# Opposition Brief — Morongo Unified School District v. Sands

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1218

## Text

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?

a —

—

=— rg mn re: aes — 6A a : ae oP .udeay ; R :
2 : : i : ae P} i = : sf i P
ie I ee 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2741%3A2. Public record. Not legal advice.