Opposition Brief — Morongo Unified School District v. Sands

a " aed i

No. 91-477

A Up. isk CLERK |

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

MORONGO UNIFIED SCHOOL DISTRICT, et al.,

Petitioners,

VS.

JAMES SANDS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

CAROL A. SOBEL

Counsel of Record

JON W. DAVIDSON

PAUL L. HOFFMAN

MARK D. ROSENBAUM

ERWIN CHEMERINSKY

ACLU Foundation of Southern California

1616 Beverly Boulevard

Los Angeles, California 90026

(213) 977-9500

Attorneys for Respondents

Lawyers Brief Service * Appellate Brnef Printers * (213) 383-4457 * (714) 720-1510

Lua Ae

+

QUESTIONS PRESENTED

Does the United States Supreme Court have Article III

jurisdiction to grant a Petition for Certiorari in a case arising

from the decision of the highest court of a state where the

plaintiff proceeded under a state taxpayer standing statute

which creates broader standing than Article III jurisdiction

requires and the defendants have suffered no personal injury

as a direct result of the decision of the state court?

Does the inclusion of invocations and benedictions in

the form of prayer in the graduation ceremonies of public high

schools in the Morongo Unified School District violate the

Establishment Clause of the First Amendment of the United

States Constitution, particularly where the record

demonstrates that the prayers have been almost exclusively

delivered by Protestant and Catholic clergy?

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TABLE OF CONTENTS

PAGE

Se i

ty + il

gy gs) > iv

EE ee eee 2

REASONS FOR DENYING THE PETITION ........ 4

I BECAUSE BOTH THE PLAINTIFFS AND

DEFENDANTS LACK ARTICLE III

STANDING, THIS COURT LACKS

JURISDICTION TO GRANT CERTIORARI... 4

A. Plaintiffs Lack Standing Because They

Have Alleged No Particularized Personal

Injury Likely to Be Redressed By the

Relief They Have Sought .............. 4

B. The Defendants Have Asserted No

Personal Injury Sufficient to Satisfy

Standing Under Article HI] ............. 9

II

CONCLUSION

THE CALIFORNIA SUPREME COURT

CORRECTLY FOUND ON THE RECORD IN THIS

CASE THAT THE PRACTICE OF INCLUDING

DEVOTIONAL EXERCISES LED ALMOST

EXCLUSIVELY BY CHRISTIAN CLERGY AT

PUBLIC SCHOOL GRADUATIONS VIOLATES

THE ESTABLISHMENT CLAUSE

A.

The Factual Record Supports a

Determination That the Devotional

Exercises at Issue Here Violate the

Establishment Clause .................

The California Supreme Court Did Not Err

in Not Analyzing the Challenged Conduct

Under the Purpose Prong of the Lemon

MS retake tetas pt ane one ee so

CRP #2 BO FB 426 6 ew 6.2 64. 8 C: OS e682 Se eS eS

15

TABLE OF AUTHORITIES

_CASES PAGE(S)

Abington School District v. Schempp,

ee | eer eee 18

Anderson v. City of Boston,

376 Mass. 178, 380 N.Ed.2d 628 ( 1978),

appeal dismissed, 439 U.S. 1060 (1979) ..... 13

Asarco v. Kadtsh,

Oe Sa ee CE ote eae eee 4, 9-12

Bender v. Williamsport Area School District,

GTS We. DOO CTO) oh ccna en casesss 12

Blair v. Pitchess,

5 Cal. 3d 258, 486 P.2d 1242 (1971) ........ 7

Board of Education v. Allen,

Pee Oe Be COD on bi keene es 12, 14

Bowen v. Roy,

_ 476 U.S. 693 (1986) ............-.26e. 13

Coleman v. Miller,

Par Ge SER LENSE) 6 5 aa eer ene ee 9)

County of Allegheny v. American Civil

Liberties Union,

ig bP eA ee ere 18, 21

iv

Doremus v. Board of Education of the

Borough of Hawthome,

SE ee. | ea errr 5, 7-10

Edwards v. Aguillard,

Be SON OUR LEE) i 606 Kawi an denne 19-21

Engel v. Vitale,

BPe Glam SAt LIMOS) 6665 eet e seen es ance 14

Flast v. Cohen,

Pe Wis EP CIDEE) oc ces n ee eeaenes 1]

Frothingham v. Mellon,

BOR |.) 8

Grand Rapids School District v. Ball,

ie Rhee OTS CEOS 6 6 6 cots eee de tenn ewed 8

Lemon v. Kurtzman,

re Soom. Ge CADTL) onc ewicwcsaus 3, 4, 19-21

New York State Club Ass’n, Inc. v.

State of New York,

See Oe Sos BEEP LOPE: b8-4 KO eee Kw R RO 8

Sands v. Morongo Unified School District,

53 Cal. 3d 863,

Gus £.40 O07 (1991) 2.6 ase 2-4, 6, 13, 15-18

Schlesinger v. Reservists Committee

to Stop the War,

ee a eC ROTRD CN Gee weed es 8, 14

Secretary of State of Maryland v.

J.H. Munson Co.,

467 US. 947 (1984) ....... eee eee eens 10

Sherbert v. Verner,

374 US. 398 (1963) ....... eee eee eeee 13

Valley Forge Christian College,

454 USS. 464 (1982) ..... 2. eee ee eee 11-13

Van Alta v. Scott,

27 Cal. 3d 424, 613 P.2d 210 (1980) ...... 6, 7

Warth v. Seldin,

473 US. 490 (1975) «6 wee cc evesees 12

White v. Davis,

13 Cal. 3d 757, 533 P.2d 222 (1975) ........ 7

vi

STATUTES PAGE(S)

California Civil Code Section 526a ........... 6, 7

CONSTITUTIONS

United States Constitution

UE A 6 46k Ad wos KC onale eked passim

Amendment 1 .............. i, 8, 14, 17, 18

Vii

No. 91-477

In the Supreme Court

OF THE

United States

October Term, 1991

Morongo Unified School District, et al.,

Petitioners,

VS.

James Sands, et al.,

Respondents.

On Petition For A Writ of Certiorari = -

To The Supreme Court of California

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

Respondents James Sands and Jean Bertolette

submit this brief in opposition to the Petition for a Writ

of Certiorari filed in this case by the Superintendent and

board members of the Morongo Unified Schoo] District.

STATEMENT

Respondents James Sands and Jean Bertolette are

taxpayers residing in the defendant Morongo Unified

Schoo] District. [Clerk’s Transcript on Appeal (herein-

after "CT") 2] Neither plaintiff has children in the

defendant school district. [CT:346] Defendants are the

superintendent and board members of the Morongo

Unified School District ("MUSD"). They are sued in

their official capacity only. [CT:2, 3]

MUSD has included as a regular part of the public

school commencements in the district a prayer in the

form of an invocation and benediction delivered almost

exclusively by Christian clergy. [CT:181-183] Sands v.

Morongo Unified School District, 53 Cal. 3d 863, 868-869,

809 P.2d 809 (1991). At most of the district’s facilities,

school officials select or retain final approval of the

individual to lead these devotional exercises. Jd. at 868.

Although the speakers have almost uniformly been

clergy, a teacher has on a few occasions delivered one or

more of the prayers at a high-school site which permits

students to participate in the selection process of the

graduation program. Jd. at 868-869.

Students are not informed that the graduation

ceremony is voluntary. [CT:172, 232] In addition, public

school administrators and board members participate in

the ceremonies in their official capacity. Sands, 53 Cal.

3d at 869.

The decision of the California Supreme Court

applied the test established by this Court in Lemon v.

Kurtzman, 403 U.S. 602 (1971). After analyzing the

purpose of prayer, the majority of the California

Supreme Court concluded that the practice of including

sectarian devotional exercises in public school gradu-

ations violated the "effect" prong of Lemon. Sands, 53

Cal. 3d at 869, 872, 885, 916.

REASONS FOR DENYING THE PETITION

I

BECAUSE BOTH THE PLAINTIFFS AND

DEFENDANTS LACK ARTICLE Iii

STANDING, THIS COURT LACKS

JURISDICTION TO GRANT CERTIORARI

A. Plaintiffs Lack Standing Because They Have

Alleged No Particularized Personal Injury Likely

to Be Redressed By the Relief They Have Sought

In order for the Supreme Court to review any case,

all justiciability requirements derived from Article III

must be met. Asarco v. Kadish, 490 U.S. 605, 612 (1989).

This case comes before the Court as a taxpayer action

from the highest court of a state. Thus far, this Court

has been very restrictive in permitting Article III

taxpayer standing under claims virtually identical to those

presented here.

In Doremus v. Board of Education of the Borough of

Hawthome, 342 U.S. 429 (1951), this Coust zcviewed the

claim of a taxpayer plaintiff who petitioned for certiorari

from the decision of the Supreme Court of New Jersey.

This Court held in Doremus that the status of the

plaintiff in that case, who asserted standing as citizen and

taxpayer, with nothing more, did not support the

jurisdiction of this Court. Jd. at 432. The Court’s

opinion found the "complaint . . . niggardly of facts to

support a taxpayer’s grievance." Jd. at 433. Accordingly,

this Court concluded that the bare assertion of taxpayer

standing was insufficient to confer Article III jurisdiction.

Like the piaintiffs in Doremus, the individual

plaintiffs here claim standing solely as taxpayers under a

State statute which accords broad standing in state court

to challenge alleged unlawful conduct by the government

on the barest allegations of taxpayer status, irrespective

of personal interest or stake in the issue at controversy.

Sands, 53 Cal. 3d at 869. [CT:67, 69]

Under California Civil Code § 526a,' allegedly

unlawful acts of government may be challenged in the

California courts even where there exists no individual

who can demonstrate the type of personal injury

necessary to satisfy the requirements of Article III

standing in the federal courts. Van Atta v. Scott, 27 Cal.

3d 424, 447, 613 P.2d 210 (1980). California Civil Code

' California Code of Civil Procedure § 526a provides,

inter alia, as follows:

An action to obtain a judgment, restraining and

preventing any illegal expenditure or, waste of, or injury

to, the estate, funds, or other property of a [political

entity] may be maintained against any officer thereof, or

any agent, or other person, acting in its behalf, either by

a citizen resident therein, or by a corporation, who is

assessed for and is liable to pay, or, within one year

before the commencement of the action, has paid a tax

therein.

§ 526a requires no showing of any expenditures directly

linked to the challenged practice. Blair v. Pitchess, 5 Cal.

3d 258, 268, 486 P.2d 1242 (1971). Moreover, it is of no

import that individuals exist who are directly harmed by

the statute or practice and who could therefore meet the

ordinary requirements of standing. Van Atta, 27 Cal. 3d

at 447. Indeed, California courts have repeatedly

emphasized the differences between Article III and

§ 526a standing requirements. Jd. at 449-450 & n.28;

White v. Davis, 13 Cal. 3d 757, 763, 533 P.2d 222 (1975).

In accord with California law, these plaintiffs need not

and do not purport to make this a "good-faith

pocketbook action." Doremus, 342 U.S. at 434.

Although plaintiffs clearly meet the broad standing

criteria under California law, this Court has held that an

individual does not meet the standing requirement of

Article III based solely on that person’s status as a

taxpayer expressing a generalized concerned about the

actions of the government. Schlesinger v. Reservists

Committee to Stop the War, 418 U.S. 208, 215-21 (1974);

Doremus v. Board of Education, 342 U.S. 429, 433-35

(1952); Frothingham v. Mellon, 262 U.S. 447 (1923).

"(T]he special limitations that Article III of the

Constitution imposes on the jurisdiction of the federal

courts are not binding on the state courts." New York

State Club Ass’n, Inc. v. State of New York, 108 S. Ct.

2225, 2231 n.2 (1988). At the same time, however,

California "cannot define the contours of the authority of

* This Court has recognized taxpayer standing,

particularly in Establishment Clause cases, where

minimum allegations of the relationship between tax

appropriations and the alleged unconstitutional conduct

are made. See Grand Rapids School District v. Ball, 473

U.S. 373, 380 n.5 (1985). In the instant case, plaintiffs

have made no similar claims and defendants have

vigorously maintained that plaintiffs could make no such

showing. [CT:91, 110] In fact, defendants affirmatively

argued below that plaintiffs could not demonstrate

Article II] standing. [CT:110, 276]

8

the federal courts, and more particularly of this Court."

Coleman v. Miller, 307 U.S. 433, 462 (1939) (Frankfurter,

J., concurring) (footnote omitted).

The taxpayer plaintiffs in this case cannot demon-

strate standing to invoke the jurisdiction of an Article III

court. Under Doremus, therefore, the appropriate

response is to deny the Petition for Certiorari.

B. The |efendants Have Asserted No Personal Injury

Sufficient to Satisfy Standing Under Article III

If the plaintiffs lack standing under Article III, then

this Court lacks jurisdiction to review the judgment of

the California Supreme Court unless the defendants are

able to invoke independently the jurisdiction of the

Court and satisfy the requirements of Article III

standing. Asarco, 490 U.S. 605. The defendants here

cannot meet the requirements of Article III as they

assert no personal free exercise right, do not petition in

a representative capacity, and suffer no economic injury

as a result of the California Supreme Court’s decision.

In Doremus, this Court held that while a state court

may "render an opinion on a federal constitutional

question even under such circumstances that it can be

regarded only as advisory, . . . [b]ecause our own juris-

diction is cast in terms of case or controversy, we cannot

accept as the basis for review, nor as the basis for

conclusive disposition of an issue of federal law without

review, any procedure which does not constitute such."

342 US. at 434. See also Secretary of State of Maryland

v. JH. Munson Co., 467 U.S. 947, 954 & n.4 (1984).

This Court "may exercise . . . jurisdiction on

certiorari if the judgment of the state court causes direct,

specific and concrete injury to the parties who petition

for our review, where the requisites of a case or contro-

versy are also met." Asarco, 490 U.S. at 623-624. Thus,

10

the threshold requirement of standing on petition for

certiorari "focuses on the party seeking to get his

complaint before a federal court and not on the issues

he wishes to have adjudicated." Valley Forge Chnstian

College, 454 U.S. 464, 484 (1982), citing Flast v. Cohen,

392 US. 83, 99 (1968).

In Asarco, this Court found that petitioners,

defendants below, had suffered sufficient direct and

particular injury by the "defined and specific legal

obligation" imposed by the state court’s decision. 490

U.S. at 617-618. In that instance, the petitioners held

valuable mineral leases and were threatened personally

with the loss of those leases and the income they

produced as a direct result of the state court judgment.

Thus, under the facts of that case, this Court concluded

that petitioners were "faced with ‘actual or threatened

injury’ that is sufficiently ‘distinct and palpable’ to

support their standing to invoke the authority of a

federal court." Jbid., quoting Warth v. Seldin, 422 US.

490, 500-501 (1975).

Petitioners here have personally suffered no similar

injury “as a consequence" of the California Supreme

Court’s alleged constitutional error (454 U.S. at 485),

"Wont,

“distinct and palpable," “actual or threatened." Asarco,

490 U.S. at 618. They come before the Court solely in

their capacity as school officials and board members.

Article III judicial power exists only to redress direct

injury to the complaining party, even though the court’s

judgment may nonetheless benefit others. Warth, 422

USS. at 499,

Here, the petitioners have no "personal stake in the

outcome of the litigation." Bender v. Williamsport Area

School District, 475 U.S. 534, 544-545 (1986); Board of

Education v. Allen, 392 U.S. 236, 241 n.S (1968). They

12

have no “legal right, ‘the invasion of which creates

standing ....”" Valley Forge College, 454 U.S. at 487

n.24 (citation omitted). They can advance no "personal

constitutional [free exercise] right" on their own behalf.

Id., at 482. See also Sands, 53 Cal. 3d at 877; Anderson

v. City of Boston, 376 Mass. 178, 380 N.Ed.2d 628 (1978),

appeal dismissed, 439 U.S. 1060 (1979) (municipalities

lack free speech rights). Finally, they assert no

representational standing on behalf of anyone.*

Moreover, petitioners have maintair.cd throughout

this litigation that the practice of praying at public school

graduation ceremonies is wholiy voluntary and that the

> Even if petitioners did assert some representational

standing claim on behalf of the free exercise rights of the

district’s students, that claim must fail. This Court’s

decisions have recognized that "the Free Exercise Clause

is written in terms of what the government cannot do to

the individual, not in terms of what the individual can

extract from the government." Sherbert v. Verner, 374

U.S. 398, 412 (1963). See also Bowen v. Ruy, 476 US.

693 (1986).

13

ee

students could readily decide to abandon the practice.

Were this to occur, petitioners could not, consistert with

the first amendment, initiate a lawsuit to force students

to engage in compulsory prayer at school functions as

such a practice would clearly constitute a violation of the

students’ free exercise rights, as well as_ the

Establishment Clause. U.S. Constitution, Amendment I

(Establishment Clause). See also Engel v. Vitale, 370

U.S. 421 (1963). Consequently, petitioners herein are

not presented with the Hobson’s choice of having to

decide between their oath of office and violating a state

law. Cf. Board of Education v. Allen, 392 U.S. at 241 n.5.

Even though the adverse parties in this instance are

sincere in their aims, "sharply conflict[] in their interests

and views and [may be] supported by able briefs and

arguments" (Schlesinger, 418 U.S. at 225), the threshold

requirements of Article III standing to invoke the

14

Supreme Court’s jurisdiction have not been met by

either party in this case and the petition should therefore

be denied.

II

THE CALIFORNIA SUPREME COURT

CORRECTLY FOUND ON THE RECORD

IN THIS CASE THAT THE PRACTICE OF

INCLUDING DEVOTIONAL EXERCISES

LED ALMOST EXCLUSIVELY BY

CHRISTIAN CLERGY AT PUBLIC

SCHOOL GRADUATIONS VIOLATES THE

ESTABLISHMENT CLAUSE

A. The Factual Record Supports a Determination

That the Devotional Exercises at Issue Here

Violate the Establishment Clause

In the Morongo Unified School District, “apart

from a single nonreligious benediction at one high school

in one year and a religious benediction at the same

school the next year, every invocation or benediction in

this case has been delivered by either a Protestant

minister or a Catholic priest." Sands, 53 Cal. 3d at 868-

15

69. At one of the district’s two continuation schools, the

same clergyperson has delivered the invocation and

benediction every year since the school’s inception.

[CT:90]; Sands, 53 Cal. 3d at 868.

Viewing this record, and reviewing several of the

prayers which have been delivered, five members of the

California Supreme Court necessarily and properly

concluded that the prayers were explicitly religious and

that the practice of engaging in prayers at the beginning

and end of the public school graduation conveyed the

"effect" of endorsing religion. Jd. at 869, 872, 885, 916.

The majority of the California Supreme Court

recognized that, in considering a challenge to the

Establishment Clause, "it is Meal dans [the court] view

the issue from the perspective of the minority, be they

discordant, harmonious or eloquently silent, for they

compose a large segment of the symphony which is

16

America." Jd. at 915 (Arabian, J., concurring) (emphasis

in original). Viewed from this perspective, the court

concluded that the prayers at issue in this case have the

"effect" of endorsing religion.

The majority of the California Supreme Court

"recognize[d] and identif[ied] [prayer] for what it is -- a

religious practice[.]" Jd. at 917 (Arabian, J., concurring)

(emphasis in original). Accordingly, the court "deline[d]

to construe public prayer as essentially meaningless or

trivial in order to find it inoffensive to the United States

Constitution." Jd. at 873 n.4, 916-917.

A prohibition on prayer at public school graduation

ceremonies only serves to affirm the long-established

rulings of this Court, as well as the fundamental

principles which underlie the Establishment Clause.

Thus, the opinion in Sands correctly recognized that

"(t]he separation that the Establishment Clause

17

commands between religion and government manifests

and promotes respect for religious pluralism an¢ should

not be perceived as hostility or indifference to religion."

Id. at 870. As the Sands Court underscored, and as this

Court recently held, "No misperception could be more

antithetical to the values embodied in the Establishment

Clause." Jbid., quoting County of Allegheny v. American

Civil Liberties Union, 492 U.S. 573, 610 (1989).

For three decades, this Court’s opinions have

applied the requirements of the Constitution, and

particularly the Establishment Clause, most stringently in

the area of the public schools. Those decisions have

rejected the argument that "the religious practices here

may be relatively minor encroachments on the First

Amendment." Abington School District v. Schempp, 374

U.S. 203, 225 (1963). At the same time, this Court’s

LT

opinions have affirmed the role of [t]he public school

18

—

[as] at once the symbol of our democracy and the most

pervasive means of promoting our common destiny. In

no activity of the State is it more vital to keep out

divisive forces than in its schools. .. .“ Edwards v.

Aguillard, 482 U.S. 578, 584 (1987).

In the Morongo Unified School District, the

exclusively Christian prayer at public school graduations

violates this fundamental rule.

B. The California Supreme Court Did Not Err in Not

Analyzing the Challenged Conduct Under the

Purpose Prong of the Lemon Test

Petitioners urge this Court to find some funda-

mental error in the fact that the majority of the

California Supreme Court analyzed this case only under

the second and third prongs of the Lemon test with five

justices concluding that the challenged devotional

exercises violated the second prong, the "effect" test, of

this Court’s long-standing establishment clause analysis.

19

This argument by petitioners misstates United States

Supreme Court law.

As the majority of the California Supreme expressly

recognized, "[i]f a challenged governmental action fails

any of the three requirements of the Lemon test, it is

unconstitutional. (Edwards v. Aguillard, [482 U.S. 578,}

583 (1987)." 53 Cal. 3d at 872 (emphasis supplied).

Thus, although the lead opinion of the court expressed

“doubts about whether the government-sponsored

prayers at issue here pass the ‘secular purpose’ test," the

justices recognized that it was unnecessary for the court

to reach a determination as to whether the challenged

practice also violated the "purpose" prong of Lemon in

light of the conclusion of five justices that the prayers

violated the "effect" prong of Lemon. Ibid., 884-885, 916.

Even if the Court had found no violation of the

"purpose" prong, the practice is still rendered

20

unconstitutional because it violates the remaining two

prongs of Lemon. Edwards, 482 U.S. at 583; County of

Allegheny, 492 U.S. at 594.

CONCLUSION

For the foregoing reasons, the Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,

CAROL A. SOBEL

Counsel Of Record

JON W. DAVIDSON

PAUL L. HOFFMAN

MARK D. ROSENBAUM

ERWIN CHEMERINSKY

ACLU Foundation of

Southern California

1616 Beverly Boulevard

Los Angeles, California 90026

(213) 977-9500

Counsel for Respondents

October 23, 1991

21