support of a particular religious group.
The City contends that this case is governed by Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752.
Plaintiffs argue that Valley Forge is not controlling and contend that Valley Forge deals only with federal taxpayer standing and not with municipal taxpayer standing. Plaintiffs contend that it is Donnelly v. Lynch, 691 F.2d 1029 (1st Cir. 1982) which controls.
There has been no contention on the part of the Plaintiffs that their taxdollars have been expended in support of either Warner's entire cable system or CASP's channel in particular. We are, therefore, at a loss as to why Plaintiffs allege that they have standing as taxpayers. A careful review of the entire Record before us shows not one shred of evidence that anything other than private monies have been used in the Warner system. As well, there is no evidence in the Record that Warner operates as anything but a private system. Therefore, Plaintiffs lack standing as taxpayers to bring this suit.
We next address the issue of whether Plaintiffs have alleged an "injury in fact." The Supreme Court has made it abundantly clear that absent a particularized injury different from that of the rights of the general citizenry to require the Government to conduct its affairs in accordance with the law a party lacks standing under Art. III. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 482, 483, 70 L. Ed. 2d 700, 102 S. Ct. 752 and cases cited therein.
Plaintiffs claim that at the time that CASP was formed, the Unitarian-Universalist Church of The North Hills applied for and was denied membership in CASP. See Cavileer Affidavit. We note that the North Hills is not within the limits of the City. As well, we note that this church is not a party to this lawsuit. Cavileer states that he is the minister of the Allegheny Center Unitarian Church. There is no allegation that the Allegheny Center Unitarian Church was denied membership in CASP.
Additionally, Houle contends that while he was the minister of the Metropolitan Community Church of Pittsburgh from 1978 to 1982, he inquired on behalf of that church as to the criteria for membership in CASP. He further contends that he was informed that the Metropolitan Community Church was ineligible for membership in CASP. See Houle affidavit.
The Record is devoid of any reference whatsoever to Samuel Lane ("Lane"). Indeed all we know of Lane is from the Complaint and Amended Complaint whereby it is stated that he is a resident and taxpayer of the City and a potential subscriber to Warner's system. He does not claim affiliation with any church or that he either sought or was denied membership in CASP. Based on the holding of Valley Forge we fail to see that Lane has either claimed or established an "injury in fact."
In Valley Forge the Plaintiffs brought suit in federal district court alleging that when the Department of Health, Education and Welfare (HEW) disposed of a tract of land on which was situated a military hospital to Valley Forge Christian College such transfer violated the Establishment Clause of the First Amendment. 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752. Plaintiffs were a nonprofit organization which characterized themselves, inter alia, as taxpayers. The Supreme Court found that Plaintiffs therein lacked standing both as taxpayers for reasons which are not relevant to the disposition of the case at hand and, as well, because they had failed to establish an "injury in fact."
The Supreme Court rejected the implication that because the Establishment Clause was in issue, that the standing requirements under Art. III were lessened. Id. at 484. The Plaintiffs in the instant lawsuit are in the same posture as the Plaintiffs in the Valley Forge: they have alleged a violation of the Constitution but they have not alleged an injury in fact.
None of the three named Plaintiffs have claimed that they approached CASP for the purpose of presenting a program of his own over CASP's channel. They have not even intimated that should they so apply, that it is their belief that such request would be denied. Giving the affidavits of Cavileer and Houle their broadest interpretation, we find that their only claims are that they have been denied membership in CASP or were told they were ineligible, respectively.
What we must not lose sight of throughout this suit is that it is Warner, not the City, who operates the cable system; that it is Warner, not the City, who gave CASP $60,000 and a channel. Plaintiffs concede that Warner is a private corporation and make no attempt to clothe Warner with the garment of state action. In fact, Warner's system is, as well, a private corporation, which differs considerably from that of other private broadcasting corporations in that one must be a paying subscriber in order to tune into any one of Warner's 60 channels.
Because Plaintiffs lack standing as taxpayers and have not made the requisite showing of an "injury in fact" which is required by Art. III as well as the cases cited herein which have interpreted Art. III, Defendants' Motion for Summary Judgment must be GRANTED.
An appropriate Order will issue.
And now this 12th day of April, 1982, in light of the foregoing Opinion, the Motion for Summary Judgment filed by Defendants City of Pittsburgh, Mayor Richard S. Caliguiri and the City Council of the City of Pittsburgh is hereby GRANTED.
Plaintiffs' Motion for Summary Judgment being moot, is hereby DENIED.
The action against Defendant Warner Cable Corporation is dismissed for the reasons set forth in the foregoing Opinion.