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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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-——— 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.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED ON CONDITIONAL
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PARTIES TO THE PROCEEDING...................... ii

RULE 29.6 CORPORATE DISCLOSURE STATE-
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STATUTORY PROVISIONS INVOLVED ........... 1
STATEMENT OF THE CASE...............ccccescesseeees 2
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IIE faenvvn suche cise cencsansibunuiaeneecvesaviedeniaon 4
III Succes sank cbin dig tuicibewhibeasucusencenesaiaians 6
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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

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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

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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:

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1571%3A1. Public record. Not legal advice.