Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972)

MR. JUSTICE DOUGLAS, dissenting.

The extent to which a State may constitutionally authorize a tax exemption for church-owned property used primarily for commercial purposes is a question of substantial national importance, and is squarely presented by appellants’ challenge to Fla.Stat. § 192.06(4) in this case. The Court says, however, that the controversy over the exemption awarded appellee church is moot, appellants having asked only for declaratory relief as to the unconstitutionality of § 192.06(4), which section was replaced by new legislation, effective December 31, 1971, that substantially narrowed the authorized exemption. Fla.Stat. § 196.192.

I am not as eager as is the Court to hold moot a case on appeal which is justiciable in every respect save for an intervening change in the underlying law. It does not necessarily follow that there is no longer a live controversy between these parties, even if we assume, arguendo, that the new statute satisfies all of appellants’ constitutional objections to the old one. Here appellants argue that, should their appeal prevail, the church will be liable for three years’ back property taxes, pursuant to Fla.Stat. § 193.23, now § 193.092.{1} If this is so, the controversy would appear vital despite the repeal of § 192.06(4). Cf. Powell v. McCormack, 395 U.S. 486; Bond v. Floyd, 385 U.S. 116. See also Note, 83 Harv.L.Rev. 1672 (1970).

Appellees contest this interpretation of state tax law, arguing from state court decisions that state or local taxing authorities would be estopped from asserting appellee church’s liability for back taxes.{2} Neither side, however, can point to a definitive interpretation of the precise point of state law at issue.

In my view, this situation lends itself to the Florida procedures by which this Court and other federal appellate courts may certify unresolved questions of Florida law to the State Supreme Court for decision.{3} If a declaration that § 192.06(4) was unconstitutional would result in tax liability to appellee church, then this case is surely not moot. We have the opportunity to ask the Florida Supreme Court for a definitive answer to this question. I would take advantage of it.