Amicus Curiae Brief — Lingle v. Arakaki (No. 05-988)

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Conn @ MAR 9 ~ 2006

: AND , No. 05-988 OFFICE OF THE CLERK

ORIERG In The

Supreme Court of the United States

Ortober Term, 2005

LINDA LINGLE, in ber official capacity as

GOVERNOR OF THE STATE OF HAWAIL,

Petitioner.

Vv.

EARL F. ARAKAKL, et al,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF THE STATES OF FLORIDA, ARIZONA, ARKANSAS,

COLORADO, DELAWARE, IDAHO, MAINE, MICHIGAN,

MISSOURL, MONTANA, NEVADA, OHIO, OKLAHOMA,

OREGON, SOUTH CAROLINA, TENNESSEE, TEXAS, UTAH,

VERMONT AND WASHINGTON AS AMICI CURLAE IN

SUPPORT OF PETITIONER

CHARLES J. CRIST, JR.

Attorney General of Florida

CHRISTOPHER M. KISE

Solicitor General

ERIK M. FIGLIO

Deputy Solicitor General

Counsel of Record

SAMANTHA B. HUNTER

Assistant Attorney General

Office of the Attorney Genera!

PL-O1, The Capitol

lallahassee, FL. 32399

(850) 414-3681

Counsel for Amici Curiae

{ Additional counsel listed on inside cover}

LIBRARY GF CONGRESS

LAW LIBRARY

Terry Goddard

Attorney General of Arizona

Office of the Attorney General

L275 West Washington Street

Phoenix, AZ 85007

Mike Beebe

Attorney General of Arkansas

200 Tower Bidg.. 323 Center

Street

Little Rock, AR 72201-2610

John Suthers

Attorney General of Colorado

Department of Law

1525 Sherman Street

Denver, CO 80203

Carl C. Danberg

Attorney General of Delaware

820 North French Street

Wilmington, DE 19801

Lawrence Wasden

Attorney General of Idaho

P.O. Box 83720

Boise, LID 83720-1000

Steve Rowe

Attorney General of Maine

State House Station Six

Augusta, ME 04333

Michael A. Cox

Attorney General of Michigan

Post Office Box 30212

Lansing. MI 48909-0212

Jeremiah W. (Jay) Nixon

Attorney General of Missour

Office of the Attorney General

207 West High Street

Jefferson City, MO 65101

Mike McGrath

Attomey General of Montana

P. Q. Box 20140!

Helena, MT 59620-1401

Brian Sandoval

Attorney General of Nevada

100 North Carson Street

Carson City, NV 89701

Jim Petro

Attorney General of Ohio

150 East Gay Street, 23 Floor

Columbus, OH 43215

W.A. Drew Edmondson

Attorney General of Oklahoma

2300 N. Lincoln Blvd., Ste. 112

Oklahoma City, OK 73105-4894

Hardy Myers

Attorney General of Oregon

1162 Court Street NE

Salem, OR 97301

Henry McMaster

Attomey General of South

Carolina

Post Office Box 11549

Columbia. SC 29211-1549

Pau! Summers

Attorney General of Tennessee

500 Charlotte Avenue

Nashville, TN 37243

Greg Abbot _

Attorney General of Texas

Post Office Box 12548

Austin, TX 78711-2548

Mark Shurtleff

Attorney General of Utah

Utah State Capitol Complex

Fast Office Building, Suite 320

Salt Lake City, UT 84114-2320

William H. Sorrell

Attomey General of Vermont

109 State Street

Montpelier, VT 05609-1001

Rob McKenna

Attorney General of Washington

P.O. Box 40100

1125 Washington Street, SE

Olympia, WA 98504-0100

QUESTION PRESENTED

Whether state taxpayers have standing to challenge the

actions of state government or state agencies that expend, or

involve the use of, state taxpayer dollars, simply because they

pay taxes to the state”

TABLE OF CONTENTS

[ABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE.......2..cc000:c0:ceceererce

REASONS FOR GRANTING THE PETITION..................-.

I. The Ninth Circuit's decision directly conflicts

with precedent in the Second, Sixth, and Tenth

Circuits and has created uncertainty in the law ...

Il. The Ninth Circuit’s evisceration of Article III's

particularized injury requirement in cases

initiated by state taxpayers dramatically

undermines state SOVETEIQMY «22.20.0000. cceceeeeneeteeeen

CONCLUSION

TABLE OF AUTHORITIES

CASES

ASARCY, Inc. v. Kadish, 490 US. 605 (1989) 3.4.5.6

Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir. 1991) oe

Board of Educ v. New York State Teachers Retirement Sys.,

BO FF FE a Oy, SO eserstceriprccinninectctimerpecieneticornedlt

Cammack v. Wathee, 932 F.2d 765 (9th Cir. 1991)... m

Colorado Taxpayers Union, Inc. v. Romer, 963 F.2d 1394

Ss Me acthendutatiacesticiiisiiehascetictinchatensticeisinnnias Cae aD

Dawson v. Childs, 665 F.2d 705 (Sth Cit. 1982) on 8

Doremus v. Board of Educ., 342 U.S. 429 (1952) ...... - 3, 4,5

Flast v. Cohen, 392 U.S. 83 (1968) ...........ccccccccccccececeeeeeeeee 2, 8

Frothingham v. Mellon, 262 U.S. 447 (1923)..........1, 2,3, 4,5

Henderson v. Stalder, 287 F.3d 374 (Sth Cir. 2002) ....00..0...... 4

Hoohult v- Arivoshi, 741 F.2d 1169 (9th Cir. 1984)... 4. 5,6, 8

Lujan v. Defenders of Wildlife, S04 U.S. 555 (1992)...........2.7

Minnesota Federation of Teachers \. Randall, 89\ F.2d 1354

(Sth Cir 1989) : APR AS el Ring eee ee

Nike. bac v. Kasky, S99 U.S. G64 (20GB) ...-.2.-00e-ecceree-e-srecccseeed

O'Sullivan v. City of Chicago, 396 F.3d 843 (7th Cir. 2005) . 8

Schlesinge rv Reservists Comm. to Stop the War, 418 US

208 (1974) 2.7

Tarsney v O'Kecfe, 225 F.3d 929 (8th Cir. 2000) 4.5,6,7

Laub v Commonwealth of Kentucky, 842 F.2d 91 2 (6th Cir

]}9R8) , 4.5.6.8

United States ». Richardson, 418 U.S. 166 (1974) Ra?

Warth v. Seldin. 422 U.S. 490 (1975) .......ccccccccecccecscececeserene dy 7

Women's Emergency Network v. Bush, 323 F.3d 937 (11th Cir

/ eae Re SE ce RE Se AE

OTHER AUTHORITIES

Nancy C. Staudt, Taapayers in Court: A Systematic Study of a

(Misunderstood) Standing Doctrine, 52 Emory LJ.771

RD ore dene scale LPR EE a ee 7,8

il

INTEREST OF AMICI CURIME

The States have a compelling interest in preserving the

constitutional and prudential standing limitations on plainuffs

seeking to voice generalized grievances directed at a State's

taxing and spending decisions—that are common to all members

of the public or citizens of a State. If citizens of a State were

granted standing in federa! court to challenge state expenditures

without demonstrating a concrete, particulanzed injury, the

ability of the States to govern would be seriously impeded and

the integrity of our federal system would be jeopardized. The

States must be free to pursue their own legislative initiatives and

fiscal policies without being subject to unrestrained federal

judicial review. Respect for the States as sovereigns thus

dictates that federal courts ngorously police the “particulanzed

injury” requirement im suits initiated by state taxpayers

challenging a State’s taxing and spending decisions.

The Ninth Circuit's decision created uncertainty in the

law with respect to this proposition. The otherwise settled view

of the circuits 1s that, absent a particulanzed injury, a plaintiffs

status as a state taxpayer is ordinarily insufficient to confer

federal standing to challenge the actions of a state government.

Although the States within the Ninth Circuit have a particularly

compelling interest in this case, all States have an interest in

restoring certainty to the law in light of the federalism

implications of the Ninth Circuit's decision.

Because hundreds of thousands, if not millions of

_ taxpayers share the burden of every State's taxing and spending

decisions, those decisions are “essentially a matter of public and

not individual concern.” See Frothingham v Mellon, 262 US.

447. 487 (1923). The States have an interest in ensurnng such

grievances are addressed, as the Constitution contemplates. by

the politically responsive branches of government.

REASONS FOR GRANTING THE PETITION

1 The Ninth Circuit's decision directly conflicts

with precedent in the Second, Sixth, and

Tenth Circuits, and has created uncertainty in

the law.

In order to satisfy the “irreducible constitutional

minimum” for standing in federal court, a plaintiff must show

that he has suffered an “injury in fact” that is both concrete and

particulanzed Lujan v. Defenders of Wildlife, 504 U.S. 555,

360-561 (1992). To be “particulanzed,” “the injury must affect

the plaintiff in a personal and individual way,” id at 560 n.1, as

opposed to an undifferentiated, “generalized gnevance™ that 1s

“common to all members of the public,” United States v

Richardson, 418 U.S. 166, 176-77 (1974). “Absent the

necessary allegations of demonstrable, particulanzed injury,

there can be no confidence of ‘a real need to exercise the power

of judicial review’ or that rehef can be framed ‘no broader than

required by the precise facts to which the court's ruling would be

apphed.”” Warth v. Seldin, 422 U.S. 490, 508 (1975) (quotung

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,

221-222 (1974)). Accordingly. “a plaintiff raising only a

generally available gnevance about government - claiming only

harm to his and every citizen's interest in proper application of

the Constitution and laws, and secking relief that no more

directly and tangybly benefits him than it dees the public at large

does not state an Article Ill case or controversy.” Lujan, S04

US at $73-74.

lt as settled Law that federal taxpayers generally lack

standing to challenge Congress's taxing and spending decisions

because they lack a sufficiently parnculanzed injury.

f rothingham » Melion, 262 US. 447, 487 (1923). see also Flast

+ Cohen, 392 US. 83, 102-03 (1968) (holding that federal

ta\paver status ts insufficient to confer standing unless taxpayer

“show!s| that the challenged enactment exceeds specific

constitutional limitations upon the exercise of [Congress's taxing

,

and spending) power”). The Court made clear in / rothingham

that sutts prermsed on federal taxnaver status are net cognizable

in federal court because a taxpayer's “interest in the moneys of

the Treasury is shared with millions of others, 1s

comparatively minute and indeterm:nable, and the effect upon

future taxation, of any payment out of the funds, so remote,

fluctuating and uncertain, that no basis 1s afforded for an appeal

to the preventive powers of a court of equity.” 262 US. at 487

in Deremus v. Board of Education, 342 U.S. 429(1952),

the Court held that a state taxpayer lacks federal standing to

challenge state action unless he has sustained a “direct dollars-

and-cents injury” as a result, i.e, unless his claim can be

characterized as a “good-faith pocketbook action,” id at 434. In

so holding, the Court “rewterate{d] what the Court said of a

federal statute [in Frothingham] as equally true when a state Act

is assailed: “The party who invokes the power must be able to

show not only that the statute 1s invalid but that he has sustained

or 1s immediately in danger of sustaining some direct injury as

the result of its enforcement, and not merely that he suffers in

some indefinit: way in common with people generally.” Id

(quoting Frothingham, 262 US. at 488) (emphasis added)

A plurality of this Court confirmed in ASARCO, Inc \

Kadish, 490 U.S. 605 (1989), that under Doremus, suits

premised on state taxpayer status are ord:narily not cogmzable in

federal courts, id at 613-14; see also Nike, Inc. v. Kasky, 539

U.S. 654, 669 (2003) (Breyer, J., dissenting) (commenting that

state taxpayers “ordinarily lack federal “standing’™”). According

to the plurality, state taxpayers cannot satisfy Doremus's “good-

faith pocketbook action” requirement simply by alleging that the

existence of the challenged state program or practice results in

increased government spending and thereby results in higher

taxes. ASARCO, 490 US. at 614. Given the vanables attending

State taxing and spending decisions, “[t}he possibility that

taxpayers will receive any direct pecumiary relief from [the]

lawsuit is “remote, fluctuating and uncertain” /d (quoting

Frothingham, 202 US. at 487)

In hight of Doremus and consistent with ASARCO, the

Second, Sixth, and Tenth Circuits have held that state taxpayers

lack standing in federal court to challenge a State's taxing and

spending decitswwns unless they can differentiate some

quantifiable injury distinguished from that suffered by other

taxpayers. Bourd of Educ vy New York State Teachers

Retirement Sys, 60 F.3d 106, 110-11 (2d Cir. 1995): Colorado

luxpavers Union, Inc. v. Romer, 963 F.2d 1394, 1402-03 (10th

Cir. 1992), Taub v Commonwealth of Kentucky, 842 F.2d 9)?

Y¥18-19 (6th Cir. L988): see - Women 's Emergency Network

Bush, 323 F.3d 937, 943-44 (1 lth Cir. 2003) (recogmizing that

“stale taxpayers | ordinanly! La ick a sufficiently personal interest

to challenge laws of general applicability, since their injury is not

significantly different from that suffered by laxpa* *s mi

general”): Henderson v. Stalder, 287 F.3d 374, 379 (Sth Cir

2002) (“[I]n cases in which a state taxpayer challenges the

constitunonality of a state law, he ‘must be able to show not onls

that the statute is invalid but that he has sustained or is

immediately in d anger Of sustaining some direct Injury 4s 4 result

of its entorcement, not merely that he suftered in some indefinite

Wav In common with people generally." ' (quoting Doremus, 342

US. at 434); Zarsney v. O'Keefe 225 F.3d 929, 938 (8th Cir

2) (holding state taxpayers could not state Free Exercise

claim absent showing of direct ingury) Thus the majonty view

of the circuits 1s “that the requirements for tederal taxpayer

standing announced in Frothingham control the issue of state

taxpayer standing. at least in those cases where violation of the

he stabhishment Clause 1s not — " Laub, 842 F.2d at 918

Stale tanpayer standing 1s aconictable anne this otherwise

settled body of law. The court held in Hoohul: » Arivoshi, 74)

F 2d 1169 (9th Cir. 1984), that state taxpaver plaintiffs satisfy

Amicle TH and Doremus standing requirements simply by

4

~~

{pleading} with specificity amounts of money appropriated and

spent [by the state] for allegedly unlawful purposes,” id. at

1180.' Accordingly, there is no requirement under //oohul: that

a taxpayer show eithe . 1) that his alleged :ryury ts redressable by

(ce. that will financially benefit from) a favorable decision, or

(2) that his alleged injury is different in any way from that of any

other stale taxpayer.

Hoohuli has been rejected by decisions of at least the

Second, Sixth, and Tenth Circuits.” New Fork State Teachers

Retirement Sys, 60 F.3d at 110; Colorado Taxpavers Union, 963

F.2d at 1401-03; Taub, 842 F.2d at 919. In Taub, the Sixth

Circuit explained why Hoohuli’s elimination of a “direct and

palpable injury” requirement cannot possibly be correct. The

court observed that Doremus had not eliminated the

requirement—“1n fact, the Court in Doremus emphasized it by

quoting Frothingham conceming direct injury and the

requirement that a taxpayer-plainutt allege more than ‘merely

‘In Bell vy City of Ketlogg, 922 F.2d 1418 (9th Cur 199}), a Ninth Curcunt

panel reed on 4S4RCO for the proposition that “|t)he same constitutional

standing principles [applicable to federal taxpayers) apply to those suing in

federal court as state taxpayers.” id at 1423) However. a subsequent Ninth

Circuit pane! explained that Bel/ was merely meant to “ump y| some sympathy

toward Jusuce Kennedy's views,” and “should not be interpreted as altering

the law of this curcunt on state taxpayer standing ~ Cammack, Waihee. 932

F.2d 768, 770 n.9 (9th Cur 1991)

* Exghth Circuit precedent 1s less clear on this point Although the Eighth

Curcunt wn Tarsney relied on Colorado State Taapayers Union and Taub im

dismussing a Free Exercise claim raised by state taxpayers for their failure to

identity a duect mury. Jarsmesy, 225 F 3d at 937-38. Tarsney does not

acknowledge any conflict with Hoofué:, and an carer Fighth Curcun decision

appeared to rely on Hoohuli un holding, i an Establishment Clause case. that

Slate taxpayers need not demonswate an merease in thet tax burdens to satisty

Deoremus Minnesota Federation of Teachers v Randall 89) F.2d 1354

1358 (sth Car 1Y89), see Tarsney, 225 & 3d at 942 (Magill, dissenting)

(noting Vagueness of majonty opmon with respect to Doremus and resulung

vagueness of Eighth Circust precedent with respect to state laxpayer standing

aside trom F stablishment Clause context)

s

nee

that he suffers in some indefintte way in common with people

generally.” 7aub, 842 F.2d at 919

Notwithstanding ASARCO and the weight of authority

from other courts, the Nanth Circuit in this case declined to

retreat trom Hoohuli. Without significant analysis, the court

held that, notwithstanding ASARCO, “Hoohuli remains the law

of the circuit until our court, sitting en banc, overrules 1, or until

the Supreme Court, in a majonty opinion, plainly undermines its

principles.” Pet. App. at 24. The Ninth Circuit's holding that

4SARCO has no precedential value confirmed the existence of a

direct split of authonty between the Ninth Circuit on one hand

and at least the Second, Sixth, and Tenth Circuits on the other

See discussion supra n.2. Given the federalism implications of

the Ninth Circuit's decision, certioran 1s necessary to restore

certainty to the law

If. The Ninth Circuit’s evisceration of Article

III's particularized injur’ requirement in

cases initiated by state taxpa, ers dramatically

undermines state sovereignty.

The “consututional commitment to federalism” is

“senously undermine{d]}” if the Article IT] standing requirements

can be relaxed to permit a state taxpayer, suing solely as such, to

challenge state taxpaying and spending decisiens in federal court

Tarsney, 225 F.3d at 938, Colorado Taxpayers Union, 963 F.2d

at 1403: accord, e.g.. Taub, $42 F.2d at 919 (“[W]hen State

tuxpavets attack state spending in federal court, [1t implicates]

the integrity of our government's federalist structure.”’) (quoting

Hoohuli, 741) F.2d at 1183 (Wallace, J.. dissenting))

Accordingly. “[clonsiderations of federalism should signal

[caution] when @ state taxpayer seeks to have a federal court

enjoin the appropnation and spending activities of 4 state

government ” Jaub, 842 F.2d at 91

A State's autonomy in its conduct of fiscal affairs 1s

centrattetts sovereign status. See Jauh, 842 F.2d at 919 ("State

fy

sovereignty extends to the total conduct of a state’s tiscal

affairs.”). Thus federalism concerns are implicated any me a

State taxpayer seeks to have a tedera! court enjoin the taxing and

spending decisions of a state government. While a state ciuzen

who -zn allege a special injury as a result of a state's

constitutional violations should generally be free to initiate a

federal suit, state citizens should not be able to use the federal

courts to voice generalized gnevances with a State’s taxing and

spending decisions.

The purposes of the particulanzed injury requirement-—to

differentiate the business of courts from the business of the

political branches of government, Lujan, 504 US. at 576, and to

ensure that “relief can be framed no broader than required by the

precise facts to which the court’s ruling would be applied,”

Warth, 422 U.S. at 508 (intemal quotation omutted)—have

heightened significance in this context. If state taxpayers have

federal standing to voice generalized gnevances with state taxing

and spending decisions, they will have little incentive to raise

those concerns before the politically responsive branches of state

government. See Tarsney 225 F.3d at 938; cf Schlesinger v

Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974)

(“To permit a complainant who has no concrete injury to require

a court to rule on important constitutional issues in the abstract

would create the potential for abuse of the judicial process,

distort the role of the Judiciary in its relationship to the

Executive and the Legislature and open the Judiciary to an

arguable charge of providing ‘government by injunction.””).

Nancy C. Staudt. Taxpayers in Court: A Systematic Study of a

(Misunderstood) Standing Doctrine, 52 Emory 1..J. 771, 845

(2003) (*[MJany of the state and mumerpal taxpayer cases

suggest [that] taxpayers seck the assistance of federal court

judges to decide disputes that include a range of issues that are

picayune: university and college class offennys. city contracts

and bidding procedures, intramural sport) rules acd

requirements.”) (footnotes omitted) The = resulting

“|ujnnecessary or abstract decisions could unduly constnet

expenmental state weltare legislation and undermine local self-

determination.” Colorado Taxpayers Union, 963 F 2d at 1403

(quotung Hoohuli, 741 F.2d at 1183 (Wallace, J., dissenting)),

faub, 842 F.2d at 919; see also Staudt, $2 Emory LJ. at 845

(arguing that particulanzed injury requirement in state taxpayer

standing cases 1s sensible because, otherwise, “the federal courts

begin to play the role of ombudsman for states ")

Accordingly. the federal structure of the Constitution

requires the federal courts be more, not less, vigilant in policing

Article Ill’s “case or controversy” requirement whem a State is

hailed into tederai court and forced to defend a sovereign interes!

4» sacrosanct as its authonty to tax and spend free of federal!

interference. Cf Dawson v. Childs, 665 F.2d 705, 709 (Sth Cir

1982) (“Under our federalist system, the state governments no

less than the federal government possess certain unalienable

powers that the other may not encroach ur~n Of all such

areas, the field of state tuxaton 1s perhaps the most important. ’’)

“The mere allegation of federal constitutional violations cannot

be allowed to clothe a state governmental decisionmaking

process with the ill-fitung garments of federal court scrutiny.”

Colorado laxpayers Union, 963 F.2d at 1403. Instead, respect

for the States as sovereigns requires the federal courts, “before

permitting 4 plaintiff to challenge state governmental activity,

lo ensure, with careful attention, that the parties betore it have

the Tequisite concrete adverseness that will ensure full

presentation of the issues and avoid unnecessary intrusion into

State governmental processes.” O'Sullivan v. City of Chicago,

396 F.3d at 854 (7th Cir. 2005)

The Arucle Hl “particulanzed ingury” requirement

precludes taxpayers from “employ{ing] 4 federal court as a forum

in Which to air... generalized gnevances about the conduct of

government.” See Flast, 392 U.S. at 106. The policy rationale

underpinning this requirement is at least as strong im this

context where state taxpayers attempt to utilize the federal

S

courts to air generalized gnevances directed at their state

government—as it 1s in an all-tederal action. The Ninth Circuit

erred in reaching the opposite conclusion.

CONCLUSION

For the foregoing reasons, the petition for wnt of

certioran should be granted

RESPECTFULLY SUBMITTED.

CHARLES J. CRIST, JR

ATTORNEY GENERAL

CHRISTOPHER M. KISE

SOLICITOR GENERAL

Fla. Bar No. 0855545

ERIK M. FIGLIO

DEPUTY SOLICITOR GENERAL

Fla. Bar No. 074525]

SAMANTHA B. HUNTER

ASSISTANT ATTORNEY GENERAL

Fla. Bar No. 0017693

Office of the Attorney Genera!

Suite PL-01, The Capito!

Tallahassee, FL 32399

(850) 414-3300

(850) 410-2672 (fax)