/case.html

U.S. Supreme Cour t Olcott v. The Supervisors, 83 U.S. 16 Wall . 678 678 (1872)

QUOTE5In 1870, that is to say, subsequent to the issue of these orders, though prior to the trial of this case in

the court below, the Supreme Court of the State of Wisconsin, in the

Page 83 U. S. 680case of Whi ting v. Fond du Lac County,[Footnote 1]held this act to be void, upon the ground that the

building of a railroad, to be owned and worked by a corporation in the usual way, was not an object in10 which the public were interested, and therefore that the act in question was void, for the reason that itauthorized the levy of a tax for a private and not a public purpose .

END QUOTE.

http://supreme.justia.com/us/83/678/case.html15U.S. Supreme Cour t Olcott v. The Supervisors, 83 U.S. 16 Wall . 678 678 (1872)

QUOTEThe question considered by the court was not one of interpretation or construction. The meaning of no

provision of the state constitution was considered or declared. What was considered was the uses for

which taxation generally, taxation by any government, might be authorized, and particularly20whether the construction and maintenance of a railroad, owned by a corporation, is a matter of

public concern.It was asserted (what nobody doubts), that the taxing power of a state extends nofarther than to raise money for a public use, as distinguished from private, or to accomplish some

end public in its nature, and it was decided that building a railroad, if it be constructed and owned

by a corporation, though built by authority of the state, is not a matter in which the public has any25interest, of such a nature as to warrant taxation in its aid.

Page 83 U. S. 690

For this reason it was held that the state had no power to authorize the imposition of taxes to aid in the

construction of such a railroad, and therefore that the statute giving Fond du Lac County power to

extend such aid was invalid.This was a determination of no local question or question of statutory or30constitutional construction.

END QUOTE.

http://supreme.justia.com/us/83/678/case.htmlQUOTE U.S. Supreme Court Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678 (1872)35

"The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so,

in order to raise funds for a mere private purpose. It cannot, in the form of a tax, take the money of the

citizen and give it to an individual, the public interest or welf are being in no way connected with the

transaction.The objects for which the money is raised by taxation must be public, and such as subserve

the common interest and wellbeing of the community required to contribute. . . . To justify the court in40arresting the proceedings and declaring the tax void, the absence of all possibl epublic interest in the

purposes for which the funds are raised must be clear and palpable; so clear and pal pable as to be

perceptible by every mindAT THE FIRST BLUSH."

END QUOTE.45TRUSTEES OF DARTMOUTH COLL EGE v. WOODWARD.February 2, 181917 U.S. 518, 4 L.Ed. 629,4 Wheat. 518, (Cite as: 17 U.S. 518) Supreme Court of the United States,QUOTE

"Public corporations" are generally esteemed such as exist for public political purposes, such as towns,

cities, parishes and counties, but strictly speaking they are such only as are founded by government for50public purposes, where whole interest belongs to the government.

END QUOTE

THE TENSION BETWEEN PRIVATE PROPERTY AND PUBLIC PURPOSE Brad Reid Professor of BusinessLaw Abilene Christian University ACU Box 29335 -- Abilene, Texas 7969955(325) 674-2768 -- [email protected]

The Court concludes: The State of Hawaii has never denied that the Constitution forbids even acompensated taking of property when executed for no reason other than confer a private benefit on a
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particular private party. A purely private taking could not withstand the scrutiny of the public userequirement; it would serve no legitimate purpose of government and would thus, be void.

END QUOTE

The Low-income Public Purpose Test (LIPPT) Updated for Version 2.0 May 25, 2001 Prepared for RRM5Working Group Cost Effectiveness Committee Prepared by TecMarket Works 165 West Netherwood Road,Suite A, 2nd Floor Oregon, WI 53575 Voice: (608) 835-8855 Fax: (608) [email protected] Research, Inc.And Megdal and AssociateQUOTE

Chapter 1: Introduction10 In December of 2000 the California Reporting Requirements Manual (RRM) WorkingGroups Cost Effectiveness Subcommittee, hired contractors to design the CaliforniaLow-income Public Purpose test. This test is to be an additional cost effectiveness test tocomplement the current arsenal of program reporting tools used to report low-incomecost effectiveness. Unlike other tests, the LIPPT is designed to have a broad view of the15costs and benefits associated with the delivery of low-income energy efficiency programsincorporating a more comprehensive list of program benefits than Californias current cost effectiveness tests. In addition, the test is structured to be both user friendly andcapable of being easily modified as new non-energy benefit research is completed. Thistest is also flexible, and allows users to turn on and off various cost and benefit values20to allow the user to examine the programs cost effectiveness from different perspectives. This report presents the overall general equations of the LIPPT and describes the

components or variables included in the equations. In developing these equations, wehave substantially complied with the request of the RRM Working Groups Cost Effectiveness Committee to use current program tracking and reporting methods, so that25the LIPPT does not present a new administrative or management burden on the fourutilities.There are three cost benefit categories defined in this report and included in the LIPPT.These are: Program costs30 Energy benefits (energy savings)Non-energy benefitsEach of these three categories are presented and described in this report, and togethermake up the LIPPT. The equations for each category are more fully defined andillustrated in the following sections.35

END QUOTE

http://www.legis.state.la.us/lss/lss.asp?doc=81933QUOTE

RS 2:60840

608. Public purpose

The acquisition of any land, or interest therein, pursuant to this Chapter, the planning, acquisition,

establishment, development, construction, improvements, maintenance, equipment, operation, regulation, and

protection of airports and air navigation facilities, including the acquisition or elimination of airport hazards,

and the exercise of any other powers herein granted to authorities and other public agencies, to be severally or45

jointly exercised, are hereby declared to be public and governmental functions, exercised for a public

purpose, and matters of public necessity. All land and other property and privileges acquired and used by oron behalf of any authority or other public agency in the manner and for the purposes enumerated in this

Chapter shall and are hereby declared to be acquired and used for public and governmental purposes and as a

matter of public necessity.50

Acts 1952, No. 531, 9.

END QUOTE

http://ag.ca.gov/ethics/accessible/misuse.php55QUOTE
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Ethics Orientation for State OfficialsMisuse of Public Funds

Public Funds may not be Used for Personal Purposes

The starting point for any analysis concerning the misuse of public funds begins with the principle that publicfunds must be expended for an authorized public purpose. An expenditure is made for a public purpose when5its purpose is to benefit the public interest rather than private individuals or private purposes.Once a public purpose is established, the expenditure must still be authorized. A public official possessesonly those powers that are conferred by law, either expressly or impliedly.

The California Constitution and a variety of state statutes make it clear that public funds may not beexpended for purposes that are primarily personal. Such expenditures are neither for a public purpose nor are10they authorized.The prohibition against using public funds for personal purposes does not mean that no personal benefit mayresult from an expenditure of public funds.For example, the payment of a public employees salary confers a personal benefit on the employee, but it is

an appropriate expenditure of public funds because it is procuring the services of the employee for public15purposes.The misuse of public funds occurs when the personal benefit conferred by a public expenditure is not merelyincidental. The term public funds is not limited to money, but includes anything of value belonging to a

public agency such as equipment, supplies, compensated staff time, and use of telephones, computers, andfax machines and other equipment and resources.20

Examples of Misuse of Public Funds

1.In People v. Dillon, a city commissioner used official government discounts to purchase items for himselfand others. This was a misuse of public funds, even though those receiving the discount paid for theitems with personal funds.25

2.In People v. Sperl, a county marshal furnished a deputy marshal and a county vehicle to transport apolitical candidate, his staff and family.

3.In People v. Battin, a county supervisor used his county compensated staff to work on his politicalcampaign for Lieutenant Governor.

4.In People v. Harby, a city official used a city car, entrusted to him for use in connection with official30business, to take a pleasure trip from Los Angeles to Great Falls, Montana and back.

Violations of the laws prohibiting misuse of public funds may subject the violator to criminal and civil sanctions.These penalties may include imprisonment for up to four years and a bar from holding office.

35

State Agency Participation in Ballot Measure Elections

There is another issue involving the misuse of public funds that does not concern the personal use of public funds.This issue concerns the use of public funds in connection with ballot measure campaigns. Following is a list of whatwell cover in this section.

Stanson v. Mott40 Endorsements and Informational Materials

Improperly Using Public Funds may Trigger Fines

Using Public Funds and Ballot Measure Campaigns

The California Supreme Court case of Stanson v. Mottis the cornerstone case concerning the expenditure of publicfunds in election campaigns.45In Stanson v. Mott, a private citizen sued the Director of the California Department of Parks and Recreation,challenging the directors expenditure of Department funds to support passage of a bond act appearing on a

statewideballot. The Supreme Court unanimously found that the director had acted unlawfully, concluding that inthe absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a

partisan position in an election campaign.50Stanson v. MottThe Supreme Court wrote in Stanson: A fundamental precept of this nations democratic electoral process is that

the government may not take sides in election contests or bestow an unfair advantage on one of several competing


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factions. A principal danger feared by our countrys founders lay in the possibility that the holders of governmentalauthority would use official power improperly to perpetuate themselves, or their allies, in office.... The Supreme Court further wrote in Stanson...The selective use of public funds in election campaigns, of course,raises the specter of just such an improper distortion of the democratic electoral process.Endorsements and Informational Materials: Subsequently, court cases have said that a government agency may5endorse a measure that is related to its expertise so long as it does not expend funds to promote its passage.Similarly, a government agency may draft legislation or a ballot measure related to its expertise, but may not

promote the passage of the measure in an election campaign.Here is Jose Lopez discussing the findings in the Stanson case in regard to the agency participation in ballot measure

elections.10

1.The StansonCourt also noted that if a state agency or department has authority to disseminate informationrelating to its activities, it may spend funds to provide the public with a fair presentation of relevantinformation.

2.The Court found that it would be contrary to the public interest to bar knowledgeable public agencies fromdisclosing relevant information to the public, so long as such disclosure is full and impartial and does not15amount to improper campaign activity.

3.To be fair, a presentation must consider all important points and provide equal treatment to both sides ofthe issue.

Improperly Using Public Funds may Trigger Fines : Improper use of public funds also may trigger fines from theFair Political Practices Commission for failing to report campaign contributions. In 1996, Sacramento County paid a20$10,000 fine to the Commission in connection with a utility bill insert explaining the effect on the county of several

ballot measures. The Commission ruled that the insert advocated a position on the ballot measures and was not aneutral and fair presentation of the facts.

Let's Review

TRUE or FALSE: Expenditures made to benefit the public are permissible.25

Answer: False. The expenditure must also be authorized to be permissible.

Evelyn is an agency secretary. She has just completed a long day and she wishes to make a few telephone callsbefore she leaves her office to invite potential contributors to the incumbent Governors campaign fundraisingdinner. Since the people she will be calling frequently have dealings with the state government on a variety of issues,may she charge these calls to the state? Yes or No.30

Answer: No. Evelyn may not charge the calls to the state as they are for personal political purposes ratherthan for a public purpose.

Let's Review

Ramon is the director of a state department. He wishes to produce informational materials to answer questions aboutthe impact of a ballot measure. Select the situation in which it is permissible to expend funds for this purpose.35

a.The materials stop short of advocating a vote for or against the measure.b.The materials do not make false statements.c.The materials present a balanced description of the favorable and unfavorable impacts of the measure.

Answer: c. The materials must present a balanced description of the favorable and unfavorable impacts ofthe measure.40

Remember These Points

Expenditures must be for a public purpose

Expenditures must be authorized

Public funds may not be expended for personal use

Information must be fairly presented45 Violations bring criminal, civil and administrative sanctions

END QUOTE


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What we have is that the constitutional rights (Victoria) of free education of students must beconsidered in addition to avoiding funding for religious education and Section 116 of the(federal) Constitution to which the Commonwealth is bound. Hence Lemon v. Kur tzman is setin a different scenario in the USA but still the line of argument may be observed, then followed5

by Muell er v. All en. But first consider Everson v. Board of Education-1947..

QUOTEEverson v. Board of Education-1947

http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1073

Everson v. Board of Education(docket #: 52) (1947) [Findlaw]

Secondary Link Everson v. Board of Education[Legal Information Institute]Argument Date 11/20/1946

Decided 02/10/1947

Supreme Court Vote 5-4

Note 1st Amend. Non-Establishment clause applied to states

Supreme Court Ruling Due Process Clause claim denied; Establishment Clauseclaim denied

10Issue Whether a board of education resolution

authorizing the reimbursement of parents for fares

paid for the transportation by public carrier ofchildren attending public and Catholic schoolsviolates the First and Fourteenth Amendments ofthe U.S. Constitution.

Majority Opinion Black, J.

Dissenting Opinion Jackson, J. (joined by Frankfurter, J.), & Rutledge, J. (joined by Frankfurter,J., Jackson, J. & Burton, J.)

Lower Court District Court for the District of Columbia (3-judge court)

Lawyers For Petitioner

Edward R. Burke and E. Hilton Jackson

For RespondentWilliam H. Speer

Opinion - Lower Court Everson v. Bd. Of Ewing Tp., 44 A.2d 333 (N.J. Err. & App, 1945)

News "Begin Case on Catholics Use of Public Funds," Chicago Daily Tribune,

Nov. 21, 1946, pg. 25

"Opposed to Funds in Parochial Aid; Looking on the Outside But SeeingOnly on the Inside," New York Times, Nov. 21, 1946, pg. 32

"Parochial School Tax Aid Backed by Court," Los Angeles Times, Feb. 11,

1947, p. 1

Edwards, William, "Highest Court Backs Tax Aid to Catholics; Splits inSchool Case Ruling, 5-4," Chicago Daily Tribune, Feb. 11, 1947, p. 1

Stokes, Dillard, "Religious, Political Issues Split High Court; Public FundAid to N.J. Parochial Schools and Hatch Act Are Upheld," The WashingtonPost, Feb. 11, 1947, p. 1

Other Chemerinsky, Erwin, CONSTITUTIONAL LAW: PRINCIPLES &POLICIES (2nd ed., 2002), sect. 12.2.6.2
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Choper, Jesse, "The Religion Clauses of the First Amendment: Reconcilingthe Conflict," 41 University of Pittsburgh Law Review 673 (1980)

Nowak, John E. & Rotunda, Ronald D., PRINCIPLES OFCONSTITUTIONAL LAW (2ND ED., 2005), sect. 17.4

Oaks, Dallin H., ed., THE WALL BETWEEN CHURCH AND STATE(1963)

Sekulow, Jay Allan, WITNESSING THEIR FAITH: RELIGIOUSINFLUENCE ON SUPREME COURT JUSTICES AND THEIR OPINIONS(2006), pp. 203-238

Tribe, Laurence, AMERICAN CONSTITUTIONAL LAW (22nd ed., 1988)sect. 14.2, 14.6

Wiecek, William M., THE BIRTH OF THE MODERN CONSTITUTION:THE UNITED STATES SUPREME COURT, 1941-1953 (Holmes Devise,vol. XII, 2006), pp. 261-280

Witte, John, Jr., RELIGION AND THE AMERICAN CONSTITUTIONALEXPERIMENT (2000), pp. 114-115, 156, 164-165, 170, 182-183, 233-234

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0330_0001_ZS.htmlSupreme Court collection

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Everson v. Board of Education of the Township of Ewing (No. 52)

133 N.J.L. 350, 44 A.2d 333, affirmed.

Syllabus Opinion

[ Black ]

Dissent

[ Jackson ]

Dissent

[ Rutledge ]

HTML versionPDF version




Syllabus10SUPREME COURT OF THE UNITED STATES

330 U.S. 1

Everson v. Board of Education of the Township of Ewing

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY15

No. 52 Argued: November 20, 1946 --- Decided: February 10, 1947

Pursuant to a New Jersey statute authorizing district boards of education to make rules and contracts for thetransportation of children to and from schools other than private schools operated for profit, a board of20education by resolution authorized the reimbursement of parents for fares paid for the transportation by publiccarrier of children attending public and Catholic schools. The Catholic schools operated under thesuperintendency of a Catholic priest and, in addition to secular education, gave religious instruction in theCatholic Faith. A district taxpayer challenged the validity under the Federal Constitution of the statute andresolution so far as they authorized reimbursement to parents for the transportation of children attending25sectarian schools. No question was raised as to whether the exclusion of private schools operated for profitdenied equal protection of the laws; nor did the record show that there were any children in the district whoattended, or would have attended but for the cost of transportation, any but public or Catholic schools.

Held:
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1. The expenditure of tax raised funds thus authorized was for a public purpose, and did not violate the dueprocess clause of theFourteenth Amendment.Pp. 5-8.2. The statute and resolution did not violate the provision of theFirst Amendment(made applicable to thestates by theFourteenth Amendment)prohibiting any "law respecting an establishment of religion." Pp. 8-18.5[p2]In a suit by a taxpayer, the New Jersey Supreme Court held that the state legislature was without power underthe state constitution to authorize reimbursement to parents of bus fares paid for transporting their children toschools other than public schools. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of Errors and Appeals

reversed, holding that neither the statute nor a resolution passed pursuant to it violated the state constitution or10 the provisions of the Federal Constitution in issue. 133 N.J.L. 350, 44 A.2d 333. On appeal of the federalquestions to this Court, affirmed,p. 18. [p3]

END QUOTEEverson v. Board of Education-1947.

QUOTELemon v. Kur tzman15403 U.S. 602

Lemon v. Kurtzman

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

20No. 89 Argued: March 3, 1971 --- Decided: June 28, 1971 [*]

Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers innonpublic schools at which the average per-pupil expenditure on secular education is below the average in

public schools. Eligible teachers must teach only courses offered in the public schools, using only materials25used in the public schools, and must agree not to teach courses in religion. A three-judge court found thatabout 25% of the State's elementary students attended nonpublic schools, about 95% of whom attendedRoman Catholic affiliated schools, and that to date about 250 teachers at Roman Catholic schools are the sole

beneficiaries under the Act. The court found that the parochial school system was "an integral part of thereligious mission of the Catholic Church," and held that the Act fostered "excessive entanglement" between30government and religion, thus violating the Establishment Clause. Pennsylvania's Nonpublic Elementary andSecondary Education Act, passed in 1968, authorizes the state Superintendent of Public Instruction to"purchase" certain "secular educational services" from nonpublic schools, directly reimbursing those schools

solely for teachers' salaries, textbooks, and instructional materials. Reimbursement is restricted to courses inspecific secular subjects, the textbooks and materials must be approved by the Superintendent, and no35payment is to be made for any course containing "any subject matter expressing religious teaching, or themorals or forms of worship of any sect." Contracts were made with schools that have more than 20% of allthe students in the State, most of which were affiliated with the Roman Catholic Church. The complaintchallenging the constitutionality of [p603]the Act alleged that the church-affiliated schools are controlled byreligious organizations, have the purpose of propagating and promoting a particular religious faith, and40conduct their operations to fulfill that purpose. A three-judge court granted the State's motion to dismiss thecomplaint for failure to state a claim for relief, finding no violation of the Establishment or Free ExerciseClause.

Held:Both statutes are unconstitutional under the Religion Clauses of theFirst Amendment,as thecumulative impact of the entire relationship arising under the statutes involves excessive entanglement45

between government and religion. Pp. 611-625.

(a) The entanglement in the Rhode Island program arises because of the religious activity and purpose of thechurch-affiliated schools, especially with respect to children of impressionable age in the primary grades, andthe dangers that a teacher under religious control and discipline poses to the separation of religious from

purely secular aspects of elementary education in such schools. These factors require continuing state50surveillance to ensure that the statutory restrictions are obeyed and theFirst Amendmentotherwiserespected. Furthermore, under the Act, the government must inspect school records to determine what part ofthe expenditures is attributable to secular education, as opposed to religious activity, in the event a nonpublicschool's expenditures per pupil exceed the comparable figures for public schools. Pp. 615-620.(b) The entanglement in the Pennsylvania program also arises from the restrictions and surveillance necessary55to ensure that teachers play a strictly nonideological role and the state supervision of nonpublic schoolaccounting procedures required to establish the cost of secular, as distinguished from religious, education. Inaddition, the Pennsylvania statute has the further defect of providing continuing financial aid directly to thechurch-related schools. Historically, governmental control and surveillance measures tend to follow cash
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grant programs, and here the government's post-audit power to inspect the financial records of church-relatedschools creates an intimate and continuing relationship between church and state. Pp. 620-622.(c) Political division along religious lines was one of the evils at which theFirst Amendmentaimed, and inthese programs, where successive and probably permanent annual appropriations that benefit relatively fewreligious groups are involved, political [p604]fragmentation and divisiveness on religious lines are likely to5

be intensified. Pp. 622-624.(d) Unlike the tax exemption for places of religious worship, upheld in Walz v. Tax Commission,397 U.S.664,which was based on a practice of 200 years, these innovative programs have self-perpetuating and self-expanding propensities which provide a warning signal against entanglement between government and

religion. Pp. 624-625.10 BURGER, C.J., delivered the opinion of the Court, in which BLACK, DOUGLAS, HARLAN, STEWART,MARSHALL (as to Nos. 569 and 570), and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurringopinion,post,p. 625, in which BLACK, J., joined, and in which MARSHALL, J. (as to Nos. 569 and 570),

joined, filing a separate statement,post,p. 642. BRENNAN, J., filed a concurring opinion,post,p. 642.WHITE, J., filed an opinion concurring in the judgment in No. 89 and dissenting in Nos. 569 and 570,post,p.15661. MARSHALL, J., took no part in the consideration or decision of No. 89. [p606]

END QUOTELemon v. Kur tzman

.QUOTEMueller v. Al len463 U.S. 38820

Mueller v. Allen

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 82-195 Argued: April 18, 1983 --- Decided: June 29, 198325

A Minnesota statute ( 290.09, subd. 22) allows state taxpayers, in computing their state income tax, todeduct expenses incurred in providing "tuition, textbooks and transportation" for their children attending anelementary or secondary school. Petitioner Minnesota taxpayers brought suit in Federal District Court againstrespondent Minnesota Commissioner of Revenue and respondent parents who had taken the tax deduction forexpenses incurred in sending their children to parochial schools, claiming that 290.09, subd. 22, violates the30Establishment Clause of theFirst Amendmentby providing financial assistance to sectarian institutions. TheDistrict Court granted summary judgment for respondents, holding that the statute is neutral on its face and inits application and does not have a primary effect of either advancing or inhibiting religion. The Court of

Appeals affirmed.Held:Section 290.09, subd. 22, does not violate the Establishment Clause, but satisfies all elements of the35"three-part" test laid down inLemon v. Kurtzman,403 U.S. 602,that must be met for such a statute to beupheld under the Clause. Pp. 392-403.(a) The tax deduction in question has the secular purpose of ensuring that the State's citizenry is welleducated, as well as of assuring the continued financial health of private schools, both sectarian andnonsectarian. Pp. 394-395.40(b) The deduction does not have the primary effect of advancing the sectarian aims of nonpublic schools. It isonly one of many deductions -- such as those for medical expenses and charitable contributions -- availableunder the Minnesota tax laws; is available for educational expenses incurred by all parents, whether theirchildren attend public schools or private sectarian or nonsectarian private schools, Committee for Public

Education v. Nyquist,413 U.S. 756,distinguished; and provides aid to parochial schools only as a result of45decisions of individual parents, rather than directly from the State to the schools themselves. The

Establishment Clause's historic purposes do not encompass the sort of attenuated financial benefit thateventually flows to parochial schools from the neutrally available tax benefit at issue. The fact that,notwithstanding 290.09, subd. 22's facial neutrality, a particular annual statistical analysis shows that thestatute's application primarily benefits religious institutions [p389]does not provide the certainty needed to50determine the statute's constitutionality. Moreover, private schools, and parents paying for their children toattend these schools, make special contributions to the areas in which the schools operate. Pp. 396-402.(c) Section 290.09, subd. 22, does not "excessively entangle" the State in religion. The fact that state officialsmust determine whether particular textbooks qualify for the tax deduction and must disallow deductions fortextbooks used in teaching religious doctrines is an insufficient basis for finding such entanglement. P. 403.55REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, andO'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN,and STEVENS, JJ., joinedpost,p. 404. [p390]

.
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http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0463_0388_ZO.html

Mueller v. Allen (No. 82-195)

676 F.2d 1195, affirmed.

Syllabus Opinion[ Rehnquist ]

Dissent[ Marshall ]




REHNQUIST, J., Opinion of the CourtSUPREME COURT OF THE UNITED STATES

5463 U.S. 388

Mueller v. Allen

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 82-195 Argued: April 18, 1983 --- Decided: June 29, 198310

JUSTICE REHNQUIST delivered the opinion of the Court.Minnesota allows taxpayers, in computing their state income tax, to deduct certain expenses incurred in

providing for the education of their children. Minn.Stat. 290.09, subd. 22 (1982).[n1]The United States

Court of Appeals for the Eighth Circuit held that the Establishment Clause of theFirst Amendment,as made15applicable to the States by theFourteenth Amendment,was not offended by this arrangement. Because thisquestion was reserved in Committee for Public Education v. Nyquist,413 U.S. 756(1973), and because[p391]of a conflict between the decision of the Court of Appeals for the Eighth Circuit and that of the Courtof Appeals for the First Circuit inRhode Island Federation of Teachers v. Norberg,630 F.2d 855 (CA11980), we granted certiorari.459 U.S. 820(1982). We now affirm.20Minnesota, like every other State, provides its citizens with free elementary and secondary schooling.Minn.Stat. 120.06, 120.72 (1982). It seems to be agreed that about 820,000 students attended this schoolsystem in the most recent school year. During the same year, approximately 91,000 elementary and secondarystudents attended some 500 privately supported schools located in Minnesota, and about 95% of thesestudents attended schools considering themselves to be sectarian.25Minnesota, by a law originally enacted in 1955 and revised in 1976 and again in 1978, permits state taxpayersto claim a deduction from gross income for certain expenses incurred in educating their children. The

deduction is limited to actual expenses incurred for the "tuition, textbooks and transportation" of dependentsattending elementary or secondary schools. A deduction may not exceed $500 per dependent in grades Kthrough 6 and $700 per dependent in grades 7 through 12. Minn.Stat. 290.09, subd. 22 (1982).[n2][p392]30Petitioners -- certain Minnesota taxpayers -- sued in the United States District Court for the District ofMinnesota claiming that 290.09, subd. 22, violated the Establishment Clause by providing financialassistance to sectarian institutions. They named as defendants, respondents here, the Commissioner of theDepartment of Revenue of Minnesota and several parents who took advantage of the tax deduction forexpenses incurred in sending their children to parochial schools. The District Court granted respondents'35motion for summary judgment, holding that the statute was "neutral on its face and in its application, and doesnot have a primary effect of either advancing or inhibiting religion." 514 F . Supp. 998, 1003 (1981). Onappeal, the Court of Appeals affirmed, concluding that the Minnesota statute substantially benefited a "broadclass of Minnesota citizens." 676 F.2d 1195, 1205 (1982).Today's case is no exception to our oft-repeated statement that the Establishment Clause presents especially40difficult questions of interpretation and application. It is easy enough to quote the few words constituting thatClause -- "Congress shall make no law respecting an establishment of [p393]religion." It is not at all easy,however, to apply this Court's various decisions construing the Clause to governmental programs of financialassistance to sectarian schools and the parents of children attending those schools. Indeed, in many of thesedecisions, we have expressly or implicitly acknowledged that "we can only dimly perceive the lines of45demarcation in this extraordinarily sensitive area of constitutional law."Lemon v. Kurtzman,403 U.S. 602,612 (1971), quoted in part with approval inNyquist,413 U.S. at 761, n. 5.One fixed principle in this field is our consistent rejection of the argument that "any program which in somemanner aids an institution with a religious affiliation" vi

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