Robert I. Sherman v. State of Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1566
ROBERT I. SHERMAN,
Plaintiff-Appellant,
v.
STATE OF ILLINOIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:10-cv-03206-MPM-DGB—Michael P. McCuskey, Judge.
ARGUED NOVEMBER 2, 2011—DECIDED JUNE 4, 2012
Before EASTERBROOK, Chief Judge, and POSNER and
WOOD, Circuit Judges.
WOOD, Circuit Judge. In 2008, the Illinois General As-
sembly passed a $5 million appropriation for a grant
program to be administered by the Illinois Department
of Commerce and Economic Opportunity (the Depart-
ment). Robert Sherman, an atheist, discovered that
among the grants the Department chose to issue was
a $20,000 transfer to Friends of the Cross (Friends) for
the restoration of an enormous Latin cross known as the

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2 No. 11-1566
Bald Knob Cross. Believing that this grant violated the
First Amendment’s Establishment Clause (as applied to
the states by the Fourteenth Amendment), Sherman
filed suit in his capacity as an Illinois taxpayer under
42 U.S.C. § 1983, seeking declaratory and injunctive
relief, as well as an order of mandamus commanding
the Department to rescind the grant and to require
Friends to repay the money. Sherman alleges that it was
actually Illinois’s General Assembly that “specifically
selected” Friends for the receipt of this grant money,
and on that basis he defends his right to pursue this
case. The district court saw things differently and dis-
missed Sherman’s suit for lack of Article III standing.
The district court correctly assessed Sherman’s right to
sue. Whatever may be lurking in the background of this
appropriations legislation, the $20,000 grant to Friends
was not the result of legislative action; rather, it can be
traced at most to the initiative of a single legislator. The
ultimate pool of $5 million was in the hands of an execu-
tive agency, which was formally responsible for the
decision to hand out the $20,000 to Friends. Taxpayer
standing under these circumstances is foreclosed by
Hein v. Freedom from Religious Foundation, Inc., 551 U.S.
587 (2007). We therefore affirm the judgment of the
district court.
I
The Bald Knob Cross is a well-known tourist attraction
in Alto Pass, Illinois. At 111 feet (or, for metric purists,
33.83 meters) tall, it claims to be “the largest cross in the

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No. 11-1566 3
Western Hemisphere.” (Apparently this takes into
account the elevation of Alto Pass above sea level, which
is about 757 feet.) Although we cannot vouch for the
fact that it is indeed either the largest or tallest cross in
the state, see Lisa Gray, Church Wants 2 Giant Symbols
to Bear Witness, HOUS. CHRON., July 10, 2008, at A1, A4
(noting that the “Cross at the Crossroads” in Effingham,
Illinois, is 198 feet tall), let alone the entire Western Hemi-
sphere, see id. (listing crosses in St. Augustine, Florida,
and Orlando, Florida, that are 208 feet tall and 199 feet
tall, respectively), we do know that by 2008 it had
fallen into a state of disrepair. In order to help restore
the cross, the non-profit group Friends of the Cross was
formed to organize fundraising activities and solicit
donations.
On June 28, 2008, after applying for a share of the
$5 million appropriation mentioned earlier, Friends
secured from the Department a $20,000 grant for repairs
to the cross. The grant money was transferred to Friends
later that year. According to Sherman, it is currently
being held in a certificate of deposit. Sherman alleges
that Friends was “specifically selected by the General
Assembly” for the grant, but nothing on the face of the
bill identifies Friends and Sherman does not explain
how he knows this. It is amicus curiae Americans United
for Separation of Church and State (Americans United)
that has provided the illuminating details. According
to Americans United, under Illinois’s “member initia-
tives program,” the General Assembly annually
passes a lump-sum appropriation intended to fund the
pork-barrel projects of individual legislators. After the

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4 No. 11-1566
appropriation is passed, caucus leaders decide how to
distribute the money among individual members, who vie
for funding for their local districts. Once these legislators
receive their share of the appropriation, they function
as “de facto legislatures” (or perhaps more accurately
de facto executive agencies), each deciding for himself
or herself which local projects to fund. The favored legisla-
tor then issues a directive to the Department, which is
then supposed to distribute the grant monies as in-
structed. In reality, the general appropriation is a blunt
“means of exerting political discipline and dispensing
patronage.” “For all practical purposes, the decisions of
these four legislators [the caucus leaders] cannot be
vetoed,” Michael C. Herron & Brett A. Theodos, Govern-
ment Redistribution in the Shadow of Legislative Elections: A
Study of the Illinois Member Initiative Grants Program, 29
LEGIS. STUD. Q. 287, 288 (2004), and, accepting American
United’s allegations as true, the Department and the
executive branch consider themselves bound by the
imperatives of the individual legislators. Through this
process, Illinois State Senator Gary Forby secured a
$20,000 grant for Friends, which the Department
dutifully disbursed.
Sherman, as we said, is an atheist and an Illinois
resident and taxpayer. He discovered the grant to
Friends while browsing the Department’s website. Given
the obvious religious character of the Bald Knob Cross,
Sherman drew the conclusion that this state support of
religious iconography violated the First Amendment’s
Establishment Clause. He therefore filed suit against
various state defendants and Friends under 42 U.S.C.

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No. 11-1566 5
§ 1983, alleging that the grant has the primary effect of
advancing a particular religious sect and that it results in
an excessive entanglement between the State and the
Christian religion, in violation of the First and Fourteenth
Amendments. Sherman’s case was referred to Magistrate
Judge David G. Bernthal, who ruled that Sherman
lacked standing to sue and that his claim was moot. The
District Court for the Central District of Illinois adopted
Judge Bernthal’s Report and Recommendation and dis-
missed Sherman’s suit for lack of subject-matter juris-
diction. Sherman now appeals.
II
We review the district court’s decision to dismiss
de novo. St. John’s United Church of Christ v. City of
Chicago, 502 F.3d 616, 625 (7th Cir. 2007). Even accepting,
as we must, all of Sherman’s factual allegations as true,
id., it is plain that Sherman cannot establish standing to
sue based on his interest as a taxpayer of Illinois.
Sherman alleges that Friends was “specifically selected
by the General Assembly” for the grant, but as we have
just explained, this is not accurate as a formal matter. For
a taxpayer to have standing to challenge a government
expenditure as violating the Establishment Clause, the
Supreme Court has required that the challenged action
be “congressional action under the taxing and spending
clause.” Flast v. Cohen, 392 U.S. 83, 106 (1968). Recently,
the Court limited the reach of this holding to suits
against “specific congressional enactment[s],” expressly
excluding “discretionary Executive Branch expenditures”

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6 No. 11-1566
from taxpayer challenges in federal court. Hein v. Freedom
from Religion Found., Inc., 551 U.S. 587, 608-10 (2007) (Alito,
J.); Freedom from Religion Foundation v. Nicholson, 536
F.3d 730, 738 n.11 (7th Cir. 2008) (noting that we regard
Justice Alito’s opinion as controlling). We see no reason
not to apply these principles to state legislatures and
executive officers, when the Establishment Clause
applies by virtue of the Fourteenth Amendment.
Sherman’s allegations do not fall within the narrow
sliver of situations that survives Hein. Tellingly, Sherman
points to no specific and binding legislative action di-
recting that $20,000 be disbursed to Friends. It is not
enough to say that Friends was “specifically selected” by
the legislative leadership for the grant, as we see no
room in the Supreme Court’s decisions for the Realpolitik
approach that Sherman urges. The complaint concedes
that the General Assembly appropriated $5 million “to be
used for grants administered by the [Department]” and
then goes on simply to assert that Friends was
specifically designated to receive money by the General
Assembly. This assertion, however, is not tethered to
any legislative text. Instead, Sherman wants us to fill
the gap between the general lump-sum appropria-
tion and the specific FOTC grant. But “standing
cannot be inferred argumentatively from averments in
the pleadings”; rather, it “must affirmatively appear in
the record.” Spencer v. Kemna, 523 U.S. 1, 10-11 (1998)
(quotation marks omitted).
Even if we were free to range beyond the complaint, we
would still be compelled by Hein to reject Sherman’s

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No. 11-1566 7
standing. A patronage-based process like the one ap-
parently used in Illinois is a far cry from the type of
“specific congressional appropriation” that is analogous
to the challenged action in Flast. Hein, 551 U.S. at 603-04.
Cf. INS v. Chadha, 462 U.S. 919, 944–59 (distinguishing
between action of a single chamber of Congress and
binding legislation passed by “a single, finely wrought
and exhaustively considered, procedure”). After Hein, a
taxpayer can challenge the latter, but not the former.
In addition to his claims against the various state defen-
dants, Sherman also contends that Friends should
be compelled to return the $20,000 it received for the
restoration of the Bald Knob Cross. That too is out of
the question. After Hein, we explicitly ruled that “[t]he
only form of relief the taxpayers [have] standing to seek
[is] an injunction against the . . . disbursement of the
allegedly unconstitutional grant.” Laskowski v. Spellings,
546 F.3d 822, 828 (7th Cir. 2008). Even if he did have
standing, Sherman may seek only an injunction against
the state prohibiting the allegedly unconstitutional dis-
bursement, but it is too late for this relief. Illinois
has already disbursed the $20,000 to Friends and
Sherman has no right to insist that they pay it back.
Sherman suggests that Laskowski is distinguishable,
but we are not persuaded. Relying on the Sixth Circuit’s
decision in American Atheists v. City of Detroit, 567 F.3d
278, 288 (6th Cir. 2009), he argues that he would lack
standing only if the grant money had left Friends’s hands,
perhaps if it had already paid a contractor for cross
restoration work. Because Friends still maintains con-

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8 No. 11-1566
trol over the funds and is a party to this case, relief,
he contends, is still available. We reject this distinction.
In American Atheists, the complaining parties were mu-
nicipality taxpayers and so the Flast requirements for
standing were not implicated in the first place. Id. In
addition, we are confident that the Supreme Court, post-
Hein, has no intention of allowing a taxpayer to pursue
a claim for restitution against a private recipient of
public funds. That is what Laskowski said, 546 F.3d at
828, and we adhere to that position.
After Hein, Sherman does not have standing to
challenge the Department’s grant in the first instance,
nor can he seek to compel Friends to return the disburse-
ment. The district court correctly dismissed Sherman’s
complaint for lack of subject-matter jurisdiction, and so
we AFFIRM.
6-4-12

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