Friday, November 2, 2012
Edward A. Zelinsky (Cardozo), Putting State Courts in the Constitutional Driver’s Seat: State Taxpayer Standing After Cuno and Winn, 40 Hastings Const. L.Q. ___ (2012):
This article explores the implications of the U.S. Supreme Court’s decisions in DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn. In Cuno and Winn, the Court held that state taxpayers lacked standing in the federal courts. Because the states have more liberal taxpayer standing rules than do the federal courts, Cuno and Winn will not terminate taxpayers’ constitutional challenges to state taxes and expenditures, but will instead channel such challenges from the federal courts (where taxpayers do not have standing) to the state courts (where they do). Moreover, municipal taxpayer standing in the federal courts, which persists after Cuno and Winn, is an historic anomaly, given what is now a near-absolute bar in the federal courts on state taxpayer standing. As a result of the channeling caused by Cuno and Winn, in the future, state courts will develop a body of law under the U.S. Constitution governing state taxes and outlays. This body of law will be beyond direct Supreme Court review because of that Court’s rejection of state taxpayer standing in the federal courts. At least at the margins, and perhaps more fundamentally, state court judges will be more inclined than their federal counterparts to uphold state tax and expenditure policies against constitutional challenges. Consequently, these state-friendly cases premised on the United States Constitution, as developed by the state courts and unsupervised by the Supreme Court, will be more permissive toward state policies than would a comparable corpus of cases decided by federal judges. This result will be untidy, but potentially manageable.