DENVER (CN) – The 10th Circuit dismissed for lack of standing a First Amendment complaint filed by a self-described atheist and former trustee of Estes Park, Co., who was ousted for refusing to stand and recite the Pledge of Allegiance.
After several citizens successfully organized a campaign to recall David Habecker from office, he filed suit against the town and members of the recall committee, claiming they violated his constitutional rights.
At Estes Park Board meeting in May 2004, Mayor John Baudeck announced a new policy of opening board meetings with the pledge and asked all present to stand and recite it.
Habecker stood with the other five board members and recited the pledge, leaving out the “under God” part, but says he felt hypocritical for doing so. At subsequent meetings, he sat silently during the pledge. Word spread about Habecker’s refusal to recite the pledge, and three Estes Park residents – including the husband of trustee Lori Jeffrey-Clark – led the charge to remove Habecker from office. He was recalled on a 903-605 vote.
Habecker added the Freedom From Religion Foundation as a co-plaintiff, and sought reinstatement and compensation for his lost salary as a trustee.
But the circuit said his claims were moot, because he “cannot show the existence of a case or controversy” since he lost the recall election. Also, he failed to show that the defendants were responsible for his defeat, as the decision was ultimately made by voters. “We simply cannot make such an inferential leap regarding the motivations of individual voters,” Judge Lucero wrote.