# Amicus Curiae Brief — Lingle v. Arakaki (No. 05-988) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0793%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2006 ## Text — — us Ay op ILE 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0793%3A4. Public record. Not legal advice.