Don Huizenga; Nancy Powell; Jim Bendtsen v. Independent School District No. 11

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1862
___________________________
Don Huizenga; Nancy Powell; Jim Bendtsen
Plaintiffs - Appellants
v.
Independent School District No. 11; Anoka Hennepin Education Minnesota,
(American Federation of Teachers Local 7007)
Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: March 18, 2025
Filed: August 11, 2025
____________
Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
____________
BENTON, Circuit Judge
Three residents sued a school district and teachers’ union about their union
leave and reimbursement plan, alleging constitutional and statutory violations. The
district court granted summary judgment, ruling that the residents lacked Article III
standing. They appeal. Having jurisdiction under 28 U.S.C. § 1291, this court
reverses and remands.

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I.
Don Huizenga, Nancy Powell, and Jim Bendtsen were residents and taxpayers
of Independent School District No. 11 (“the district”). The collective-bargaining
representative of its teachers is Anoka-Hennepin Education Minnesota (“the
union”). Their agreement allows teachers to take, collectively, 100 days per year of
paid leave to work for the union. The union must reimburse the district’s costs for
hiring substitute teachers during union leave. The union does not reimburse the
district for the (higher) pro rata cost of salaries and benefits for teachers on union
leave.
Disagreeing with the teachers’ alleged political and campaign advocacy
during union leave, the residents sued the union under 42 U.S.C § 1983. They
alleged a violation of the Free Speech Clause. See Janus v. AFSCME, Council 31,
585 U.S. 878, 930 (2018). The residents also alleged violations of the Minnesota
Constitution and the state Public Employee Labor Relations Act.
The district court dismissed the case for lack of standing. This court reversed
and remanded. Huizenga v. Indep. Sch. Dist. No. 11, 44 F.4th 806, 812 (8th Cir.
2022) (holding, at a threshold inquiry for a motion to dismiss, that the residents
adequately alleged municipal taxpayer standing). On remand, the district court
granted summary judgment, dismissing the residents’ claims due to a lack of Article
III standing. Huizenga v. Indep. Sch. Dist. No. 11, 727 F.Supp.3d 812, 820 (D.
Minn. 2024). The residents appeal.
This court reviews both standing and grants of summary judgment de novo.
Heglund v. Aitkin Cnty., 871 F.3d 572, 577 (8th Cir. 2017) (standing); Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (summary
judgment).

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II.
“Article III restricts federal courts to the resolution of cases and
controversies.” Davis v. FEC, 554 U.S. 724, 732 (2008). The party invoking federal
jurisdiction has the burden to establish standing. Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992). Only one plaintiff needs standing. Biden v. Nebraska, 600
U.S. 477, 489 (2023). For standing, the plaintiff must have “(1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016). The injury in fact requires the plaintiff to show
“‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent.’” Id. at 339, quoting Lujan, 504 U.S. at 560.
In general, the taxpayer’s interest “in seeing that Treasury funds are spent in
accordance with the Constitution does not give rise to the kind of redressable
‘personal injury’ required for Article III standing.” Ams. United for Separation of
Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 419–20 (8th
Cir. 2007), quoting Hein v. Freedom From Religion Found., Inc., 551 U.S. 587,
599 (2007). Municipal taxpayer standing is an exception to this general rule. See
Frothingham v. Mellon, 262 U.S. 447, 486–87 (1923) (decided with Massachusetts
v. Mellon). Municipal taxpayer standing arises from the “peculiar” relationship of
taxpayers to their municipality, like that “subsisting between stockholder and private
corporation.” Id. at 487. Because municipal taxpayers have a “direct and
immediate” interest in municipal expenditures, they “may sue to enjoin an illegal
use of the moneys of a municipal corporation.” Id. at 486.
To have municipal taxpayer standing, a plaintiff (1) “must actually be a
taxpayer of the municipality that she wishes to sue” and (2) “must establish that the
municipality has spent tax revenues on the allegedly illegal action.” Huizenga, 44
F.4th at 811, quoting Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 722,
734 (7th Cir. 2020). At summary judgment, a plaintiff must support standing “with

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sufficient probative evidence that would permit a finding in the plaintiff’s favor.”
See Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005).
A.
The residents must establish they are taxpayers of the municipality they are
suing—in this case, the district. Huizenga and Bendtsen are municipal taxpayers of
the district. They belong to a particular “taxpayer base” of district residents with a
special “interest in the funds allocated to” the school district. Huizenga, 44 F.4th at
812.
Powell is no longer a municipal taxpayer of the district. After the complaint
was filed, she moved away and no longer resides in the district. She cannot maintain
claims for prospective injunctive relief. She asserts standing to seek a declaratory
judgment and retrospective relief. However, the injury central to municipal taxpayer
standing is the “misuse” of public funds by the municipality. Frothingham, 262
U.S. at 486. This “misuse,” not any increase in taxes, allows resident taxpayers to
“sue to enjoin an illegal use of the moneys” of a municipality. Id. An injunction
against future misuse remedies the injury. See D.C. Common Cause v. District of
Columbia, 858 F.2d 1, 8 (D.C. Cir. 1988) (noting that the request for restoration of
moneys “would not redress the injury caused by past misuse of public funds”).
Because Powell has left the taxpayer base, she cannot show a likelihood of future
injury necessary to establish standing for declaratory and injunctive relief. See City
of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). There is “no danger” of her taxes
“being spent in violation of the Constitution.” Smith v. Jefferson Cnty. Bd. of Sch.
Comm’rs, 641 F.3d 197, 209 (6th Cir. 2011) (en banc) (holding that plaintiff lacked
standing because he was no longer a taxpayer of the municipality), cert. denied, 565
U.S. 820 (2011). Powell does not have municipal taxpayer standing.

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B.
The other two residents—who are municipal taxpayers—must establish that
the district spends tax revenues on the activities complained of. The union argues
that the residents are unable to demonstrate a “measurable appropriation or
disbursement of school-district funds occasioned solely by the activities complained
of.” Doremus v. Bd of Educ. of Hawthorne, 342 U.S. 429, 434 (1952). The union
emphasizes that it reimburses the district for the cost of substitutes for teachers
taking union leave. It concludes that the residents have not established an injury in
fact because the union leave provision causes no incremental expenditure.
That the union reimburses the one expense occasioned by the union leave
policy is not decisive, because whether the policy increases or decreases total costs
to the district does not matter. See Smith, 641 F.3d at 215. What matters is the
“misuse” of the municipality’s funds. Frothingham, 262 U.S. at 486. The union
leave policy causes a direct expenditure of district funds, giving residents a direct
interest as taxpayers. The residents meet the injury in fact requirement for Article
III standing.
The district court relied on Doremus v. Board of Education of Borough of
Hawthorne, 342 U.S. 429, 434–35 (1952), which addressed state taxpayer standing.
The Court there held that state taxpayers have no standing based on taxpayer status
alone. The Court’s test was whether the state taxpayer “sustained or is immediately
in danger of sustaining some direct injury as a result of its enforcement.” Doremus,
342 U.S. at 434, quoting Frothingham, 262 U.S. at 488. To satisfy this “direct
injury” requirement, state taxpayers must bring a “good-faith pocketbook action.”
Doremus, 342 U.S. at 434. The circuits are split on whether the “good-faith
pocketbook action” requirement extends to municipal taxpayer standing (advocated
by the dissent). See Smith, 641 F.3d at 212–13 (summarizing the views of five other
circuit courts).

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For state taxpayer standing, this court has defined “a good-faith pocketbook
action” as “an injury to the taxpayer’s ‘direct and particular financial interest.’”
Booth v. Hvass, 302 F.3d 849, 852 (8th Cir. 2002), quoting Doremus, 342 U.S. at
434–35. But this court has not interpreted Doremus to require a taxpayer to show
an increase in her tax bill. See Minnesota Fed’n of Teachers v. Randall, 891 F.2d
1354, 1356–57 (8th Cir. 1989). Cf. D.C. Common Cause, 858 F.2d at 5 (applying
Doremus to municipal taxpayer standing but requiring only “a measurable
appropriation of public funds” for the injury requirement to be satisfied). Thus, to
the extent that the “good-faith pocketbook action” requirement applies to municipal
taxpayer standing, the requirement for taxpayers to show a “direct and particular
financial interest” applies only so far as the taxpayer’s interest is defined in
Frothingham. The Court there held that the “interest of a taxpayer of a municipality
in the application of its moneys is direct and immediate.” Frothingham, 262 U.S.
at 486. This comes from the “peculiar relation of the [municipal] taxpayer to the
[municipality], which is not without some resemblance to that subsisting between
stockholder and private corporation.” Id. at 487. “Like a shareholder of a private
corporation, a municipal taxpayer has an immediate interest in how the municipality
spends resources that reflect his contributions.” Am. Atheists, Inc. v. City of Detroit
Downtown Dev. Auth., 567 F.3d 278, 285 (6th Cir. 2009), citing Frothingham, 262
U.S. at 487. Generally, shareholders may bring derivative suits for knowing
violations of the law even when the unlawful actions profit the corporation. See
Metro Commc’n Corp. BVI v. Advanced Mobilecomm Technologies Inc., 854
A.2d 121, 131 (Del. Ch. 2004). Analogously, the unconstitutional spending of
taxpayer money is itself an injury to the municipal taxpayer. See D.C. Common
Cause, 858 F.2d at 5 (“The injury—misuse of public funds—is redressed by an order
prohibiting the expenditure.”); Cammack v. Waihee, 932 F.2d 765, 772 (9th Cir.
1991) (same). All a taxpayer—“in his capacity as a district taxpayer”—needs to
show is “a measurable appropriation or disbursement of school-district funds
occasioned solely by the activities complained of.” Doremus, 342 U.S. at 434
(second quotation); Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 3 (1947)
(first quotation); see also Pulido v. Bennett, 848 F.2d 880, 886 (8th Cir. 1988)

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(denying state and municipal taxpayer standing when “no state or local tax funds”
were used in the illegal activity).
If some expenditure is paid by local taxpayer dollars, municipal taxpayers do
not have to show an overall “depletion of the public fisc.” Smith, 641 F.3d at 215.
In municipal “expenditure cases,” plaintiffs “complain not that the government,
having spent certain money, might demand more of them, but rather that it has
misspent what it has already collected.” Id. at 214–15. “In sum, the rule that
plaintiffs must show depletion of the public fisc in order to access the courts has no
foundation, explicit or implied, in the binding decisions of the Supreme Court.” Id.
at 215.
Here, the residents argue that the leave agreement forces municipal taxpayers
to subsidize a union’s political speech in violation of their First Amendment rights.
See Janus, 585 U.S. at 920. The district makes an expenditure when it pays
substitute teachers while full-time teachers take paid union leave to engage in
political and campaign advocacy. The expenditure is solely occasioned by the
activities complained of. Even though the union reimburses the cost of the substitute
teacher, the residents have a “direct pecuniary injury” because their taxes directly
support the activities complained of. Doremus, 342 U.S. at 434. The union notes
that the residents alleged that the school district spends tax revenues “and the union
does not fully reimburse that expense.” Huizenga, 44 F.4th at 812. But the holding
there was that, at that stage in the litigation, the residents satisfied their burden to
establish standing. Here, because the residents have supported their allegation that
the school district expends taxpayer funds on the activities complained of, they
satisfy their burden at this stage as well.
The union also argues that any costs expended by the district are “ordinary
costs” associated with operating a school district. Doe v. Madison Sch. Dist. No.
321, 177 F.3d 789, 794 (9th Cir. 1999) (en banc) (denying municipal taxpayer
standing because the school district spent tax dollars on “ordinary costs of graduation
that the school would pay” with or without the unconstitutional activity). Paying a

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substitute teacher may be an “ordinary” cost of the school district. But the spending
the residents challenge is the payment of substitutes for teachers taking union leave.
Here, the challenged expenditure of funds is not ordinary because it is “occasioned
solely by the activities complained of.” Doremus, 342 U.S. at 434.
C.
The union argues that municipal taxpayer standing requires a “fairly
traceable” element, that the residents show their municipal taxpayer dollars are
uniquely implicated. See Spokeo, 578 U.S. at 338. Teachers’ salaries are paid from
the district’s General Fund. It intermingles state, federal, and local funds. Local
taxes are around 18 percent of the General Fund. The union concludes that the
residents cannot show that the expenditures from the union leave policy are
“uniquely attributable” to local tax dollars.
The union relies on Protect Our Parks, Inc. v. Chicago Park District, 971 F.3d
722, 734–36 (7th Cir. 2020). That court held that municipal taxpayers must show
that municipal tax dollars are being spent on the illegal activities. Id. at 735 (“It is
not enough to simply allege that the City is spending money; the existence of
municipal taxpayer standing depends on where the money comes from.”), approved
in Woodring v. Jackson Cnty., Ind., 986 F.3d 979, 985 (7th Cir. 2021). The
plaintiffs in Protect Our Parks failed to show that the activity complained of would
be paid for with municipal taxes, since “nearly a third of the City’s revenue comes
from nontax sources.” Protect Our Parks, 971 F.3d at 735. Other circuits disagree.
See D.C. Common Cause, 858 F.2d at 11 (finding municipal taxpayer standing even
when the only expenditures were from funds appropriated by Congress); Cammack,
932 F.2d at 771 (finding municipal taxpayer standing where plaintiffs asserted that
“state and municipal tax revenues” pay for the activity complained of).
In Frothingham, the Court analogized municipal taxpayers to the stockholders
of a corporation. Frothingham, 262 U.S. at 487. A stockholder’s legal interest in
the corporation’s management of its funds is not diluted by outside funds. See, e.g.,

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Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 523–24 (1947) (holding
that shareholders with “only a small financial interest” in the corporation may still
bring a derivative suit if they satisfy other procedural and jurisdictional
requirements). Likewise, the residents’ direct and immediate interest in school
district expenditures is not diluted where the General Fund contains municipal, state,
and federal funds. Municipal taxpayer standing allows taxpayers to challenge the
misuse of municipal funds. Intermingled funds are still “resources that reflect [the
taxpayer’s] contributions.” Am. Atheists, Inc., 567 F.3d at 285. The residents meet
any traceability requirement.1
III.
Huizenga and Bendtsen meet their burden of establishing Article III standing.
They are municipal taxpayers of the district, and they show an expenditure of district
funds occasioned solely by the activities complained of.
The district court did not address the residents’ claims on the merits. This
court is “a court of appellate review, ‘not of first view.’” MPAY Inc. v. Erie Custom
Comput. Apps., Inc., 970 F.3d 1010, 1021 (8th Cir. 2020). If a district court has not
addressed an issue, we ordinarily remand to give that court an opportunity to rule in
the first instance. Fergin v. Westrock Co., 955 F.3d 725, 730 n.3 (8th Cir. 2020).
* * * * * * *
The judgment is reversed, and the case remanded for further proceedings
consistent with this opinion.
1 The dissent adds that Huizenga and Bendtsen lack standing because funds
are not expended “on the allegedly illegal elements of the disputed practice.” Protect
Our Parks, Inc., 971 F.3d at 735. But this adds a requirement for municipal taxpayer
standing that is not found in the decisions of the Supreme Court. To the extent that
Doremus applies to municipal taxpayer standing, it requires only an expenditure of
municipal funds “occasioned solely by the activities complained of.” Doremus, 342
U.S. at 434.

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SHEPHERD, Circuit Judge, dissenting.
I respectfully dissent. In my view, the plaintiff taxpayers have failed to “show
that the [district] has actually expended funds on the allegedly illegal elements of
the disputed practice.” See Protect Our Parks, Inc. v. Chi. Park Dist., 971 F.3d 722,
735 (7th Cir. 2020) (Barrett, J.) (quoting Nichols v. City of Rehoboth Beach, 836
F.3d 275, 282 (3d Cir. 2016)), cert. denied, 141 S. Ct. 2538 (2021). Thus, I would
hold that the plaintiffs lack standing and affirm the district court.
Two theories have been advanced in this case to establish municipal taxpayer
standing. First, the plaintiffs assert they have standing because, as taxpayers, they
have been compelled to subsidize the union’s political speech and activity. They
argue that because the district rents out its teachers to the union at the rate required
to hire a substitute for each teacher rather than at the full amount of any given
teacher’s “per diem salary”—i.e., the amount, based on the teacher’s salary, that a
given teacher makes per day of teaching—the taxpayers are footing the bill for
teachers’ subsidized contributions to union activities. Alternatively, the panel
determines municipal taxpayer standing exists under a slightly different theory.
Ignoring the subsidy concept, the panel holds that the plaintiffs have standing
because the district expends funds to pay for the substitute teachers, an expense, it
argues, that is “occasioned solely by” the union activities. See ante, at 7 (citation
omitted).
The plaintiffs’ theory fails for lack of an expenditure. Because municipal
taxpayer standing requires a plaintiff to “establish that the municipality has spent tax
revenues on the allegedly illegal action,” see Huizenga v. Indep. Sch. Dist. No. 11,
44 F.4th 806, 811 (8th Cir. 2022) (citation omitted), courts have generally looked
for an expenditure or appropriation of municipal funds in order to find such standing,
see, e.g., Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 214 (6th Cir.
2011) (en banc). But see Hawley v. City of Cleveland, 773 F.2d 736, 741-42 (6th
Cir. 1985) (holding standing existed where the challenged activity involved a loss of
revenue to the municipality’s general fund). Under the subsidy theory, the district

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is essentially offering the union a discounted rate on its teachers, but it is not
expending or appropriating money for union activities.
The panel’s alternative theory is similarly inadequate. In my view, the panel’s
approach errs both in rejecting the requirement of a “direct dollars-and-cents injury,”
see Doremus v. Bd. of Educ., 342 U.S. 429, 434 (1952), and in disregarding the
disconnect between the expenditure and the allegedly illegal action.
First, this Court errs by holding that the alleged misuse of a municipality’s
funds—even without any “direct dollars-and-cents injury,” id.—is sufficient to
establish municipal taxpayer standing. See ante, at 5. Explaining this error requires
a brief history of the municipal taxpayer standing doctrine. More than 100 years
have passed since the Supreme Court noted its approval of the municipal taxpayer
standing doctrine in Frothingham. See 262 U.S. at 44; see also Crampton v.
Zabriskie, 101 U.S. 601, 609 (1879) (holding there was “no serious question” about
the rights of taxpayers to sue “to prevent an illegal disposition of the moneys of the
county or the illegal creation of a debt which they . . . may otherwise be compelled
to pay”). In the century since, the Supreme Court has barely addressed municipal
taxpayer standing. See Protect Our Parks, 971 F.3d at 733. However, it has
addressed taxpayer standing more generally, including the standing of a taxpayer to
sue a local governmental entity for enforcing an allegedly impermissible state
statute. See Doremus, 342 U.S. at 430. In Doremus, the Court determined that a
state taxpayer plaintiff must show that “the taxpayer’s action . . . is a good-faith
pocketbook action,” or, in other words, that the plaintiff has “the requisite financial
interest that is, or is threatened to be, injured by” the illegal government conduct.
Id. at 434-35. While Doremus undoubtedly applies to state taxpayer standing, see
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006), circuits are split over
whether it applies to municipal taxpayer standing, see, e.g., Protect Our Parks, 971
F.3d at 734 (applying Doremus in analyzing municipal taxpayer standing); Smith,
641 F.3d at 212-13 (discussing approaches in other circuits).

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I believe Doremus provides clarification on taxpayer standing generally and
would thus apply it in the municipal taxpayer context. As other judges have noted,
though the Supreme Court has significantly developed standing principles generally,
the municipal-taxpayer standing doctrine has “stood still.” See Smith, 641 F.3d at
221-23 (Sutton, J., concurring); see also Protect Our Parks, 971 F.3d at 733
(describing the rule as “increasingly anomalous”). In light of the “substantial body
of law vigorously enforcing the principle that injuries cognizable under Article III
cannot be ‘generalized,’ ‘undifferentiated,’ or insufficiently ‘particularized,’” see
Protect Our Parks, 971 F.3d at 733 (citation omitted), it is incongruous to turn a blind
eye to Doremus and to hold that any misuse of funds—even one that has no effect
or has a positive effect on the public fisc—provides a taxpayer with standing. This
reading is consistent with Frothingham, under which it is presumed the doctrine
applies only when the taxpayer’s interest in the municipality’s expenditure is “direct
and immediate.” See United States v. City of New York, 972 F.2d 464, 470 (2d Cir.
1992) (citation omitted); see also Frothingham, 262 U.S. at 486. It is also consistent
with Frothingham’s analogy to shareholders and a corporation, as corporate
shareholder standing is likewise limited. See, e.g., Taha v. Engstrand, 987 F.2d 505,
507 (8th Cir. 1993) (“Shareholders . . . may not bring individual actions to recover
what they consider their share of the damages suffered by the corporation.”). And
more recently, a plurality of the Supreme Court suggested municipal taxpayer
standing should not be applied too broadly. See ASARCO Inc. v. Kadish, 490 U.S.
605, 613 (1989); see also Protect Our Parks, 971 F.3d at 734. Though it “is the
[Supreme] Court’s job, not ours” to amend the municipal taxpayer standing doctrine,
see Protect Our Parks, 971 F.3d at 734, we need not ignore the Court’s standing
jurisprudence or consider this case in complete isolation. Thus, I would apply
Doremus in this case and hold that, in the absence of a “direct dollars-and-cents
injury” to the public fisc, the taxpayer plaintiffs cannot establish standing.
The panel comes to the opposite conclusion by relying on Smith, which
similarly rejected an application of Doremus to municipal taxpayer standing. See
ante, at 5-6. But even if we were to assume the Sixth Circuit’s decision in Smith is
correct, the facts in Smith are distinguishable from those at hand. In Smith,

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taxpayers challenged the school district’s decision to close its alternative school and
to instead contract with an existing private alternative school that had some religious
affiliations. 641 F.3d at 202-03. Because the school district’s decision saved the
district money, the district argued that plaintiffs did not have standing because the
taxpayers failed to establish any depletion of the municipal fisc as a result of the
governmental action. Id. at 210-11. The Sixth Circuit rejected this argument,
declined to apply Doremus in the municipal taxpayer standing context, and
determined that the taxpayers were not required to show that the government act
“shr[a]nk[] the public treasury in order to establish standing” because taxpayer
standing “will not turn on whether it was a bargain to violate the Constitution.” Id.
at 211.
Here, however, the union reimburses the school district dollar-for-dollar for
its substitute-teacher expenditures. Thus, this Court need not be concerned with the
“implementation problems” that worried the Smith majority, such as “[d]etermining
whether a municipality ‘lost’ or ‘saved’ money.” See id. 215. Here, every year, the
school district comes out even because every day a teacher is at work in each
classroom and the union directly reimburses all associated costs to hire substitutes.
The government does not “evade suit simply because it was cheaper to violate the
Constitution,” see id., it evades suit because the taxpayers have failed to show an
injury, cf. Valley Forge Christian Coll. v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 482 (1982) (“Art[icle] III requirements of standing are not
satisfied by ‘the abstract injury in nonobservance of the Constitution asserted
by . . . citizens.” (alteration in original)).
Even if I shared the majority’s view of the Doremus question, however, I
would still hold the plaintiffs lack standing because they have failed to “show that
the municipality has actually expended funds on the allegedly illegal elements of the
disputed practice.” See Protect Our Parks, 971 F.3d at 735 (citation omitted). By
the panel’s analysis, the expenditure in this case is the payment for substitute
teachers. Ante, at 7. But it is not the hiring of substitute teachers that the plaintiffs
take issue with, but rather the renting out of regular full-time teachers, at an allegedly

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subsidized price, to conduct union-related business. See Appellant Br. 30.
Presumably, that is why the plaintiffs argued this under a subsidy theory. Given that
the allegedly illegal conduct is the renting out of teachers at a subsidized rate for
union work, and taxpayer dollars are not being spent on that, the plaintiffs’ municipal
taxpayer standing argument should fail. The Seventh Circuit addressed a similar
issue in Protect Our Parks, 971 F.3d at 735. In that case, the plaintiff taxpayers took
issue with the construction of a presidential center in a park. Id. Construction of the
center was being funded by a foundation, not by the city, but the city was still “set
to spend millions of dollars to prepare the . . . site for construction.” Id. Though
preparation for construction was presumably occasioned by construction of the
center itself, the Seventh Circuit rejected the plaintiff taxpayer’s argument,
determining that because “no tax dollars will be spent to build or operate the
Center”—the allegedly illegal activity—the plaintiffs lacked standing. Id. Likewise
here, the allegedly illegal activity is not the hiring of substitutes, but the renting out
of full-time teachers for union activities during the school day. Because the district
does not expend funds on that allegedly illegal element of the disputed practice, that
is sufficient to defeat the plaintiffs’ standing. See id.
Finally, because I would deny the plaintiffs standing on the above grounds, I
would decline to reach the traceability question. See ante, at 7-8. Thus, I
respectfully dissent.
______________________________

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