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September 4, 1998

JERRY PORTA, Plaintiff,

The opinion of the court was delivered by: SIMANDLE


 SIMANDLE, District Judge:


 Charter schools in New Jersey are a recent innovation through which public money funds the availability of a public education to pupils attending specially chartered schools under the Charter School Program Act of 1995, codified at N.J.S.A. 18A:36A-1, et seq. This case presents a challenge to the operation of two charter schools which hold classes in church buildings, in space leased from those churches. The principal issue is whether the state and local public educational authorities violate the Establishment Clause of the First Amendment of the U.S. Constitution by providing funds for a public charter school in leased church space under the circumstances here presented.

 This case was tried without a jury on July 20, 1998. That hearing was a consolidation of the trial on the merits and plaintiff's motion for a preliminary injunction, as permitted under Fed. R. Civ. P. 65(a)(2). As explained below, the court finds that the plaintiff is not entitled to the relief sought. This Opinion constitutes the court's findings of fact and conclusions of law pursuant to Rule 52(a), Fed. R. Civ. P.

 Plaintiff instituted this action on May 21, 1998 by filing a Complaint with this court, seeking declaratory and injunctive relief against the following defendants: Leo F. Klagholz, Commissioner of the New Jersey Department of Education; the State of New Jersey; the Galloway Township School District; the Galloway Kindergarten Charter Schools, Inc.; and John Does # 1 to # 100. The Complaint sought both general and specific relief. In general terms, plaintiff sought to restrain the State of New Jersey and the New Jersey Department of Education from permitting the operation of charter schools out of church buildings. More specifically, plaintiff sought to enjoin the operation of Galloway Kindergarten Charter School ("GKCS") in the premises of Saint Mark and All Saints Episcopal Church ("Saint Mark"), in Galloway Township, New Jersey, where it was at that time operating. At the request of plaintiff, the court issued an Order on the same day requiring all defendants to show cause as to why a temporary injunction should not be granted.

 Plaintiff subsequently filed an Amended Complaint dated June 8, 1998, adding as defendants the Soaring Heights Charter School ("SHCS") and Jersey City School District. The relief sought was the same as in the initial Complaint, except that plaintiff also sought specifically to enjoin the operation of SHCS out of Riverside Assembly of God Church in Jersey City, New Jersey. The court amended its Order to Show Cause to include the added defendants and to postpone the hearing until July 20, 1998.

 The Amended Complaint asserts that the operation of these charter schools in church facilities violates the Establishment Clause of the First Amendment to the United States Constitution. *fn1" Count One is brought under 42 U.S.C. § 1983, alleging violations of the Due Process Clause of the Fourteenth Amendment, and seeking a declaratory judgment and preliminary and permanent restraints. (Compl. P 24.) Count Two is brought under 28 U.S.C. §§ 2201 and 2202 (which provide for the imposition of declaratory judgments and any further relief based upon a declaratory judgment) and seeks essentially the same relief. The declaratory judgment sought by plaintiff is that "operating a public charter school inside a church is a violation of the Establishment Clause of the First Amendment." The preliminary and permanent restraint sought by plaintiff is an injunction "restraining the defendants from operating or funding, as the case may be, a public charter school, including but not limited to GKCS and SHCS, inside a church in the future." (Compl. PP 27-28.)

 In lieu of an Answer, defendant the State of New Jersey filed a motion to dismiss plaintiff's Complaint. In addition to opposing the plaintiff's claims on the merits, the motion to dismiss asserted that the plaintiff's claims under 42 U.S.C. § 1983 against the State and the State's Department of Education were barred by principles of sovereign immunity under the Eleventh Amendment. The State conceded, however, that plaintiff's claims for injunctive relief could proceed against defendant Leo F. Klagholz, Commissioner of the New Jersey Department of Education, in his individual capacity.

 Defendant GKCS likewise filed a motion to dismiss in lieu of an Answer. GKCS asserted that its lease at the Saint Mark Church had ended, and that the school was no longer operating out of that facility. A certification to that effect by Master Teacher Deborah Nataloni was submitted in support of the motion. GKCS asserted that the claims against it should therefore be dismissed as moot.

 As a result of settlement discussions prior to the trial, the parties announced at the beginning of trial on July 20, 1998, that plaintiff was withdrawing his claims against defendant GKCS. (Tr. at 6.) *fn2" Both parties stipulated that they did not intend to seek attorneys fees under 42 U.S.C. § 1988, nor Rule 11 sanctions against the other. *fn3" (Id.) An Order to this effect was subsequently filed by the court on July 23, 1998, dismissing with prejudice plaintiff's complaint against GKCS. The parties likewise stipulated that the plaintiff agreed to dismiss the State of New Jersey as a defendant, leaving undisturbed the claims against Commissioner Klagholz. *fn4" (Tr. at 27-28.) An Order dismissing defendant the State of New Jersey's Motion to dismiss, and dismissing plaintiff's Complaint against the State of New Jersey in its entirety was subsequently filed by the court on July 27, 1998.

 The trial without jury then proceeded on the same day, July 20, 1998, and the court heard testimony and received other evidence. Closing arguments were heard the following week.


 A. Justiciability

 As a threshold matter, the court must determine whether this case is properly before us such that we have the power to adjudicate it. The jurisdiction of federal courts is defined and limited by Article III of the Constitution. See, e.g., Flast v. Cohen, 392 U.S. 83, 94, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). The judicial power of federal courts is constitutionally restricted to "cases" and "controversies" -- that is, "questions presented in an adversary context . . . capable of resolution through the judicial process". Id. at 95. The question of whether the plaintiff has presented a case or controversy that is justiciable by the federal courts is addressed through inquiry into issues such as whether the plaintiff is in essence seeking an advisory opinion; whether the plaintiff has standing to bring the suit, and whether the controversy is moot. Id.

 1. Prohibition of Advisory Opinions

 The "core" of Article III's limitation on federal judicial power is that federal courts may not issue advisory opinions. E. Chemerinsky, Federal Jurisdiction at 47 (Little Brown, 1994); Flast, 392 U.S. at 96-97. Accordingly, it is well established that two criteria must be met for a case to be justiciable: First, there must be "an actual dispute between adverse litigants," and second, there must be a "substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect." Chemerinsky at 48-50. It is permissible for a federal court to issue relief in the form of a declaratory judgment only so long as the above two justiciability requirements are met. See Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 264, 77 L. Ed. 730, 53 S. Ct. 345 (1933).

 As a threshold matter, it appears that part of the relief sought by plaintiff is not available from this court due to the limitations on federal court power outlined above. In addition to seeking an injunction restraining the operation of SHCS on the premises of Riverside Assembly of God Church and GKCS on the premises of Saint Mark, plaintiff's complaint also seeks a declaratory judgment that "operating a public charter school inside a Church is a violation of the Establishment Clause of the First Amendment to the U.S. Constitution." (Am. Compl. at P 27.) We have been presented with no authority (let alone binding authority) for the proposition that the operation of a public charter school in a church premises is per se a violation of the Establishment Clause. Thus it appears that plaintiff wishes for this court to issue that broad declaration as a new per se constitutional rule. It cannot be said that this question is an "actual dispute between adverse litigants," as we do not have before us all the parties who might now or at some time in the future intend to operate a public charter school from a church premises; rather, the only parties before us who are in an actual adversary relationship are the parties relating to the Soaring Heights Charter School (and perhaps -- depending upon the resolution of the mootness question, below, the remaining parties relating to GKCS). It likewise is not the case that there is a "substantial likelihood" that the issuance of such a broad declaration in favor of plaintiff would bring about some change or have some effect," since it is not even known whether, at this time, there are any other charter schools apart from SHCS operating in church premises, nor whether any person has any intention of operating a charter school out of a church building. Accordingly, the broad declaratory judgment sought by plaintiff fails to meet the well established requirements of justiciability, and this court lacks the power to consider issuing such a broad declaration. Accordingly, as a threshold matter this court may only consider the plaintiff's specific challenges to the operation of SHCS (and perhaps GKCS) in church premises, and may not consider the broader declaratory relief sought by plaintiff. To the extent, then, that plaintiff seeks a declaratory judgment that "operating a public charter school inside a church is a violation of the Establishment Clause," such relief must be denied for lack of justiciability.

 2. Standing

 The instant case is a challenge by a New Jersey citizen and taxpayer, Jerry Porta, to the application of a facially constitutional state funding statute as applied by a state administrative agency, also known as an "as applied" challenge. Although the Supreme Court has never explicitly addressed the question of state taxpayer standing to bring an "as applied" Establishment Clause challenge to a state statute in federal court, the Supreme Court has on several occasions considered the merits of such cases, without questioning the plaintiffs' standing. See Hunt v. McNair, 413 U.S. 734, 735-736, 37 L. Ed. 2d 923, 93 S. Ct. 2868 (1973); Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 744, 49 L. Ed. 2d 179, 96 S. Ct. 2337 (1976). In Hunt, the Court considered an Establishment Clause challenge by a "South Carolina taxpayer" to the use of a state educational funding Act to provide funding, through the issuance of revenue bonds, for the benefit of a Baptist-controlled college. *fn5" 413 U.S. at 735. The court reached the merits to uphold this application of that statute, without ever questioning the standing of the plaintiff. Likewise in Roemer, the court considered an Establishment Clause challenge to the application of a Maryland statute which provided for annual grants to private colleges for non-sectarian purposes, the recipients including religiously-affiliated institutions. 426 U.S. at 739. Although the court did not explicitly inquire into the plaintiffs' standing, it did note that the plaintiffs "are four individual Maryland citizens and taxpayers," and noted that two organizations, the American Civil Liberties Union and Protestants and Other Americans United for Separation of Church and State, were also plaintiffs in the suit at its outset, but were dismissed by the District Court for lack of standing. Id. at 744, and n. 8. In the context of a federal taxpayer's challenge to a federal administrative agency's application of a federal spending statute, the Court explicitly relied on these cases to support finding federal taxpayer standing. Bowen v. Kendrick, 487 U.S. 589, 618-619, 101 L. Ed. 2d 520, 108 S. Ct. 2562 (1988)(citing Hunt, 413 U.S. at 735-36; Roemer, 426 U.S. at 744). In light of the Hunt and Roemer cases, as interpreted in Bowen, plaintiff in the instant case appears to have standing to bring this "as applied" Establishment Clause challenge to the New Jersey Charter Schools Act. *fn6"

 3. Mootness

 Although a person may have standing, the court may be prevented from exercising jurisdiction if the matter is moot. See e.g., Wilmington Firefighters Local 1590 v. City of Wilmington, 824 F.2d 262, 266 (3d Cir. 1987). Courts may not render opinions in moot cases, because to do so would be to issue an advisory opinion. Therefore, when a challenged activity ceases, the court "must ask if there exists a 'subject matter upon which the judgment of the court can operate' to make a substantive determination on the merits." New Jersey Turnpike Auth. v. Jersey Cent. Power and Light, 772 F.2d 25, 30 (3d Cir. 1985). The Third Circuit has held that a case may be moot in two instances: first, when the alleged violation has ceased, and there is no reasonable expectation that it will recur, and second, where interim relief or other events completely and irrevocably eradicated the effects of the alleged violation. Id. at 31. Accordingly, a case is not moot if the dispute between the parties is "capable of repetition, yet evading review." See United States v. Antar, 38 F.3d 1348, 1356 (3d Cir. 1994).

 In the instant case, it appears that the claims against defendants Klagholz and the Galloway Township School District relating to GKCS are moot. GKCS has terminated its lease with the Saint Mark church, and will not be holding classes there in this coming school year. (Tr. 11:1 to 12:4.) In addition, the court credits the testimony of GKCS Master Teacher Deborah Nataloni and GKCS Trustee Gair Helfrich that the decision not to renew the lease was made prior to the filing of this lawsuit, due to the church's dissatisfaction with the shared space arrangement, and that the discontinuance of the leasing arrangement is not in any way the result of efforts to evade review of the arrangement by this court. (Tr. 12:5-12, and 14:19-23, and 20:8-18, and 25:19-20.) The court likewise credits the testimony of Gair Helfrich that there is no possibility of the church reconsidering its decision to discontinue the lease relationship with GKCS. (Tr. 12:2-4; 20:15-18.)

 Plaintiff asserts that the claims against defendant Klagholz and defendant Galloway Township School District are not moot because the alleged violations by these defendants are capable of repetition, yet evading review. A paradigm example of a wrong capable of repetition yet evading review is found in a case cited by plaintiff, Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). In that case the plaintiff was pregnant when she filed her complaint, which challenged the constitutionality of a state law prohibiting abortion. By the time the plaintiff's case reached the Supreme Court, she was no longer pregnant and no longer sought an abortion. The Supreme Court declined to dismiss on mootness grounds, explaining that the duration of pregnancy was inherently likely to be shorter than the time required for federal court litigation, and that the claim was therefore capable of repetition yet evading review. Id. at 125. In order for a matter to fit within this exception to the mootness doctrine, it must meet the threshold requirement of being the type of injury that is of inherently limited duration so that it is likely to always become moot before a federal court litigation is completed. See e.g., Carroll v. President & Commrs. of Princess Anne, 393 U.S. 175, 21 L. Ed. 2d 325, 89 S. Ct. 347 (1968)(challenging ten-day restraining order on a protest demonstration); Nebraska Press Assoc. v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976)(challenging prior restraint on media reporting regarding a murder trial); Moore v. Ogilvie, 394 U.S. 814, 23 L. Ed. 2d 1, 89 S. Ct. 1493 (1969)(challenge to election laws for impending election). In contrast to these cited cases, the injury alleged by plaintiff in the instant suit is not of inherently limited duration. As reflected in the testimony of GKCS Trustee Gail Helfrich, there is no ...

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