Petition for Writ of Certiorari — Kemp v. Hill (No. 07-488)

> Cou U.wus C

wR ILE D

A ~<

-——— 07-488 007 9- 2007

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

+

THOMAS E. KEMP (Chairman, Oklahoma Tax

Commission), JERRY JOHNSON (Vice Chairman,

Oklahoma Tax Commission), CONNIE IRBY (Secretary-

Member, Oklahoma Tax Commission), BRAD HENRY

(Governor), and HOWARD HENDRICK (Director, Oklahoma

Department of Human Services |on Cross-Petition]),

Cross-Petitioners,

Vs.

HAROLD E. HILL, MARGARET R. AND WILLIAM F.

McCRIGHT, JOHN J. McQUEEN, RITA J. MOSKOWITZ,

BARBARA SANTEE, and OKLAHOMA COALITION FOR

REPRODUCTIVE CHOICE EDUCATION FUND, INC.,

Cross-Respondents.

5

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

*

OKLAHOMA GOVERNOR BRAD HENRY AND

HOWARD HENDRICK’S CONDITIONAL

CROSS-PETITION FOR WRIT OF CERTIORARI

Sd

DREW EDMONDSON RICHARD W. FREEMAN, JR.

Oklahoma Attorney General Counsel of Record

KEVIN L. MCCLURE Assistant General Counsel

Counsel of Record OKLAHOMA DEPT. OF

SHERRY TODD HUMAN SERVICES

Counsel on Appeal OFFICE OF GENERAL COUNSEL

Assistant Attorneys General Sequoyah Memorial

STATE OF OKLAHOMA Office Building

LITIGATION SECTION 2400 N. Lincoln Blvd..

313 N.E. 21st St. Room 201

Oklahoma City, OK 73105 Oklahoma City, OK 73105

(405) 521-3921 (405) 521-3638

Attorneys for Governor Attorney for Oklahoma

Brad Henry Dept. of Human Services

COCKLE LAW BRIEF PRINTING CO st 225 6465

OR CALL. COLLECT (402) 442-25.4]

QUESTION PRESENTED ON

CONDITIONAL CROSS-PETITION

Whether the Ex parte Young doctrine can be used

to grant federal courts jurisdiction over state officials

sued only in their “official capacity,” when the relief

requested would only affect the state’s taxation and

spending powers, and Congress has enacted a specific

statute, i.e., the Tax Injunction Act [28 U.S.C. § 1341],

that divests federal courts of jurisdiction on state

taxation issues?

ii

PARTIES TO THE PROCEEDING

Petitioners are Harold E. Hill, Margaret R. and

William F. McCright, John J. McQueen, Rita J. Mosko-

witz, and Barbara Santee, all plaintiff-appellants in the

proceedings below.

Respondents/Cross-Petitioners are Thomas E.

Kemp, Jerry Johnson, Connie Irby (respectively, the

Chairman, Vice-Chairman and Secretary-Member of

Oklahoma Tax Commission), and Brad Henry (Gov-

ernor of the State of Oklahoma), all defendants-

appellees in the proceedings below sued in their

official capacities.

Respondents/Cross-Petitioners, herein, are joined

by Howard H. Hendrick (Director of the Oklahoma

Department of Human Services) as a Conditional

Cross-Petitioner.

Oklahoma Religious Coalition for Reproductive

Choice Education Fund, Inc. (“ORC”), a plaintiff-

appellant in proceedings below, apparently does not

seek further review of any of the decisions issued

below with respect to its claims, which they claim are

distinct and severable from petitioner’s claims, how-

ever, Respondents herein join them to this conditional

cross-petition if this court grants Petitioners’ Petition

for Certiorari.

lil

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

No Respondent/Cross-Petitioner is a corporation.

Cross-Respondent, Oklahoma Religious Coalition for

Reproductive Choice Education Fund, Inc. is appar-

ently a non-profit organization established under

§ 501(c)\(3) of the Internal Revenue Code.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED ON CONDITIONAL

Ce FEIN ictisinaslneecatsdndeavcccorcedcnssosonss i

PARTIES TO THE PROCEEDING...................... ii

RULE 29.6 CORPORATE DISCLOSURE STATE-

RIRIER cicrrctinibacichevinsss iieieiethadl iivracunesidake taiaeiiiinits ili

PR I SITE ceric es sckeiccccisnscsresasnctsncass iv

PERRI IE BA ARO case ceciescosececcsssestevesnsess Vv

MPR IE FAAS EBV UGE LE crecccsesccccesevconcsssceseses vi

Pe eee ETT sides sbeckvesresndevaunstiionacivtetuceoies 1

IE II irate scaarncloondcacncsaaesueekvenbs 1

STATUTORY PROVISIONS INVOLVED ........... 1

STATEMENT OF THE CASE...............ccccescesseeees 2

chien talariseucwersdsnbarckedbbadsasstnivicnsaicuaietin 3

SE BR ir Dsc iin scas dincecdaciedsaarapanoomscanuuniacios 3

NE I os csbicdiniccndencpcnenadeiumasovianunsin eedenende 3

IIE faenvvn suche cise cencsansibunuiaeneecvesaviedeniaon 4

III Succes sank cbin dig tuicibewhibeasucusencenesaiaians 6

a ca alcatel 6

THE TENTH CIRCUIT’S DECISION................. 7

PETITIONERS’ AND ORC’s CLAIMG .............. 7

REASONS FOR GRANTING CONDITIONAL

EE OIE ccieracttnansnrntccvivadiveseuseeribivess 8

CEE TAITT sxccsdiintiencirdierseivipsivetsdpedecssaianeeniee 16

TABLE OF APPENDICES

Oklahoma Constitution, Article 25................... App. 1

Title 10, Oklahoma Statutes, Section 22.2....... App. 4

Title 56, Oklahoma Statutes, Section 161-

vi

TABLE OF AUTHORITIES

FEDERAL CASES:

Dows v. City of Chicago, 11 Wall. 108, 78 U.S.

pe RS” SL 5 5 b RR Sp CaN ONE 9

Fair Assessment in Real Estate Assn., Inc. v.

McNary, 454 U.S. 100, 102 S.Ct. 177, 70

eS re ge |} SURE eneeetoren mr eens w Reman 10

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.

BA BEF een MON CRE Pisccipiccccsseneceettccanititsionseds 14

Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46

BSE A Be Pictish pcacicissuindaetecirsumncacacanabdventen 12

Seminole Tribe of Florida v. Florida, 517 U.S.

GBs Te Be BONO IN ihaciciveiceeeicninneiizurinnceinteneses 10

United States v. Sprague, 282 U.S. 716 (1931)......... 12

Verizon Maryland, Inc. v. Public Service Commis-

sion of Maryland, 535 U.S. 635 (2002)........ 7, 8, 12, 13

Ex parte Young, 209 U.S. 123 (1908)................. passim

STATE STATUTES:

a ec ictaccecuwiadiechaecehae 1

i ccmnsnacatent 11

ON cs creer sisnatinicanieee passim

cau eae 3, 12

a ee 2

RU oi scactsixcaeunen 5, 10, 15

Be yO BE Giiinsvicsrreciretinrndiceneentimanepneass 7

vil

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL AMENDMENTS:

Tenth Amendment, United States Constitution....... 11

1

‘*PINIONS BELOW

The opinion of the court of appeals is reported at

478 F.3d 1236 (10th Cir. 2007) and reproduced as

Appendix A (1a-53a) in Petitioners’ Petition for Writ

of Certiorari. The unpublished opinion and order of

the district court, No. 04-CV-0028 (N.D. Okl. August

16, 2005) is reproduced as Appendix B (54a-71a) to

Petitioners’ Petition for Writ of Certiorari.

¢

JURISDICTION

The court of appeals entered judgment on March

6, 2007, and a timely-filed petition for rehearing and

rehearing en banc was denied on April 2, 2007. (See

Petitioners’ Petition for Writ of Certiorari, App. C,

72a-73a). On June 14, 2007, Justice Breyer extended

Petitioners’ time within which to file a petition for

certiorari to and including August 30, 2007. Pursuant

to Supreme Court Rule 12(5) Respondents are filing

this Response to that Petition for Certiorari and

Conditional Cross-Petition within 30 days from the

date this case was placed on the docket. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254.

¢

STATUTORY PROVISIONS INVOLVED

The Tax Injunction Act, 28 U.S.C. § 1341, pro-

vides that “[t]he district courts shal] not enjoin,

suspend or restrain the assessment, levy or collection

of any tax under State law where a plain, speedy and

2

efficient remedy may be had in the courts of such

State.” (Petitioners’ App. D, 74a).

The challenged tax scheme, 47 O.S. §§ 1104

through 1136, is reproduced in Appendix A, to Peti-

tioners’ Petition for Writ of Certiorari.

+

STATEMENT OF THE CASE

Petitioners, all Oklahoma taxpayers claiming

ownership in motor vehicles registered in the State of

Oklahoma, filed their First Amended Complaint on

August 19, 2004, complaining that Oklahoma’s motor

vehicle license plate statutes violate their Constitu-

tional rights. (Response App. pgs. 1-59). Collectively

calling themselves “Motorist,” they alleged in their

First Amended Complaint that they “interpret the

phrase ‘choice in family planning’ to mean a woman’s

freedom to choose among all available reproductive

options both before and after conception.” (Response

App. pg. 6, para. 16). They further alleged:

17. Motorist Plaintiffs wish to express

themselves in this manner because they be-

lieve a special license plate is a unique

means of promoting their views about repro-

ductive nights.

18. Motorist Plaintiffs also seek a special li-

cense plate expressing support for choice in

family planning because other motorists are

currently permitted to use special license

plates to (a) express contrary views about

3

reproductive rights, and (6) raise money for

organizations promoting those contrary views.

(Response App. pg. 6).

They brought this action pursuant to 42

U.S.C. § 1983 alleging four claims:

Claim One, alleges Oklahoma’s statutes, violate

their First and Fourteenth Amendment rights be-

cause they are “presumptively unconstitutional” in

that it grants both “the Okiahoma Legislature and

Governor unbridled discretion and lacks viewpoint

neutral standards for determining which Oklahoma

motorist will be permitted access to a State-created

speech forum” and that “every application of the

Statutory Scheme creates an impermissible risk that

viewpoint discrimination will lead to suppression of

protected expression.” (Response App. pg. 53);

Claim Two, alleges the statutes violate their First

and Fourteenth Amendment rights “because the

Oklahoma Legislature engaged in viewpoint dis-

crimination when it authorized the expression of only

certain views about reproductive rights in a State-

created speech forum” and that “|t]he Statutory

Scheme is not narrowly drawn to achieve a compel-

ling or any other governmental interest justifying the

Oklahoma Legislature’s failure to amend [the statutes]

to allow the [Oklahoma Tax Commission] to issue

Family Planning Plates.” (Response App. pg. 54);

Claim Three, alleges the statutes violate the Motor-

ists’ Due Process protection accorded by the Four-

teenth Amendment because they “condition access of

4

Oklahoma motorists to a State-created speech forum on

a statutory amendment by the Oklahoma Legislature

and Governor authorizing the desired self-expression”

again claiming the statutes are not narrowly drawn to

achieve a compelling governmental interest, and that

“it does not adequately notify Oklahoma motorists of

what, if any, additional self-expression would be per-

mitted or prohibited in a State-created speech forum.”

(Response App. pgs. 54-55);

Claim Four, alleges the statutes violate the Equal

Protection Clause of the Fourteenth Amendment

“because it allows for, and in fact has resulted in,

impermissible viewpoint discrimination among other-

wise similarly-situated Oklahoma motorists in permit-

ting access to a State-created speech forum” and that

the statutes are not narrowly drawn to achieve a

compelling or any other governmental interest justify-

ing a distinction between allowing certain Oklahoma

motorists to express themselves on special license

plates and refusing to allow other Oklahoma motorists

to do the same.” (Response App. pgs. 55-56).

The Motorists requested the district court grant

them declaratory and injunctive relief. (Response

App. pgs. 57-58).

Petitioners were joined in their lawsuit by an

organization called Oklahoma Religious Coalition for

Reproductive Choice Education Fund, Inc. (“ORC”), a

non-profit organization established under § 501(c)(3)

of the Internal Revenue Code. (Response App. pgs. 6-

8). They have not asked this Court for Certioran

5

review because the Tenth Circuit remanded their

claims (i.e., Claims Five and Six) back to the district

court for further determination. (Petitioners’ App.

pgs. 36a-53a). Respondent/Cross-Petitioners join

them in this Appeal on Conditional Cross-Petition

filed separately asking this Court to review the Tenth

Circuit’s decision regarding ORC’s claims.

ORC claims to be “a statewide coalition of Chris-

tian, Jewish, and other religious organizations sup-

porting choice in family planning, regardless of

income, culture, race, class, gender or ethnic origin.”

(Response App. pg. 7, para. 22). Like the Motorists,

ORC alleged they “interpret the phrase ‘choice in

family planning’ to mean a woman’s freedom to

choose, according to her own faith, traditions or

religious and moral beliefs, among all available

reproductive options both before and after concep-

tion.” (Response App. pg. 7, para. 23). ORC claims it

“provides various services to assist pregnant women

who wish to engage in choice in family planning.”

(Response App. pg. 7, para. 24). They also claim to

“engage in various activities to express support for

choice in family planning,” and that they “would like

to apply for funding pursuant to 47 O.S. § 1104.6 to

(a) create a program that would provide direct sup-

port to pregnant women who have decided that

adoption is the appropriate option given their circum-

stances, and (b) support counseling and associated

training about adoption as a family planning option.”

(Response App. pg. 8, para. 28). ORC alleges under:

6

Claim Five, that Oklahoma’s tax funding part of the

state license plate scheme “violates the First and

Fourteenth Amendments ... by impermissibly deny-

ing [them] the ability to apply for and receive money

from the Choose Life Fund solely on the basis of

[their] involvement and association — through other

funding sources — with abortion activities.” (Response

App. pg. 56).

Claim Six, alleges that the funding statute “violates

[their] Equal Protection” rights “because it allows for,

and in fact has resulted in, impermissible discrimina-

tion among otherwise similarly-situated non-profit

organizations regarding their eligibility for disburse-

ments from the Choose Life Fund.” (Response App.

pg. 57).

ORC also asked the Court for declaratory and

injunctive relief. (Response App. pgs. 57-58).

All of the Defendants moved to dismiss the First

Amended Complaint on a variety of grounds, includ-

ing, lack of venue, Eleventh Amendment immunity,

lack of ripeness, lack of standing, failure to state

claims upon which relief could be granted, and the

Tax Injunction Act. On August 16, 2005, the district

court issued an Opinion and Order dismissing the

First Amended Complaint holding that it lacked

jurisdiction pursuant to the Tax Injunction Act [28

U.S.C. § 1341] to decide Plaintiffs’ First Amended

Complaint. (Petitioners’ App. B). Plaintiffs then

appealed to the Tenth Circuit.

7

In the interim, between the time when the dis-

trict court rendered its judgment and the time before

the Tenth Circuit entered its decision, the Oklahoma

Legislature (with the Governor’s approval), enacted

47 O.S. § 1135.7 which now allows any motorist

(including Petitioners) the opportunity to express any

viewpoint on a special license plate under certain

conditions and to fund initiatives that support their

viewpoint (possibly including abortion rights). (Peti-

tioners’ App. A, pgs. 136a-139a). This fact alone, may

render Petitioners’ claims moot.

The Tenth Circuit’s Decision

The Tenth Circuit affirmed the district court’s

decision regarding the Motorists’ claims — one through

four, but remanded ORC’s claims five and six to the

district court for further determination, ruling the

district court improperly applied the Ex parte Young

doctrine pursuant to this Court’s decision in Verizon

Maryland, Inc. v. Public Service Commission of Mary-

land, 535 U.S. 635 (2002). (Petitioners’ App. A).

.

PETITIONERS’ AND ORC’s CLAIMS

Both the Motorists and ORC are challenging the

same statutes. The Motorists are asking for the same

access to what they catagorize as a state created

forum in order to express their viewpoint on the

State’s license plates. While ORC is challenging the

funding part of that statute, demanding the federal

8

courts to force the state to expend state tax money for

a program the State has decided is not in the best

interests of its citizens. Both claims raise serious

federalism concerns. Because both are challenging the

same statutory scheme Cross-Petitioners are asking

this Court to accept its Cross-Petition conditioned on

this Court’s acceptance of Petitioners’ Writ for Certio-

rari in case number 07-297.

¢

REASONS FOR GRANTING

CONDITIONAL CROSS-PETITION

Respondents/Cross-Petitioners believe the Tenth

Circuit mis-applied this Court’s decision in Verizon

Maryland, Inc. v. Public Service Commission of

Maryland, 535 U.S. 635 (2002) in remanding ORC’s

claims five and six back to the district court. If this

Court decides to grant Petitioners’ Certiorari review,

then Respondents would seek a conditional cross-

petition joining ORC to this appeal on the following

issue:

Whether the Ex parte Young doctrine’ can be

used to grant federal courts jurisdiction over state

officials sued only in their “official capacity,” when the

relief requested would only affect the state’s taxation

and spending powers, and Congress has enacted a

specific statute, i.e., the Tax Injunction Act [28 U.S.C.

' Ex Parte Young, 209 U.S. 123 (1908).

9

§ 1341], that divests federal courts of jurisdiction on

state taxation issues?

Long before the Tax Injunction Act was enacted,

this Court held that:

“No court of equity will ... allow its injunc-

tion to issue to restrain [state officers collect-

ing state taxes], except where it may be

necessary to protect the rights of the citizens

whose property its taxed, and he has no ade-

quate remedy by the ordinary processes of

the law. It must appear that the enforcement

of the tax would lead to a multiplicity of

suits, or produce irreparable injury, ... be-

fore the aid of a court of equity can be in-

voked.” Dows v. City of Chicago, 11 Wall. 108,

110, 78 U.S. 108, 110, 20 L.Ed. 65 (1871).

Not only did the district court not have jurisdiction to

grant ORC its requested relief, but ORC also lacked the

standing to be granted the relief they are requesting.

ORC has no right to the state funds they are requesting.

They want the federal courts to either give them a share

of the pie or else deny everyone else their share.

The Tenth Circuit held that ORC was requesting

the following relief:

(i) for the district court to issue “a declara-

tion that [prohibits] the distribution of mon-

ies from the Choice Life Assistance Program

based on abortion-related speech [because it]

is unconstitutional”;

10

(ii) for the district court to issue “an injunc-

tion to stop the Defendants from enforcing 47

Okla.Stat. § 1104.6(C4) and (D), which prohib-

its distribution to such organizations”; and

(iii) for this Court to “[sever] ... those sub-

sections from the rest of the statute.”

(10th Cir. Opinion, Petitioners’ App. A, page

47),

The Tax Injunction Act “and the decisions of [the

Supreme Court] which preceded [the Act], reflect the

fundamental principle of comity between federal

courts and state governments that is essential to ‘Our

Federalism,’ particularly in the area of state taxa-

tion.” Fair Assessment in Real Estate Assn., Inc. v.

McNary, 454 U.S. 100, 103, 102 S.Ct. 177, 179, 70

L.Ed.2d 271 (1981).

The Tax Injunction Act is the embodiment of

federalism and comity. As such, not even the legal

fiction of Ex parte Young should be allowed to over-

come a State Official’s sovereign immunity, especially

when Congress has emphatically denied federal

courts jurisdiction on issues of local taxation. See,

e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44,

71-75, 116 S.Ct. 1114 (1996) (When Congress has

enacted a system whereby the federal government

can penalize the States for violations of federal law

and taken steps to prevent future violations of federal

law, there is no need for the federal courts to use the

Ex parte Young doctrine to accomplish the same

objective.). The Tax Injunction Act denies federal

11

courts jurisdiction as long as there is a “plain, speedy,

and efficient state remedy” available to the taxpayer.

28 U.S.C. 1341. Congress’ intent in enacting that Act

was to deny federal courts jurisdiction over local

taxation issues. It represents their belief that federal

courts should first let the States decide their own

taxing and spending issues. Claimants can still

appeal to this Court once the State administrative

and judicial processes have been exhausted. (28

U.S.C. § 1257). Such reasoning satisfies both federal-

ism and comity concerns by allowing the States to

first address their own taxation issues, and at the

same time preserves a claimant’s rights through an

appeal to this Court, if necessary. Granting the States

the first opportunity to address taxation issues can

many times avoid Constitutional issues by a mere

interpretation of the State’s own statutes or rules.

The “federalism” principles expressed in the Tax

Injunction Act are merely an acknowledgment of a

State’s self-governing rights reflected in the Tenth

Amendment. That Amendment prohibits the national

government from exercising non-delegated powers

that will infringe on the lawmaking autonomy of the

states; it provides that “[t]he powers not delegated to

the United States by the Constitution, nor prohibited

by it to the States, are reserved to the States respec-

tively, or to the people.” U.S. Const. amend. X. “The

Tenth Amendment was intended to confirm the

understanding of the people at the time the Constitu-

tion was adopted, that powers not granted to the

United States were reserved to the States or to the

12

people.” United States v. Sprague, 282 U.S. 716, 733

(1931).

The Tenth Circuit’s analysis of ORC’s claims

missed an important aspect of Ex parte Young. Even

“prospective equitable relief” in the form of injunc-

tive relief has its limitations under § 1983 when a

state or a state official is being sued. In granting

equitable relief, a Court cannot exceed its authority

under § 1983 and interfere with the State’s exercise of

its internal affairs, because such interference is

contrary to the principles of federalism. Rizzo uv.

Goode, 423 U.S. 362, 372, 96 S.Ct. 598, 605, 46

L.Ed.2d 561 (1976). In assessing the scope of a federal

court’s equitable power, this Court observed that

principles of federalism, “which play such an impor-

tant part in governing the relationship between

federal courts and state governments, ... have appli-

cability where injunctive relief is sought ... against

those in charge of an executive branch of an agency of

state or local governments.” Jd. at 380, 96 S.Ct. 598.

This Court has admonished federal courts granting

equitable relief against state actors to be “constantly

mindful of the ‘special delicacy of the adjustment to

be preserved between federal equitable power and

State administration of its own law.’” Id. at 378, 96

S.Ct. 598 (quoting Stefanelli v. Minard, 342 U.S. 117,

120, 72 S.Ct. 118, 96 L.Ed. 138 (1951)).

Respondents/Cross-Petitioners understand that

this Court held in Verizon Maryland, Inc. v. Public

Service Commission of Maryland, 535 U.S. 635 (2002)

that a federal court should not linger over the question

13

of whether “special” or other sorts of sovereign immu-

nity interests are at stake before analyzing the nature

of the relief sought, and that judges should “proceed

immediately in every case to the straightforward

inquiry whether the relief requested is properly

characterized as prospective or is indeed the func-

tional equivalent to impermissible retrospective

relief.” Jd. However, even a straightforward inquiry

under Ex parte Young to ORC’s claims five and six

reveals that the state officials sued in this case

should have been dismissed on jurisdictional grounds.

If the purpose of the Ex parte Young doctrine is to

prevent a state official from enforcing an unconstitu-

tional statute or to prevent that official from violating

the constitutional rights of an individual, without (at

the same time) infringing on the sovereign immunity

of the State, then ORC’s claims in this case are the

“functional equivalent” to a claim against the State of

Oklahoma and the Tenth Circuit mis-applied the

doctrine to ORC’s claims. A key component of the Ex

parte Young doctrine is: Who is the action really

against? Ex parte Young, 209 U.S. 123, 149-156

(1908). If the suit is the functional equivalent to a

suit against the State, then the doctrine should not be

applied. Jd. Any possible relief the district court could

grant in this case under ORC’s claims five and six

would be the functional equivalent to a suit against

the state of Oklahoma, because it would affect the

administration of the state’s taxing and spend-

ing powers. To allow a district court to use the Ex

parte Young fiction in this case granting it jurisdiction

14

over state officials sued only in their official capacity

would allow it to circumvent the Tax Injunction Act

by doing indirectly what it would otherwise not be

allowed to do directly. Thus any relief the district

court could grant would be contrary to the Tax In-

junction Act.

Even though the Tenth Circuit questioned Jus-

tice Kennedy’s decision in Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028 (1997), as

not garnering the majority of the Court, Respondents/

Cross-Petitioners believe Justice Kennedy did get

some aspects of the Ex parte Young doctrine correct.

Respondents/Cress-Petitioners believe Ex parte

Young’s “functional equivalent” inquiry relates just as

much to a court’s “Who is the case really against”

element, as it does to the “prospective equitable relief”

element. Therefore the “straightforward inquiry” under

Ex parte Young that the Tenth Circuit should have

asked was: Will the relief requested affect a State

function or a State official’s enforcement of an un-

constitutional law? Ex parte Young, at 151-156. If it

would affect a State function such as the admini-

stration of the State’s taxation powers or infringe on

the state’s spending powers, then the legal fiction of

Ex parte Young should not be applicable.

ORC’s requests for relief would affect only the

State’s finances. For instance, “(i) [a] declaration that

[prohibits] the distribution of monies from the Choice

Life Assistance Program based on abortion-related

speech {because it] is unconstitutional” (Petitioners’

App. A, pg. 47), would be the functional equivalent

15

of a direct action against the state disrupting the

state’s finances and prohibiting it from exercising its

taxing and spending powers for the general welfare

and protection of its citizens. ORC’s request for “(ii)

[aln injunction to stop the Defendants from enforcing

47 Okla.Stat. § 1104.6(C)(4) and (D), which prohibits

distribution to such organizations” (Petitioners’ App.

A, pg. 47) would be the functional equivalent of an

action against the state because it would both deny

the state the ability to fund a state program for the

general welfare and protection of its citizens and also

force the state to fund a program its elected officials

chose not to fund, thus infringing on the state’s Tenth

Amendment rights. Finally, a request for the Court to

“(iii) [sever] ... those subsections from the rest of the

statute” (Petitioners’ App. A, pg. 47) would again be

the functional equivalent of a direct action against

the state because it would deny the state the ability

to fund a program designed for the general welfare

and protection of its citizens.

Therefore, since Congress has expressly denied

federal courts jurisdiction to decide local taxation

claims, not even the legal fiction of Ex parte Young

should be allowed to grant federal courts jurisdiction

over state officials sued in their official capacity when

the relief requested would affect the state’s ability to

tax and spend its own revenue.

+

16

CONCLUSION

This Court should deny Petitioners’ Petition for

Certiorari because the Tenth Circuit’s decision that

the Tax Injunction Act denied the district court

jurisdiction to hear their claims was correct. In the

event this Court does grant Petitioners’ Petition, then

Respondents’ request this Court to also grant their

Cross-Petition because the Tenth Circuit’s decision

concerning Ex parte Young was not exactly correct,

and that court should have dismissed ORC’s claims as

well.

Respectfully submitted,

DREW EDMONDSON RICHARD W. FREEMAN, JR.

Oklahoma Attorney General Counsel of Record

KEVIN L. MCCLURE Assistant General Counsel

Counsel of Record OKLAHOMA DEPT. OF

SHERRY TODD HUMAN SERVICES

Counsel on Appeal OFFICE OF GENERAL COUNSEL

Assistant Attorneys General Sequoyah Memorial

STATE OF OKLAHOMA Office Building

LITIGATION SECTION 2400 N. Lincoln Blvd.,

313 N.E. 21st St. Room 201

Oklahoma City, OK 73105 Oklahoma City, OK 73105

(405) 521-3921 (405) 521-3638

Attorneys for Governor Attorney for Oklahoma

Brad Henry Dept. of Human Services

App. 1

Okl.Const. art. XXV,§1 Relief and care of needy aged

and disabled persons — Co-operation with Federal Plan.

In order to promote the general welfare of the people

of the State of Oklahoma and for their protection,

security, and benefit, the Legislature and the people

by initiative petition are hereby authorized to provide

by appropriate legislation for the relief and care of

needy aged persons who are unable to provide for

themselves, and other needy persons who, on account

of immature age, physical infirmity, disability, or

other cause, are unable to provide care for them-

selves; Provided, the Legislature or the people by

initiative petition, are further authorized, in co-

operation with and under any plan authorized by the

Federal Government for State participation, to pro-

vide by appropriate legislation for the relief and care

of aged or needy persons.

The levy of taxes, other than ad valorem taxes, neces-

sary to carry into effect legislation enacted pursuant

thereto, is hereby authorized.

Okl.Const. art. XXV, §2 Department of Public

Welfare.

For the purpose of effectively administering and

carrying into execution all laws enacted pursuant to

the authority granted in Section One hereof, there is

hereby created a Department of Public Welfare. Said

Department of Public Welfare is hereby charged with

the duty and responsibility of faithfully administering

and carrying into execution all laws enacted pursuant

App. 2

to the authority granted in Section One hereof and

shall perform such other duties as may, from time to

time, be prescribed by law.

Okl.Const. art. XXV, §3 Oklahoma Public Welfare

Commission.

The Department of Public Welfare shall be under the

control of a commission to be known as the Oklahoma

Public Welfare Commission; composed of nine mem-

bers appointed by the Governor and selected on the

basis of recognized interest in and knowledge of the

problems of public welfare. Each member of the

Commission shall be at least thirty years of age, shall

be a citizen of the United States, and shall have been

a qualified elector of Oklahoma at least five years

next preceding his or her appointment. Members of

the Commission or any person employed by an work-

ing under direction of said Commission may be of

either sex. Immediately upon the taking effect of this

Article, the Governor shall appoint the members of

said Commission for terms of office as follows: One

member for a term of one year, one member for a

term of two years, one member for a term of three

years, one member for a term of four years, one

member for a term of five years, one member for a

term of six years, one member for a term of seven

years, one member for a term of eight years and one

member for a term of nine years. Except as above

designated, the term of office of the members of said

Commission shall be nine years or until] their succes-

sors are appointed and qualified. The Governor shall

App. 3

designate one member of the Commission as chair-

man. Members of the Commission shall receive no

compensation for their services but shall be allowed

necessary traveling and other expenses actually

incurred while in the performance of their official

duties. The Governor shall have the power to fill

vacancies on the Commission for the remainder of the

unexpired term.

No member of said Commission shall be subject to

removal by the Governor, but any such member shall

be removable only in the manner and for the causes

now provided in Article 2, Chapter 20, Oklahoma

Statutes 1931, for the removal of officers not subject

to impeachment. The venue of actions for removal

shall be in Oklahoma County.

Okl.Const. art. XXV, §4 Director of Public Wel-

fare.

It shall be the duty of the Commission to select a

Director of Public Welfare, who shall not be a member

of the Commission, and who shall serve as the execu-

tive and administrative officer of the Department of

Public Welfare. The Director shall be appointed

wholly on the basis of ability, training and experience

qualifying him or her for public welfare administra-

tion. The Director shall serve at the pleasure of the

Commission. The salary of the Director shall be fixed

by the Commission.

App. 4

The Commission shall formulate the policies, and

adopt rules and regulations for the effective admini-

stration of the duties of the Department. All executive

and administrative duties and responsibilities of the

Department shall be discharged by the Director,

subject to the approval of the Commission. Subject to

the control of the Commission, the Director shall have

the power and it shall be his duty to employ person-

nel of the Department, prescribe minimum standards

of qualifications for such personnel and conduct

examinations before employment, formulate salary

schedules for classified service based upon training,

experience and general ability of persons selected for

positions in the Department or any institutions or

activities under the supervision of the Department.

Okl.Const. art. XXV, §5 Force and effect of legis-

lation contemporaneously adopted.

Any legislation under the authority herein granted,

adopted contemporaneously with the adoption of this

amendment, shall have the same force and effect as if

same had been initiated and adopted subsequent to

the adoption of this amendment.

10 Okl.Stat., § 22.2 - Creation of the Investing in

Stronger Families Act

A. This section shall be known and may be cited as

the “Investing in Stronger Oklahoma Families Act”.

App. 5

B. It is the intent of the Oklahoma Legislature in

enacting the Investing in Stronger Oklahoma Fami-

lies Act to provide assistance to guardians of children,

adoptive parents and other “created families”, to

assist such guardians, adoptive parents and families

to assume permanent custody of children in need of

safe and permanent homes, and to enhance family

preservation and the stability of these homes.

C. For purposes of implementing the Investing in

Stronger Oklahoma Families Act, the Department of

Human Services shall collaborate with appropriate

local, state and federal agencies and private entities

to develop by December 31, 2001, a comprehensive

strategic state plan for investing in stronger families.

D. The comprehensive strategic state plan shall:

1. Set a goal to annually increase the number of

programs for “created families” which will increase

safe and permanent homes for children who are not

in the custody of the Department but unable to reside

with their biological parents and encourage and

preserve the adoption or guardianship of and other

legal custody arrangements for such children;

2. Develop and implement a _ statewide public

awareness campaign which will inform preadoptive

homes, adoptive homes and other persons desiring to

obtain guardianship or other legal custody of a child,

of the programs, grants and other assistance avail-

able to them;

App. 6

3. Identify public and private resources, both within

the agencies subject to the provisions of this section

and within the state and within the communities;

4. Provide for coordination and collaboration among

related efforts and programs;

5. Provide for contracts or agreements with public

and private entities for utilization of identifiable

financial resources from federal, state, local and

private resources and coordinate those resources to

fund-related services; and

6. Apply for grants and matching monies to assist in

the implementation of the Investing in Stronger

Oklahoma Families Act including, but not limited to,

funds derived from the “Respect Life - Support Adop-

tion” license plates.

E. As part of the development and implementation

of the comprehensive strategic plan, the Department

shall, as funds are available and using existing

available state resources, develop an information

database consisting of data on existing programs

serving families who have taken on the responsibility

of providing children with safe and permanent

homes. In developing the information database, the

Department shail coordinate with the Children’s

Coordinated Data System developed by the Okla-

homa Commission on Children and Youth.

F. The Legislature hereby encourages the estab-

lishment of family resource assistance that links,

federal, state and local resources and programs and

App. 7

that creates collaborative and interorganizational

partnerships between state governmental agencies

and private and nonprofit entities and attorneys.

Such agencies and private and nonprofit entities shall

include, but not be limited to:

1. The Department of Human Services;

2. The State Department of Education;

3. The Oklahoma Department of Career and Tech-

nology Education;

4. The Oklahoma Department of Commerce;

5. The Oklahoma Employment Security Commis-

sion;

6. The Oklahoma Health Care Authority;

7. The State Department of Health;

8. The Commission on Children and Youth;

9. The State Department of Mental Health and

Substance Abuse Services;

10. The Oklahoma Department of Corrections;

11. The Oklahoma State Regents for Higher Educa-

tion;

12. Community action agencies;

13. Local and municipal groups;

14. Substate planning groups;

15. Religious and charitable organizations;

App. 8

16. Private child placement entities;

17. Public or private foundations; and

18. Representatives of the courts and attorneys who

practice in adoption.

G. The Department shall enter into collaborative

and interorganizational partnerships as necessary to

provide assistance to guardians, adoptive parents and

other “created families”.

H. Within available funding specified by this sec-

tion, the Department may provide created families

with:

1. Case management services;

2. Flexible funds to enable the relatives, guardians,

adoptive parents and other created families to meet

unusual or crisis expenditures, including but not

limited to, making housing deposits, utility deposits,

or purchasing beds, clothing and food;

3. Child care and after school care;

4. Respite care;

5. Transportation;

6. Counseling;

7. Support groups;

8. Assistance in accessing parental child support

payments;

App. 9

9. Aid in accessing food stamps, Social Security and

other public benefits;

10. Assistance for establishing a guardianship,

adopting or obtaining custody of the child;

11. Available volunteer attorney services;

12. Mediation/family group conferencing; and

13. Community-based services and state or federal

programs serving guardians of children, adoptive

families and other created families.

I. The Department of Human Services may provide

any services necessary to effectuate the purposes of

this sec tin by contract with any person or with any

public or private entity.

J. The Department of Human Services shall, pursu-

ant to the provisions of the Administrative Proce-

dures Act, promulgate any rules necessary to

implement the provisions of this section.

K. For purposes of the Investigating in Stronger

Oklahoma Families Act, the Department shall, from

funds available, develop, publish, and distribute an

informational brochure for guardians, adoptive

parents and other created families who provide full-

time care for children. The information provided

under the program authorized by this section may

include, but is not limited to, the following:

1. The benefits that may be available to children

and created families pursuant to this section provid-

ing full-time care;

App. 10

2. The procedures to access the created families

program;

3. A list of support groups and resources located

throughout the state; and

4. Such other information deemed necessary by the

Department.

56 Okl.Stat., § 161 — Definitions

(a) When used herein, the term “State Department”

shall mean the State Department of Public Welfare;

(b) The term “Commission” shall mean the Okla-

homa Public Welfare Commission;

(c) The term “county board” shall mean the county

board of public welfare;

(d) The term “Director” shall mean the Director of

Public Welfare;

(e) The term “applicant” shall mean a person who

has applied for assistance under this act;

(f) The term “recipient” shall mean any person who

is receiving assistance under the terms of this act;

(g) The term “assistance” shall mean money pay-

ments to, medical care in behalf of, or any other kind

of benefit to or for recipients who receive aid under

the provisions of this act.

(h) The singular shall include the plural and the

masculine shall include the feminine;

App. 11

(i) The term “county department” shall mean the

county board of public welfare, and such other per-

sonnel as may be necessary for the efficient perform-

ance of the duties of the county department;

(j) The term “Department” shall mean the State

Department of Public Welfare and the county de-

partment of public welfare.

56 Okl.Stat., § 162 — Duties and Powers of Commis-

sion

The Commission shall have the power and it shall be

its duty to:

(a) Select a Director of Public Welfare who shall not

be a member of the Commission and who shall serve

as executive and administrative officer of the De-

partment. The Director shall be appointed wholly on

the basis of ability, training and experience qualifying

him or her for public welfare administration. The

Director shall serve at the pleasure of the Commis-

sion. The salary of the Director shall be fixed by the

Commission;

(b) Formulate the policies and adopt rules and

regulations for the effective administration of the

duties of the Department;

(c) Require and set the amount of the bond for

employees within its discretion;

(d) [Deleted by Laws 1939, p. 86, §2]

App. 12

(e) Cooperate with the Federal Social Security

Board, created under Title 7 of the Social Security

Act, enacted by the Seventy-Fourth Congress and

approved August 14, 1935, or other like agency cre-

ated by Congress, in any reasonable manner as may

be necessary to qualify for federal aid to states in

providing assistance to needy persons in conformity

with the provisions of this act, including the making

of such reports in such form and containing such

information as the Social Security Board or other

similar federal agency may from time to time require,

and comply with such provisions as the Social Secu-

rity Board, or other similar federal agency may find

necessary to insure the correctness and verification of

such reports; and

(f) Publish an annual report, not later than four (4)

months after the close of each fiscal year, showing for

such year the total amount paid to needy persons in

this state under the provisions of this act, and the

total number of such needy persons given assistance,

classified by age, sex, race, residence of persons

assisted, and such other particulars as may be

deemed advisable. Such report shall be presented to

the Governor.

(g) Present to the Federal Social Security Board a

new plan for old-age assistance, aid to dependent

children and aid to needy blind.

App. 13

56 Okl.Stat., § 162.1 — Additional Names for De-

partment of Public Welfare, Welfare Commission

and Director

(a) The Department of Public Welfare shall also be

known as, and may perform official acts and transact

official business in the name of, Department of Hu-

man Services.

(b) The Oklahoma Public Welfare Commission shall

also be known as, and may perform official acts and

transact official business in the name of, the Com-

mission for Human Services.

(c) The Director of Public Welfare shall also be

known as, and may perform official acts and transact

official business in the name of, the Director of Hu-

man Services.

56 Okl.Stat., §162.la -— Additional Names for

Department of Welfare, Public Welfare Commission

and Director of Public Welfare

Whenever the name of Department of Institutions,

Social and Rehabilitative Services, or Commission for

Institutions, Social and Rehabilitative Services, or

Director of Institutions, Social and Rehabilitative

Services appears in any law, contract or other docu-

ment, it shall be deemed to refer to Department of

Human Services, Commission for Human Services, or

Director of Human Services, respectively.