Opposition Brief — Kentucky Baptist Homes for Children, Inc. v. Pedreira

Supreme Court brief2011

Ask Donna

What actually matters in this document.

Text

pore

LED

Y MAY 10 200

No. 09-1121 OFFICE OF THE CLERK

3un the Supreme Court of the United States

J. MICHAEL BROWN, et al.,

Petitioners,

ALICIA PEDREIRA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

DAVID B. BERGMAN

ELIZABETH LEISE

ALICIA A.W. TRUMAN

JOSHUA P. WILSON

ARNOLD & PORTER LLP

STEVEN R. SHAPIRO

JAMES D. ESSEKS

DANIEL MACH

ROSE SAXE

ACLU FOUNDATION

WILLIAM E. SHARP

ACLU OF KENTUCKY

FOUNDATION, INC.

AYESHA N. KHAN

ALEX J. LUCHENITSER*

*Counsel of Record

AMERICANS UNITED FOR

SEPARATION OF CHURCH

AND STATE

518 C St. NE

Washington, DC 20002

(202) 466-3234

luchenitser@au.org

VICKI L. BUBA

OLDFATHER LAW FIRM

MURRAY R. GARNICK

Counsel for Respondents

(a RE AH ORS TC APT AR ARR EAAMR A NRE MH

Wison-EPes PRINTING Co., INC. — (202)780-0006 — WastanaTon, D.C. 20002

PARTIES TO THE PROCEEDINGS BELOW

The Defendants-Petitioners’ statement is correct,

except that, according to the institution’s website,

Defendant-Petitioner Kentucky Baptist Homes for

Children has changed its name to “Sunrise

Children’s Services.” The institution has taken no

steps to change its name in this litigation, however,

so we refer to it here as “Kentucky Baptist Homes for

Children;” or just “Baptist Homes.”

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDINGS BELOW............ i

I I opicrcccsvnnnsnvdcacenienntotonnicnetond li

TABLE OF AUTHORITIES. ...................--cccceseeeceeeeeees iv

TT TTT Ae ORO ARN ER 1

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED .............. 3

IIE 1x sits Milas a ncescinnaitccameaitedbenandaonnaetensigininnoaialeneiceel 3

a ane ee TT A Re 3

IIIT scsdsoicsndiahnsionbinndenbanenaianinimmpunatiaiaiiibiansiasnwinded 6

REASONS FOR DENYING THE PETITION............ 9

I. This case presents an exceedingly poor

vehicle for this Court to address whether

the “legislative nexus” test applies to state

A. Adjudicating the questions presented in

the Petition would be a purely academic

exercise, unless the Court were also to

decide an issue that the Petition does

eR nttereinintieniierinncnssneinnmsotninintanasinininctes 10

B. The Sixth Circuit’s ruling on whether

the “legislative nexus” test applies to

state taxpayers does not conflict with

any decision of this Court................c.00..cceseeeee 11

C. There is no circuit conflict justifying

I cae ae 15

D. Neither logic nor policy supports

applying the “legislative nexus” test to

I IND dctctrcceeenecteweninainseeiesnniiineinanrcdecen 20

TABLE OF CONTENTS—continued

Page

E. The vitality of the “pervasively

sectarian” test is not in issue at this

stage of the proceedings ..................scccseeeeeeeeee 25

II. The Sixth Circuit’s alternative holding that

the Taxpayers satisfy the “legislative

nexus’ test does not merit this Court’s

A. The Sixth Circuit’s application of the

“legislative nexus” test does not conflict

with any decision of this Court ...................... 27

B. The Sixth Circuit’s application of the

“legislative nexus” test does not create

any conflict among the courts of appeals....... 31

COC ES cinivcinctusriincensvticmunncaiae 33

APPENDIX

oe SB En la

Bay. Beaw. Tbe. © Te sccescesecscersncnsmakacieaan 3a

iy. Bue. Cibant. © GT BI eccccissecscvossvasennneemmucssenal 3a

Big. Bow, Geek. © GBI coinccecnsecevcesnscasaeaneane 5a

Kentucky 2006 Session Laws, Ch. 252, H.B.

UEP cccnknscecuesenscesedsuacdaisucenuans ae 7a

TABLE OF AUTHORITIES

Page(s)

CASES

Agostini v. Felton, 521 U.S. 203 (1997) ............. 11, 31

Allen v. Wright, 468 U.S. 737 (1984) .............0..000008 22

Americans United for Separation of Church &

State v. Prison Fellowship Ministries, 509

F.3d 406 (8th Cir. 2007)........0c0cccececeseseee- 18, 31, 32

Arakaki v. Lingle, 477 F.3d 1048 (9th Cir.

STETeL etstinuseuberscsenseoceteceseccececssoescceesccoscees 19

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989)... 12, 14

Baker v. Carr, 369 U.S. 186 (1962).....................0008 22

Board of Education v. New York State

Teachers Retirement Sysiem, 60 F.3d 106

a accunecnesunecesoceece 17

Booth v. Hvass, 302 F.3d 849 (8th Cir. 2002).......... 18

Bowen v. Kendrick, 487 U.S. 589 (1988) .......... passim

Cammack v. Waihee, 932 F.2d 765 (9th Cir.

NE 19

Committee for Public Education & Religious

Liberty v. Nyquist, 413 U.S. 756 (1973) ............. 12

County of Riverside v. McLaughlin, 500 U.S.

| 30

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332

rae sncinccntnenusopesecesevesecercecs passim

Delta Air Lines, Inc. v. August, 450 U.S. 346

Nee asses ensswcnncsonaceccocecece 25

DeStefano v. Emergency Housing Group, 247

gS | | 31

Doe v. Duncanville Independent School

District, 70 F.3d 402 (5th Cir. 1995) .......0000....... 18

TABLE OF AUTHORITIES—continued

Page(s)

Doe v. Madison School District No. 321, 177

Fe SI I iticcincntninniamncnntiecinesencinioes 19

Doremus v. Board of Education, 342 U.S. 429

NTT sisesasnteialsinicnlaiaicsleblenincadiniitat Acidic ainandiimieisciieitaessial passim

Elrod v. Burns, 427 U.S. 347 (1976).....................20 22

Everson v. Board of Education, 330 U.S. 1

SE iecsniespsiicceleieliiaban daddies clselhl A ida Daicaniadialicaeiamaaal 12

Flast v. Cohen, 392 U.S. 83 (1968).................... passim

Freedom From Religion Foundation v. Bugher,

BOD F.Be GOS CHU GA, BE overescevciccessscccscceccccees 31

Gregg v. Georgia, 428 U.S. 153 (1976)...........--.0.0-0-- 23

Growe v. Emison, 507 U.S. 25 (1993) ...................... 23

Hawley v. City of Cleveland, 773 F.2d 736 (6th

RES EELPOS ES Rene ee ntl AOD en nN 24

Hein v. Freedom From Religion Foundation,

Oe a I passim

Henderson v. Stadler, 287 F.3d 374 (5th Cir.

REDE Oe eee Cer Oe ae 18

Hinrichs v. Speaker of the House, 506 F.3d 584

SU SER, IT 5 sia sicaisiniiniasceuaniaaneldsieanieel passim

Hoohuli v. Ariyoshi, 741 F.2d 1169 (Sth Cir.

REEL REIS sk Aree 19

Huffman v. Pursue, Lid., 420 U.S. 592 (19785)........ 23

Hunt v. McNair, 413 U.S. 734 (19789)................ 11, 31

Johnson v. Economic Development Corp., 241

ff: IER aS 24

Kelo v. City of New London, 545 U.S. 469

Oa acales 23

TABLE OF AUTHORITIES—continued

Page(s)

Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991)....... 31

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............... 12

Lemon v. Kurtzman, 411 U.S. 192 (1973) ............... 23

Levitt v. Committee for Public Education &

Religious Liberty, 413 U.S. 472 (19783)............... 12

Marsh v. Chambers, 463 U.S. 783 (1983)........... ren

Massachusetts v. Mellon, 262 U.S. 447 (1923) ........ 14

Meek v. Pittenger, 421 U.S. 349 (1975).................... 11

Michigan v. Long, 463 U.S. 1032 (1983) ................. 10

Minnesota Federation of Teachers v. Randall,

891 F.2d 1354 (8th Cir. 1989)...........00...0.2cceeeeees 18

Mitchell v. Helms, 530 U.S. 793 (2000) ............. 7. 3

MLB Players Association v. Garvey, 532 U.S.

Ee ee 26

Moose Lodge No. 107 v. Irvis, 407 U.S. 163

RE SRERDERA SRN tenement eae aes 12, 13, 14

Mueller v. Allen, 463 U.S. 388 (1983)...................... 11

Peiphrey v. Cobb County, 547 F.3d 1263 (11th

eae a aa 19

Perkins v. Lukens Steel Co., 310 U.S. 113

SESITTIIID ikicuis paises ananail tsiciaiaialladiciadisuniacdainariieddlaadaadisacaatidboouaieees 22

Powerex Corp. v. Reliant Energy Services, Inc.,

GR RT __, aE reac eure eer O ne NIG 10

Pulido v. Bennett, 848 F.2d 880 (8th Cir.

ESE PRO are aimee ats ee OR oF Umer ne erence OARS 18

Pulido v. Bennett, 860 F.2d 296 (8th Cir.

III Assos itactsatanaciligechacesnlebiiabeaiadeiaadasbienaeenneeicaeepns 18, 31

Vil

TABLE OF AUTHORITIES—continued

Page(s)

Roemer v. Board of Public Works, 426 U.S. 736

NO vio scnciatmininiaeaee ole 11, 31

School District v. Ball, 473 U.S. 373 (1985)...... 11, 31

Sloan v. Lemon, 413 U.S. 825 (1973).....................4. 11

South Carolina v. Katzenbach, 383 U.S. 301

CSE iacaecieapiincbanbeianaukadaiavmgtabiae inated tem nanieeadiaradel te 22

Tarsney v. O'Keefe, 225 F.3d 929 (8th Cir.

FE, AMA ENT LR ear mNRN NRA eR EOS 18

Tilton v. Richardson, 403 U.S. 672 (1971) .............. 31

Town of Hallie v. City of Eau Claire, 471 U.S.

Be SIE \ciiaiesicassisnisceecioncapilstaataceateamentelamiaanmentmuiancn aiid: 23

United States v. Gillock, 445 U.S. 360 (1980) ......... 22

Ward v. Santa Fe Independent School District,

393 F.3d 599 (5th Cir. 2004) .........cccccceceecececeseeee 18

CONSTITUTIONAL PROVISIONS

FE, Fs GI Fee ititeseneceincnicnsstnticeinensinniindesnns 21

i As TB ie Bel iiisdeco cininietrneeenainndceae 20

Ky. Const. § 50............... seseoressncssesseeressosssoussrorsseonesees 21

I Mm, I Wg Oe Mics bnieaceconceirnevsimeeninnieen 20, 21

es I a BOOP VF ocatcitcestensaeeenccnceeatinee 20

CFR IG, IT, Ti Oe BO ocisiinrcinccinivicsencntsnsscennonsamamens 21

UE, Comat, ck. FBG no icecnceseeriens 13, 14, 20

A a SE : ennereamnnen em sree 20

STATUTES, RULES AND REGULATIONS

Oe I dseicacttcessanieicerecnces eee aniedaainndatdad tela abases 6

1950 Ky. Acts ch. 125 .0.......ccccccccscsecesceceseceeeeceseeseeeeeees 5

TABLE OF AUTHORITIES—continued

Page(s)

LS ES TT 5

Ky. Rev. Stat. Ann. § 199.640 ....0022...0.. cece cee eeeee cee ee 5

a ET” 5 ET 5

Bs ls Ws PENI, OF BIO cercccccccoscccccnssesescescreveeess 5

eS |: ee 5

Ky. Rev. Stat. Ann. § 199.660 ................cceseseecceeesenees 5

Ky. Rev. Stat. Ann. § 199.670 ...............0.ccccccceeeeeeeeeees 5

Ky. Rev. Stat. Amm. § 190.GG0 ......ccccccssscccssscscosesccccccce 5

Ky. Rev. Stat. Ann. § 199.801 ................. 0.0.2 cccceeeeeeeeee 5

Ky. Rev. Stat. Ann. § 199.805 .................ccccccssccesesceeee 5

Bay. BeOU. HOME. Amt, § BODLIUG ....csccccscccceccccvccccecvcscccese 5

Ky. Rev. Stat. Ann. § 605.090 ....00. 20.0... cece cc cee cece eeee ee 5

Ky. Rev. Stat. Ann. § 605.098 ..........0..........cccceeceeeeeee 5

Ky. Rev. Stat. Ann. § 605.100 ..................cccccceeeeseseeees 5

Ky. Rev. Stat. Ann. § 605.120 ....2...0......0.eccc ee eee cece eee 5

Ky. Rev. Stat. Ann. § 605.130 ..................cccceeeeeeseeenees 5

Be I MR, UIE, OF ON BIO gisccssconcinessonccsaccwonscconcons 5

By. meev. Beat. Amm. § GOG.1GD ...........cccresceccocescossovscese 5

ERE a co 17

ia ce aseilineacenisncnutialioemnenl 27

I r sccvlasedonimbeisedenens 10

TABLE OF AUTHORITIES—continued

Page(s)

MISCELLANEOUS

National Conference of State Legislatures,

Gubernatorial Veto Authority with Respect

to Major Budget Bill(s) (2008), http://www.

ncsl.org/IssuesResearch/BudgetTax/Guber-

natorial VetoAuthoritywithRespecttoMajor/

tabid/12640/Default.aspx...................0..cccceeseeeeees 21

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

INTRODUCTION

This case is a challenge to the provision of state

and federal funds by the Defendant-Petitioner

Kentucky agencies to Defendant-Petitioner Kentucky

Baptist Homes for Children, which uses those funds

to support proselytization of the children whom the

state agencies place at the Homes. The Defendants

have repeatedly sought to preclude the Plaintiffs

from litigating the merits of the case. The Petition

presents only the most recent round in this effort.

The questions presented by the Petition are not

worthy of this Court’s review.

Addressing the questions presented would be

nothing more than an academic exercise that cannot

affect the outcome of the case, unless the Court also

decides a question that is not presented by the

Petition. The two questions the Petition presents

raise the same issue: Did the court of appeals err by

holding that state taxpayers in Establishment-

Clause cases need not meet the “legislative nexus”

test that is applicable to federal taxpayers? But the

court of appeals also held, in the alternative, that the

Plaintiffs-Respondents did meet that test in their

capacity as state taxpayers. That latter holding is

not challenged by either of the Petition’s two

questions. And even if that alternative holding had

been presented, that holding does not deserve review

by this Court, because it simply involves the panel’s

application of existing precedent to particular facts.

On the issue that the Petition does present, there

is no conflict between the panel’s holding and this

Court’s decisions, as this Court has never required

state taxpayers in Establishment-Clause cases to

meet the “legislative nexus” test.

Furthermore, the alleged “circuit split” to which

the Defendants point is superficial, undeveloped, and

may very well resolve itself without the Court’s

intervention. The Court has only recently — in 2006

and 2007 — clarified the law regarding taxpayer

standing. Since then, only two circuits have analyzed

whether state taxpayers must meet the “legislative

nexus” test: the Seventh Circuit in Hinrichs v.

Speaker of the House, 506 F.3d 584 (7th Cir. 2007),

and the Sixth Circuit below. While those circuits

reached opposite results, the Seventh Circuit

reached its conclusion summarily, without

considering the arguments presented to the Sixth

Circuit. And the ultimate ruling in Hinrichs would

have been the same regardless of whether the

“legislative nexus” test had been applied, so the

Seventh Circuit’s conclusion on the governing test

was not necessary to the outcome of the case. A

subsequent panel of the Seventh Circuit may, under

the Seventh Circuit’s rules, reach a contrary result

and thereby resolve the current circuit split. The

other circuits, when confronted with this issue, may

very well agree with the panel below.

Indeed, that is highly likely because requiring

state taxpayers to meet the “legislative nexus” test

makes little sense. The test was originally derived

from the fact that the U.S. Constitution vests the

federal government's power to tax and spend

exclusively in Congress. But many § state

constitutions vest some taxing and spending powers

with executive-branch officials or directly with the

people (through referenda). The “legislative nexus”

test also effectuates the federal judiciary’s special

concern — based on the federal separation-of-powers

doctrine — about interfering with the internal affairs

of the co-equal federal executive branch. The

separation-of-powers doctrine, however, does not

apply to the federal judiciary’s relationship with the

States.

Finally, the merits of this case have not yet been

adjudicated. Any questions about standing can and

should be raised after final judgment, if they are still

relevant, rather than at this interlocutory stage of

the proceedings.

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

The following statutes, set forth in the

Petitioners’ and Respondents’ appendices, are

principally relevant: Ky. Rev. Stat. Ann. §§ 199.641,

199.650, 199.801, 199.805, 200.115, 605.090,

605.100, 605.120, 605.130.

STATEMENT

Facts

The Commonwealth of Kentucky contracts with

private childcare facilities to care for abused,

neglected, and abandoned children. C.A. App. 495.

One of these facilities is Kentucky Baptist Homes for

Children, which receives the majority of its funding

from the Commonwealth, including more than $100

million over the past decade. Pet. App. 88, Ff] 19-21;

C.A. App. 264, 995.

Most of the children in the care of Baptist Homes

are either temporary or permanent wards of the

state. Pet. App. 88, J 21. State or county social

workers — not the youths or their relatives — decide

whether to place these children at Baptist Homes.

Ibid.; see also Ky. Rev. Stat. Ann. §§ 199.801(2),

199.805, 605.090(d).

Baptist Homes indoctrinates these vulnerable

youths in its religious views, coerces them to take

part in religious activity, and attempts to convert

them to its version of Christianity. Pet. App. 90-91,

100-103, YY 26-27, 57-59. In its own words, the

institution is a “Christian ministry” that strives to

“permeate[] the environment of [its] programs with

Christian influences,” to “confront [children] with

their need for God,” and to “attempt to bring

spiritual matters into their lives.” Pet. App. 100-101,

q 57. Baptist Homes pressures its child residents to

attend Baptist church services, to participate in

Bible studies, to say prayers before meals, and to

attend religious camps and concerts. Pet. App. 100-

103, 99 57, 59. A contractor retained by the

Commonwealth to monitor private childcare facilities

reported several hundred complaints by children (in

exit interviews) about Baptist Homes’ religious

practices, including that the children had been

denied the opportunity to practice their own

religions, had been forced to attend Baptist

activities, and had been _ pressured to become

Christians. C.A. App. 327, 333, 352. And in reports to

the Kentucky Baptist Convention, Baptist Homes

has boasted about its successes in converting

children to Christianity, announcing that “[t]he

angels rejoiced [one] year as 244 of our children

made decisions about their relationships with Jesus

Christ.” Pet. App. 102-103, 7 59.

Baptist Homes receives state funding for its

proselytism pursuant to a comprehensive statutory

scheme — consisting of at least seventeen statutes

principally enacted through two pieces of legislation

in 1950 and 1986 — that authorizes and governs the

funding of private childcare facilities. See 1986 Ky.

Acts ch. 423 (enacting Ky. Rev. Stat. §§ 199.645,

605.090, 605.100, 605.120, 605.130, 605.150); 1950

Ky. Acts ch. 125 (enacting Ky. Rev. Stat. §§ 199.640,

199.650, 199.660, 199.670); Ky. Rev. Stat. Ann.

§§ 199.641, 199.680, 199.801, 199.805, 200.115,

605.095, 605.160. The Kentucky legislature has

mandated that two state agencies — the Cabinet for

Health and Family Services and the Department of

Juvenile Justice — provide care for neglected,

abused, and delinquent children. Ky. Rev. Stat. Ann.

§§ 605.100(1), 605.130. The legislature has

authorized these agencies to place children in private

childcare facilities and to use state funds to pay

those facilities, and has_ established detailed

standards for setting the payment rates. Ky. Rev.

Stat. Ann. §§ 199.641(2), 199.650, 200.115(1),

605.090(1)(d), 605.120(1).

The Kentucky legislature has also regularly

appropriated specific sums for private childcare

providers, out of which the Commonwealth makes

payments to Baptist Homes. Pet. App. 76, 79; Resp.

App. 7a-8a; C.A. App. 373-375. What is more, the

Kentucky legislature has long understood that its

childcare appropriations have been financing Baptist

Homes. Indeed, the legislature’s 2004-2006 budget

expressly directed $200,000 for one Baptist Homes

facility. Pet. App. 77. Further, in 1998, a Kentucky

Legislative Research Commission’s report to the

legislature noted that tens of millions of state dollars

were being paid to private childcare providers, listing

Baptist Homes as one of the providers that received

a significant number of child placements from the

Commonwealth. C.A. App. 481. In 2006, 4 chamber

of the legislature issued a “legislative citation” to

Baptist Homes, praising it for its “extraordinary

efforts in assisting those children within the

Commonwealth in need.” Pet. App. 80-81. And

numerous newspaper articles have discussed Baptist

Homes’ extensive receipt of state funds, including

front-page articles in Kentucky’s largest newspaper

reporting that Baptist Homes“is Kentucky’s largest

provider of private childcare services, a fact that

Baptist Homes itself confirms on its website. C.A.

App. 499, 501, 505, 594-629.

Finally, as discussed in detail in the Plaintiffs-

Respondents’ Conditional Cross-Petition, in addition

to paying Baptist Homes state funds, Kentucky pays

Baptist Homes substantial amounts of federal

dollars pursuant to two congressionally authorized

and funded programs that are subject to a federal

statute (42 U.S.C. 604a) that requires inclusion of

religious organizations among funding recipients.

Proceedings

The Plaintiffs-Respondents — state and federal

taxpayers — filed this action on April 17, 2000. The

Taxpayers alleged that Kentucky’s provision of

public funding to Baptist Homes violates the

Establishment Clause of the First Amendment,

because the funding supports religious indoctrination

of the youth in Baptist Homes’ care, and because

Baptist Homes is a thoroughly religious institution.

Pet. App. 100-103, 105, JY 57-59, 64-65. As the

district court noted, the Taxpayers brought an “as

applied” constitutional challenge, akin to Bowen v.

Kendrick, 487 U.S. 589, 618-622 (1988), where this

Court held that taxpayers had standing to challenge

particular grants that were issued under a facially

constitutional federal statute. C.A. App. 96; Docket

Entry 124, Aug. 27, 2003, at 2; Docket Entry 131,

Nov. 17, 20038, at 2.

On April 18, 2002, the Defendants filed motions

to dismiss the Taxpayers’ Establishment-Clause

claims based on standing. Docket Entries 82-83. On

April 16, 2003, the district court denied that motion

while allowing the Taxpayers to file an Amended

Complaint. C.A. App. 225-27. On July 31, 2006, the

Taxpayers sought leave to file a Second Amended

Complaint that would have added new substantive

allegations, but the district court denied the‘request.

C.A. App. 229, 310.

On August 10, 2007, shortly after this Court

issued its decision in Hein v. Freedom From Religion

Foundation, 551 U.S. 587 (2007), the Defendants

filed a new round of motions to dismiss challenging

the Taxpayers’ standing. Docket Entries 275-276. On

September 18, 2007, in response to attacks in the

Defendants’ motions against the adequacy of the

Amended Complaint, the Taxpayers sought leave to

file a new Second Amended Complaint. C.A. App.

772-778. This time, the proposed amendments were

limited to clarifying the Taxpayers’ allegations

relating to standing, by adding details about the

statutes and appropriations supporting the funding

of Baptist Homes and expressly confirming that the

Taxpayers are challenging these statutes and

appropriations “as applied.” Cross-Pet. App. 23a-25a,

11 22, 66; C.A. App. 772-775, 787, 826.

On March 381, 2008, the district court granted the

Defendants’ motions to dismiss for lack of standing,

apparently concluding that the Taxpayers had to

show that the Kentucky legislature made a

“particular appropriation” to Baptist Homes, and

ignoring that the legislature did in fact make such an

appropriation. Pet. App. 47. The district court also

denied the motion to amend, solely on futility

grounds. Pet. App. 31.

On August 31, 2009, a unanimous panel of the

court of appeals reversed the district court’s ruling.

The court of appeals held that the Taxpayers

satisfied the test for Establishment-Clause state-

taxpayer standing formulated in Doremus v. Board

of Education, 342 U.S. 429 (1952), as they alleged

that substantial amounts of state dollars have been

funding Baptist Homes’ religious indoctrination in

violation of the Establishment Clause. Pet. App. 19-

20. The court concluded that it was not necessary for

state taxpayers to satisfy the “legislative nexus” test

applicable to federal taxpayers under Flast v. Cohen,

392 U.S. 83, 102 (1968), explaining that there was a

lack of authority to support applying that test on the

state level. Pet. App. 21-22.

The court of appeals further held that even if the

“legislative nexus” test were applicable to state

taxpayers, the Taxpayers (as state taxpayers)

satisfied the test. Pet. App. 22-23. The court cited the

Kentucky statutes that authorized state funding of

private childcare facilities, the Kentucky legislature’s

direct appropriation of state funds to Baptist Homes,

and the legislature’s long-standing knowledge that

its funds were going to Baptist Homes. Pet. App. 19-

20, 22-23. The court noted that this case “falls

squarely within the line of cases where the Supreme

Court and our sister circuits have upheld taxpayer

standing when grants, contracts, or other tax-funded

aid are provided to private religious organizations

pursuant to explicit legislative authorization.” Pet.

App. 23.

The court of appeals also concluded that the

Taxpayers did not have standing as federal

taxpayers to challenge the federal funding of Baptist

Homes, a matter discussed further in the Taxpayers’

Conditional Cross-Petition. Pet. App. 18. The court

reversed the district court’s denial of the Taxpayers’

motion to amend the allegations in their complaint

relating to standing, a ruling that the Defendants do

not challenge in their Petition. Pet. App. 24. Finally,

the court affirmed the district court’s dismissal of

statutory employment-discrimination claims brought

against Baptist Homes by two of the Plaintiffs (Pet.

App. 12), a ruling on which we do not cross-petition.

On December 16, 2009, the court of appeals

denied petitions filed by the Defendants for

rehearing en banc. Pet. App. 52-53. Not a single

judge requested a vote on the petitions. Pet. App. 52.

REASONS FOR DENYING THE PETITION

I. This case presents an exceedingly poor

vehicle for this Court to address whether

the “legislative nexus” test applies to state

taxpayers.

Addressing the “Questions Presented” in this

case would be a purely academic exercise. Even if

that were not so, there is no good reason for the

Court to take up the Questions Presented at this

time, for the panel’s holding on them conflicts with

no decision of this Court, and any circuit split that

exists is cursory and undeveloped.

A. Adjudicating the questions presented in

the Petition would be a purely academic

exercise, unless the Court were also to

decide an issue that the Petition does

not present.

The first of the two “Questions Presented” in the

Petition is “Does Flast v. Cohen’s ‘legislative

enactment’ nexus test apply to State taxpayers as it

does to federal taxpayers?” Pet. ii. The second is

“Does Article II] confer upon the federal courts

broader authority to address alleged Establishment

Clause violations by State Legislatures than those

same courts have to address alleged Establishment

Clause violations by Congress?” Ibid. The second

question is nothing more than a _ rhetorical

restatement of the first. Both questions attack only

the panel’s holding that state taxpayers need not

meet the “legislative nexus” test. Neither challenges

the panel’s alternative holding that the Taxpayers

(as state taxpayers) satisfied that test.

But unless the Court addresses that alternative

holding, consideration of whether state taxpayers

must satisfy the “legislative nexus” test will be

nothing more than an academic exercise that cannot

affect the outcome of the case. See Powerex Corp. v.

Reliant Energy Services, Inc., 551 U.S. 224, 236

(2007); Michigan v. Long, 463 U.S. 1032, 1040-1041

(1983). And the Defendants have failed to bring that

alternative holding before the Court, placing it

outside the Court’s purview. See Sup. Ct. R. 14(1)(a)

(“Only the questions set out in the petition, or fairly

included therein, will be considered by the Court.”).

Even if the Court were to deem the alternative

holding to be properly presented by the Petition, that

holding is unworthy of review because it raises

nothing more than the question whether the panel

properly applied existing precedent to a particular

set of facts. See Section II, infra.

B. The Sixth Circuit's ruling on whether

the “legislative nexus” test applies to

state taxpayers does not conflict with

any decision of this Court.

Even if the Court were inclined to overlook the

procedural problems with addressing’ the

applicability of the “legislative nexus” test here, the

issue is not worthy of the Court’s review. There is no

conflict between the panel’s ruling and any decision

of the Court. There is also no mature circuit split

supporting certiorari. See Section I(C), infra. We

discuss this Court’s decisions before those of the

circuits, for the former aid understanding of the

latter.

The Court has expressly upheld the standing of

state taxpayers in three Establishment-Clause cases,

but in none of those cases did the Court hold that

state taxpayers must demonstrate a link between

challenged expenditures and legislative action. See

School District v. Ball, 473 U.S. 373, 380 n.5 (1985),

overruled in part on other grounds by Agostini v.

Felton, 521 U.S. 203 (1997); Marsh v. Chambers, 463

U.S. 783, 786 n.4 (1983); Meek v. Pittenger, 421 U.S.

349, 356 n.5 (1975), overruled on other grounds by

Mitchell v. Helms, 530 U.S. 793 (2000). The Court

has also adjudicated numerous other state-taxpayer

Establishment-Clause suits without discussing

standing at all, much less » quiring the taxpayers to

satisfy the “legislative nexus” test. See, e.g., Mueller

v. Allen, 463 U.S. 388, 392 (1983); Roemer v. Board of

Public Works, 426 U.S. 736, 744 (1976); Hunt v.

McNair, 413 U.S. 734, 735 (1973); Sloan v. Lemon,

413 U.S. 825, 827 (1973); Committee for Public

Education & Religious Liberty v. Nyquist, 413 U.S.

756, 762-(1973); Levitt v. Committee for Public

Education & Religious Liberty, 413 U.S. 472, 478

(1973); Lemon v. Kurtzman, 403 U.S. 602, 608, 610-

611 (1971).

Nonetheless, the Defendants contend that five

decisions of this Court have required federal and

state taxpayers to be treated identically in all

circumstances: Doremus, 342 U.S. 429; Flast, 392

U.S. 83; Moose Lodge No. 107 v. Irvis, 407 U.S. 163

(1972); ASARCO Inc. v. Kadish, 490 U.S. 605 (1989);

and DaimlerChrysler Corp. v. Cuno, 547 U.S. 332

(2006). The Court held no such thing in any of these

cases.

Doremus. In Doremus, the Court held that a

state taxpayer did not have standing to challenge a

state statute that called for Bible-reading at the

beginning of each school day. 342 U.S. at 435. The

Court explained, “[t]here is no allegation that this

activity is supported by any separate tax or paid for

from any particular appropriation or that it adds any

sum whatever to the cost of conducting the school.”

Id. at 433. The Court distinguished Everson v. Board

of Education, 330 U.S. 1, 3, 5, 17 (1947) — where the

Court adjudicated a state taxpayer’s challenge to a

statute authorizing the use of state funds to

transport students to parochial schools — explaining

that “Everson showed a measurable appropriation or

disbursement of school-district funds occasioned

solely by the activities complained of.” Doremus, 342

U.S. at 434. What was fatal to standing in Doremus

thus was not the lack of a “legislative nexus” —

indeed, the taxpayer’s challenge was directed at a

legislative enactment — but the lack of any

substantial spending on the challenged activity.

Flast. In Flast, the Court held that federal

taxpayers had standing to bring an Establishment-

Clause challenge to the implementation of a federal

statute providing aid to children in public and

private schools. 392 U.S. at 103. The Court ruled

that federal taxpayers have standing when two

conditions are met. Jd. at 101-104. One of these —

which we call the “injury nexus” — is that taxpayers

“establish a nexus between [taxpayer] status and the

precise nature of the constitutional infringement

alleged.” Jd. at 102. The Court explained that

Establishment-Clause claims satisfy this

requirement because a principal purpose of the

Clause was to prevent the use of government funds

to support religion. Jd. at 103-104. The second

requirement — which we call the “legislative nexus”

— is that taxpayers challenge “exercises of

congressional power under the taxing and spending

clause of Art. I, § 8, of the Constitution.” Jd. at 102.

The Court did not discuss state-taxpayer standing at

all, except when it noted that “[ijt will not be

sufficient to allege an incidental expenditure of tax

funds in the administration of an _ essentially

regulatory statute,” and explained that this

restriction “is consistent with the limitation imposed

upon state-taxpayer standing in federal courts in

Doremus.” Ibid.

Moose Lodge. In Moose Lodge, the Court briefly

rejected an argument that a plaintiffs status as a

state taxpayer could support jurisdiction for an

injunction requiring a state liquor-board to revoke

the license of a discriminatory club. 407 U.S. at 167.

The Court merely noted that Doremus requires that

challenged expenditures be more than “incidental,”

and that, unlike in Flast, no Establishment-Clause

claim was involved. Ibid. The Court did not rely on

any failure to show legislative action.

ASARCO. In ASARCO, 490 U.S. at 613-614, a

plurality of the Court concluded that — like federal

taxpayers (see Massachusetts v. Mellon, 262 U.S.

447, 487 (1923)) — state taxpayers generally lack

standing to challenge expenditures of tax funds. The

opinion did not discuss standing in Establishment-

Clause cases, however.

DaimlerChrysler. In DaimlerChrysler, 547 U.S.

at 346, a 2006 Commerce-Clause challenge to a state

tax credit, the Court as a whole agreed with the

ASARCO plurality’s conclusion. The Court reasoned

that state taxpayers, like their federal counterparts,

have only a minute interest in state treasuries. Jd. at

343-345. The Court distinguished its precedents

approving standing in Establishment-Clause

challenges, explaining that — unlike the Commerce

Clause — the Establishment Clause was specifically

intended to prevent injury to taxpayers. Id. at 348.

In other words, the Court concluded that the state

taxpayers before it could not satisfy Flast’s “injury

nexus.” The Court had no reason to decide, and thus

did not address, whether state taxpayers must

satisfy Flasts “legislative nexus” — the plaintiffs

lacked standing “[qjuite apart from whether the

[challenged] tax credit is analogous to an exercise of

congressional power under Art. I, § 8.” Id. at 347.1

1 Contrary to the Defendants’ contention (cf. Pet. 18),

DaimlerChrysler did not hold that municipal taxpayers must

meet the “legislative nexus” test. In fact, the Court reaffirmed

Hein. In its 2007 decision in Hein, 551 U.S. 587,

the Court denied federal taxpayers standing to

mount an Establishment-Clause challenge to

conferences that were presented by the federal

executive branch — and supported by general funds

not designated by Congress for any particular

purpose — during which executive-branch officials

gave speeches that used religious imagery and

praised faith-based social-service providers. 551 U.S.

at 592, 595-596. While the Defendants cite Hein

often, they do not claim that Hein required state

taxpayers to meet the “legislative nexus” test. In

fact, Hein did not discuss the standards for state-

taxpayer standing. But, as explained below in

Section I(D), Hein did clarify the legal principles

underlying the “legislative nexus” test — principles

that cannot justify importing the test into the state-

taxpayer context.

C. There is no circuit conflict justifying

certiorari.

Since DaimlerChrysler and Hein were decided,

only one court of appeals, other than the Sixth

Circuit, has even analyzed whether state taxpayers

must meet the “legislative nexus” test in

Establishment-Clause cases. And that circuit —- the

Seventh — failed to consider whether the principles

underlying the test support applying it at the state

level. The other circuits cited by the Defendants —

the Second, Fifth, Eighth, Ninth, and Eleventh —

that municipal taxpayers have general standing to challenge

unlawful uses of municipal funds. 5647 U.S. at 349. The Court

merely ruled in DaimlerChrysler that because the taxpayers

challenged state and not local decision-making, the lenient

municipal-taxpayer test was inapplicable. Id. at 349-350.

have not analyzed the question at all. Thus there is

no developed circuit split on the question.

Seventh Circuit. The only post-DaimlerChrysler

circuit opinion, other than the panel’s decision below,

that has actually considered whether state taxpayers

must satisfy the “legislative nexus” test in

Establishment-Clause cases is Hinrichs, 506 F.3d

584. There, state taxpayers challenged the sectarian

nature of prayers at the openings of sessions of the

Indiana House of Representatives. Jd. at 586-587.

The Seventh Circuit held that the taxpayers had to

meet the “legislative nexus” test, and that they had

failed to do so. Id. at 598-599. But the taxpayers’

claim for standing was also quite weak under the

more generous Doremus test applied by the Sixth

Circuit below. The expenditures at issue were

“minima!” (“$8.46 per prayer”), not necessary for the

administration of the prayer practice, and unrelated

to the sectarian nature of the prayers. Jd. at 587,

598; id. at 603 (Wood, J., dissenting). Under

Doremus, these outlays would likely have been

treated as “incidental expenditures” insufficient for

standing. See Flast, 392 U.S. at 102 (explaining

Doremus, 342 U.S. 429).

Hinrichs’ conclusion that state taxpayers must

satisfy the “legislative nexus” test not only was

unnecessary to the outcome of the case but also was

not founded on any in-depth analysis. The Seventh

Circuit merely accepted the argument the

Defendants make here — _ that because

DaimlerChrysler applied the same rule to state

taxpayers that applies to federal taxpayers outside

the Establishment-Clause context, these two types of

taxpayers should be treated identically in

Establishment-Clause cases too. Jd. at 595-598.

Hinrichs summarily reached that conclusion without

considering whether the principles upon which the

“legislative nexus” test is based are even applicable

to state taxpayers. Those principles — which were

clarified in the Court’s 2007 decision in Hein — in

fact do not support applying the test at the state

level. See Section I(D), infra. Because Hinrichs’

contrary conclusion was neither needed for the

outcome of the case nor based on substantial

analysis, a future panel of the Seventh Circuit may

very well bring the circuit into alignment with the

Sixth.?

Second Circuit. In Board of Education v. New

York S Teachers Retirement System, 60 F.3d 106,

110 (2 ‘tr. 1995), which was not even an

Establishment-Clause case, the Second Circuit ruled

(as DaimlerChrysler did subsequently) that state

taxpayers, like federal taxpayers, do not have

general standing to challenge government action

merely by virtue of their status as taxpayers. The

Second Circuit has not analyzed, however, whether

state taxpayers must meet the “legislative nexus”

test in Establishment-Clause cases.

Fifth Circuit. The Fifth Circuit has not had an

opportunity to consider state-taxpayer standing in

an Establishment-Clause case since DaimlerChrysler

and Hein were decided. Earlier Fifth Circuit cases

had held that state taxpayers should be treated like

federal taxpayers in non-Establishment-Clause

2 In the Seventh Circuit, a panel can overrule a prior panel

so long as the proposed opinion is circulated to the en banc

court and a majority of the judges do not vote for en banc

hearing. 7th Cir. R. 40(e).

cases, but that in Establishment-Clause cases they

need only show — in accordance with Doremus —

that “tax revenues are expended on the disputed

practice.” See Ward v. Santa Fe Independent School

District, 393 F.3d 599, 606 (5th Cir. 2004);

Henderson v. Stadler, 287 F.3d 374, 379-381 & n.7

(5th Cir. 2002); Doe v. Duncanville Independent

School District, 70 F.3d 402, 408 (5th Cir. 1995).

Eighth Circuit. Prior to DaimlerChrysler and

Hein, Eighth Circuit decisions likewise had held that

state taxpayers in Establishment-Clause cases “must

only show that there has been a disbursement of tax

money in potential violation of constitutional

guarantees.” Minnesota Federation of Teachers v.

Randall, 891 F.2d 1354, 1358 (8th Cir. 1989); see

also Pulido v. Bennett, 848 F.2d 880, 885 n.8, 886

(8th Cir. 1987), modified on other grounds, 860 F.2d

296 (8th Cir. 1988). The Eighth Circuit had also held,

consistently with DaimlerChrysler, that state

taxpayers lack standing in non-Establishment-

Clause cases. See Booth v. Hvass, 302 F.3d 849, 854

(8th Cir. 2002); Tarsney v. O'Keefe, 225 F.3d 929, 938

(8th Cir. 2000). After DaimlerChrysler and Hein

were decided, in Americans United for Separation of

Church & State v. Prison Fellowship Ministries, 509

F.3d 406, 420 (8th Cir. 2007), the Eighth Circuit

noted that a legislative nexus existed in upholding

the standing of a group of state taxpayers

challenging a religious program in a state prison, but

the court did not analyze whether state taxpayers

were required to show such a nexus.

Ninth Circuit. Before DaimlerChrysler and Hein,

the Ninth Circuit took the position that state

taxpayers could challenge any improper expenditure

of state funds under any provision of the US.

Constitution. See Doe v. Madison Sch.ol District No.

321, 177 F.3d 789, 793-797 (9th Cir. 1999); Cammack

v. Waihee, 9382 F.2d 765, 769-770 (9th Cir. 1991);

Hoohuli v. Ariyoshi, 741 F.2d 1169, 1178-1180 (9th

Cir. 1984). In Arakaki v. Lingle, 477 F.3d 1048, 1061-

1063 (9th Cir. 2007), the Ninth Circuit recognized

that DaimlerChrysler abrogated the circuit's prior

decisions to the extent that they had permitted state-

taxpayer standing in non-Establishment-Clause

suits, but the Court did not determine the

requirements for state-taxpayer standing in

Establishment-Clause controversies.

Eleventh Circuit. In Pelphrey v. Cobb County,

547 F.3d 1263, 1280-1281 (11th Cir. 2008), the

Eleventh Circuit upheld the standing of a group of

municipal taxpayers. The court stated that “Flast

pertains only to federal taxpayers and does not apply

to municipal taxpayers.” Id. at 1280. The court did

not analyze whether it would be appropriate to apply

the “legislative nexus” test to state taxpayers.

Given the paucity of analysis among the circuits

on the applicability of the “legislative nexus” test to

state taxpayers — and the lack of any analysis at all

about whether the legal principles underlying the

test support importing it to the state level (a

question we discuss next) — it would be premature

for this Court to address the matter. The courts of

appeals should be afforded a sufficient opportunity to

assess the impact of DaimlerChrysler and Hein on

state-taxpayer Establishment-Clause challenges.

D. Neither logic nor policy supports

applying the “legislative nexus” test to

state taxpayers.

Flast’s “legislative nexus” requirement is rooted

in two grounds. One of these is that in the federal

system of government, the power to tax and spend is

vested exclusively in Congress. See Flast, 392 U.S. at

102; U.S. Const. art. I, § 8. The second is the

separation-of-powers doctrine. See Hein, 5651 U.S. at

610-612 (plurality opinion). Neither of these grounds

supports applying the “legislative nexus” test to state

taxpayers.

Flast explained that federal taxpayers must

establish a logical link between the government

actions they challenge and their status as taxpayers.

392 U.S. at 102. As the exercise of taxing and

spending power creates such a link, and as that

power resides only in Congress at the federal level,

Flast required federal taxpayers to show a nexus

with legislative action. See ibid.; U.S. Const. art. I, §

Many state constitutions, however, vest

considerable spending or taxing power in the state

governor. Nebraska, for example, gives its governor

primary authority over the state budget, unless three

fifths of the legislature overrule him. Neb. Const. art.

IV, § 7. West Virginia gives its governor the right to

amend or supplement its budget with legislative

consent. W. Va. Const. art. VI, § 51. Florida grants

its governor the power to reduce state spending to

ensure that the state budget is balanced. Fla. Const.

art. IV, § 13. The Michigan Constitution allows its

governor to do the same with consent of legislative

appropriations committees, and provides that “[n]o

appropriation shall be a mandate to spend.” Mich.

Const. art. V, § 20. And forty-three states grant their

governors a line-item veto. National Conference of

State Legislatures, Gubernatorial Veto Authority

with Respect to Major Budget Bill(s) (2008),

http://www.ncsl.org/IssuesResearch/BudgetTax/Gu-

bernatorial VetoAuthoritywithRespecttoMajor/tabid/

12640/Default.aspx.

Some state constitutions provide taxing and

spending power directly to the people, through

referenda. The -constitutions of Arizona and Ohio

provide the people with power to adopt or reject any

item in any appropriations bill. Ariz. Const. art. XXI;

Ohio Const. art. II, § 1({a). And Kentucky itself

requires certain kinds of taxing and spending

measures to be ratified by popular vote. Ky. Const. §

50.

It makes little sense to apply to state taxpayers a

test derived from a federal constitutional regime that

is quite different from the states’ constitutional

structures. To be sure, state taxpayers must

establish standing under Article III of the U‘S.

Constitution to have their claims adjudicated in

federal court, but the test for whether they have

done so cannot legitimately turn on a provision of the

U.S. Constitution that governs the U.S. Congress

alone.

The second principle supporting the “legislative

nexus” test is, as explained in Hein, the separation-

of-powers doctrine — in particular, a special concern

about intrusion by the federal judiciary on the

internal, day-to-day operations and speech of the

federal executive branch. See 551 U.S. at 610-612

(plurality opinion); id. at 615-618 (Kennedy, J.,

concurring). Hein’s emphasis of the separation-of-

powers doctrine was consistent with earlier decisions

of this Court that denied standing based on

separation-of-powers concerns when the federal

judiciary was asked to intervene in internal

executive-branch operations. See Allen v. Wright, 468

U.S. 737, 752, 759-761 (1984); Laird v. Tatum, 408

U.S. 1, 13-14 (1972); Perkins v. Lukens Steel Co., 310

U.S. 113, 129-132 (1940).

As the Court has repeatedly recognized, however,

the “separation-of-powers principle * * * has no

applicability to the federal judiciary’s relationship to

the States.” Elrod v. Burns, 427 U.S. 347, 352 (1976)

(plurality opinion). For example, in United States v.

Gillock, 445 U.S. 360, 370 (1980), the Court held that

limits applicable to federal prosecutions of members

of Congress did not apply to federal prosecutions of

state legislators, in part because those limits were

based on the federal separation of powers. In Baker

v. Carr, 369 U.S. 186, 210, 217, 226 (1962), the Court

held that the political-question doctrine did not bar

federal courts from adjudicating the constitutionality

of the apportionment of state election districts,

because the political-question doctrine is based on

the separation of powers. See also South Carolina v.

Katzenbach, 383 U.S. 301, 323-324 (1966) (noting

that State could not invoke separation-of-powers

doctrine against federal government in challenge to

Voting Rights Act). Thus the separation-of-powers

doctrine does not support applying the “legislative

nexus” test to state taxpayers.®

® In contrast, the rationale supporting Flast’s “injury

nexus” test — that a taxpayer must be suing under a

constitutional clause aimed at preventing injury to taxpayers

(see 392 U.S. at 102-103) — applies with equal force to state

and federal taxpayers. It is the clause that taxpayers are suing

The Defendants contend that failing to use the

“legislative nexus” test at the state level will cause

the Establishment Clause to apply more onerously to

the States, and that such a result would be

inconsistent with federalism principles. Pet. 29. But

the substantive prohibitions imposed by the

Establishment Clause on federal and _ state

governments are the same regardless of any

standing rules. And government officials have a duty

to comply with the Constitution regardless of

whether anyone has standing to sue them. See, e.z.,

Hein, 551 U.S. at 618 (Kennedy, J., concurring).

Moreover, any limits that federalism principles

may impose on state-taxpayer standing would have

no connection to whether the moving force behind

challenged spending is legislative or executive. In

contrast to the special concerns expressed about

judicial oversight of the federal executive branch in

this Court’s separation-of-powers jurisprudence, this

Court’s federalism cases have singled out state

judicial bodies, not state executive or state legislative

conduct, for special protection. See Kelo v. City of

New London, 545 U.S. 469, 482 (2005); Growe v.

Emison, 507 U.S. 25, 35-36 (1993); Town of Hallie v.

City of Eau Claire, 471 U.S. 34, 38 (1985); Gregg v.

Georgia, 428 U.S. 153, 186-87 (1976); Rizzo v. Goode,

423 U.S. 362, 380 (1976); Huffman v. Pursue, Ltd.,

420 U.S. 592, 604 (1975); Lemon v. Kurtzman, 411

U.S. 192, 208 (1973).

under, not whether they are federal or state taxpayers, that

determines whether they are injured. Accordingly, the Court in

DaimlerChrysler, 547 U.S. at 348, applied Flast’s “injury nexus”

to determine that state taxpayers lack standing to sue under

the Commerce Clause.

Declining to require state taxpayers to meet the

“legislative nexus” test will not, as the Defendants

hyperbolically contend, “[jjJeopardize[] the [flederal-

[s]tate [sJocial [s]ervices [f]lunding system.” Cf. Pet.

31. Otherwise, the social-services system would

surely have already collapsed in the States covered

by the Fifth, Sixth, Eighth, and Ninth Circuits, for

all these circuits have long used the same Doremus

test to decide whether state.taxpayer standing exists

in Establishment-Clause cases that the panel used

below and that the Defendants contend is too lenient.

See Section I(C), supra; see also Johnson v. Economic

Development Corp., 241 F.3d 501, 507-508 (6th Cir.

2001); Hawley v. City of Cleveland, 773 F.2d 736, 742

(6th Cir. 1985). The Defendants do not claim that

these circuits have been inundated with lawsuits

challenging public funding of religious social-service

providers, and in fact no such thing has occurred.

The Defendants also express concern that failure

to apply the “legislative nexus” test to state

taxpayers would allow such taxpayers’ to

“[cjircumvent Flast’s [rjequirements” when

challenging federal funding that is passed through

state governments. Pet. 34. This argument assumes

that state taxpayers need only meet the test for

state-taxpayer standing when challenging a state's

use of federal funds, an issue has not been litigated

or decided in this litigation or, to the Taxpayers’

knowledge, in any other case. What is more, if the

courts ultimately decide the question in the way the

Defendants assume, such a resolution would not

constitute an improper “circumvention” of Flast, but

would merely reflect a judgment that state-taxpayer-

standing rules should apply when state decisions are

challenged, while federal-taxpayer-standing rules

should govern challenges to federal decision-making.

Cf. DaimlerChrysler, 547 U.S. at 349-353 (municipal

taxpayers had to satisfy state-taxpayer-standing

rules, not more lenient municipal-taxpayer rules, in

challenging state decisions that affected municipal

fisc).

E. The vitality of the “pervasively

sectarian” test is not in issue at this

stage of the proceedings.

The Defendants concede that they are not asking

the Court to grant certiorari on the extent to which

the “pervasively sectarian” doctrine remains good

law. Pet. 35. They did not raise this issue before the

court of appeals, so the question was not preserved.

See, e.g., Delta Air Lines, Inc. v. August, 450 U.S.

346, 362 (1981). Nevertheless, the Defendants quote

out of context a statement the Sixth Circuit made in

reaching its alternative holding that the Taxpayers

met the “legislative nexus” test: “the plaintiffs have

demonstrated a nexus between Kentucky and its

allegedly impermissible funding of a pervasively

sectarian institution.” Pet. App. 23. The Defendants

argue that the Sixth Circuit thus somehow injected

the “pervasively sectarian” doctrine into its standing

analysis. Pet. 35-36.

In fact, the Sixth Circuit’s entire standing

analysis was focused on how Baptist Homes is

funded, not on the nature of the institution. Pet. App.

16-23. The language upon which the Defendants rely

was simply a restatement by the panel of some of the

Taxpayers allegations — hence the use of the word

“allegedly” — and did not constitute the court’s

analysis. Indeed, the Sixth Circuit began the

paragraph containing the quoted language by stating

its holding without even mentioning the “pervasively

sectarian” nature of Baptist Homes: “the plaintiffs

have sufficiently demonstrated a link between the

challenged legislative actions and the alleged

constitutional violation, namely that Kentucky’s

statutory funding for neglected children in private

childcare facilities knowingly and impermissibly

funds a religious organization.” Pet. App. 22-23

(emphasis added).

In any event, the Taxpayers allege that the

public funding of Baptist Homes is unconstitutional

not only because Baptist Homes is pervasively

sectarian but also, regardless of how sectarian the

institution is, because Baptist Homes uses taxpayer

dollars for religious indoctrination. Pet. App. 99-103,

105, 94 56-59, 64. To be sure, there is a significant

divergence between the decisions of the Sixth Circuit

and those of the Fourth and Tenth Circuits

concerning the vitality of the “pervasively sectarian”

inquiry. See Pet. 35. This case, in its current posture,

does not present an opportunity to resolve that

tension. The Court may well have an opportunity to

consider the matter if the case were to circle back to

the Court after the merits of the Taxpayers’ claims

are adjudicated. At that time, the Court would also

be able to consider the standing issue presented by

the Petition, moet likely with the benefit of

additional analysis from intervening decisions by the

courts of appeals. See MLB Players Association v.

Garvey, 532 U.S. 504, 508 n.1 (2001).

2#**

In sum, the Court would be engaging in a purely

academic exercise if it were to grant certiorari on the

questions that the Petition presents. And the ruling

that the Questions Presented challenge is consistent

with the decisions of this Court, involves a matter

that is undeveloped in the courts of appeals, and was

eminently correct. The Court should allow the courts

of appeals further opportunity to develop the issue,

and if a full-fledged circuit split were to arise, the

Court would have ample opportunity to consider the

issue in the future — in this case or another — with

the-benefit of other lower courts’ input.

Il. The Sixth Circuit's alternative holding that

the Taxpayers satisfy the “legislative

nexus” test does not merit this Court’s

review.

As explained in section I(A) above, the Sixth

Circuit’s alternative holding is not properly before

this Court because it was not raised in the Petition’s

“Questions Presented.” But even if it had been

properly raised, the alternative holding is even less

worthy of the Court’s treatment than the questions

that were presented. The Sixth Circuit’s alternative

holding represents a straightforward application of

this Court’s precedents. The alternative holding does

not conflict with any ruling of another court of

appeals. At most, the “asserted error consists” of “the

misapplication of a properly stated rule of law” (cf.

Sup. Ct. R. 10), though even that claim is specious.

A. The Sixth Circuit’s application of the

“legislative nexus” test does not conflict

with any decision of this Court.

The Defendants take issue in several ways with

how the court of appeals applied the “legislative

nexus” test. But the Defendants do not take issue

with the panel’s statement of the legal standard: that

taxpayers must “demonstrate a link between the

challenged legislative actions and the alleged

constitutional violations.” Pet. App. 22-23. The

panel’s application of that standard to the facts of

the case falls well outside the range of issues worthy

of this Court’s review.

The Defendants contend that the Taxpayers

failed to challenge any particular statute or

appropriation. Pet. 22, 27. In fact, the Taxpayers

challenge “as applied” the statutes and

appropriations authorizing the funding of Baptist

Homes. Cross-Pet. App. 23a-25a, 47 22, 66. To the

extent that the Defendants contend that the

“legislative nexus” test limits taxpayers to facial

challenges, their argument is foreclosed by Bowen,

487 U.S. 589. Although the statute authorizing the

funding challenged by the taxpayer-plaintiffs there

was facially constitutional, the Court held that the

plaintiffs had standing to bring an “as-applied”

challenge aimed solely at the religious use of specific

grants. Id. at 618, 620-622; see also Flast, 392 U.S.

at 87, 89-90 (plaintiffs were allowed to proceed even

though they asserted that aid was being provided to

religious schools in a manner prohibited by the

statute in question, and even though they took issue

with a single schoo] district’s provision of aid).

Second, the Defendants suggest that taxpayer

standing exists only when legislation expressly calls

for public funding to be directed to a religious

institution in an unconstitutional manner. See Pet.

22-23, 26. Again, this is contrary to Bowen, for the

legislation that authorized the grants at issue there

did not require that any grant moneys be provided to

religious or even private organizations. See 487 U.S.

at 593, 604, 608. Instead, Congress merely

“contemplated that some of those moneys might go to

projects involving religious groups.” Hein, 551 U.S.

at 607 (citing Bowen, 487 U.S. at 595-596) (emphasis

added). In addition, in Flasi, the legislation at issue

did not even mention religious schools, much less

require that any aid to them be delivered in an

unconstitutional manner. See 392 U.S. at 86-88. And

in Hein, the Court found standing lacking where the

challenged spending was not “expressly authorized

or mandated” by Congress. 551 U.S. at 608

(emphasis added).

Third, and relatedly, the Defendants argue that

standing is lacking because Kentucky executive-

branch officials had discretion to decide whether to

fund Baptist Homes. Pet. 26-27. Once more, Bowen

forecloses the Defendants’ contention, as the Court

there held that the plaintiffs had standing to

challenge specific grants that the federal executive

branch had awarded on a discretionary basis. 487

U.S. at 618-620. In Flast too, federal, state, and local

executive officials exercised considerable discretion

over how the statute in question was implemented.

See 392 U.S. at 86-87, 90 & n.3.

Fourth, the Defendants complain about the Sixth

Circuit’s statement that the Kentucky legislature

has long been aware that it has been funding Baptist

Homes. Pet. 26-27. The panel’s statement simply

echoes the Hein plurality’s observation — made in

explaining why the taxpayers had standing in Flast

— that because the authorizing statute there was

passed at a time when most private schools were

religious, Congress “surely understood” that the aid

made available by that statute for students in

private schools “would find its way to religious

schools.” 551 U.S. at 604 n.3. Here, the Kentucky

legislature had actual knowledge that its funding

was going specifically to Baptist Homes. And the

panel did not err by considering evidence of

legislative knowledge that arose after the initial

complaint was filed but before the Second Amended

Complaint was submitted, for when a complaint is

amended it is proper for courts to look at the facts

that exist at the time of amendment in assessing

standing. See County of Riverside v. McLaughlin,

500 U.S. 44, 51 (1991).

More generally, the Defendants contend that

Hein substantially narrowed the circumstances

where standing is available under the “legislative

nexus” test. Pet. 23-26. In fact, Hein left all of the

Court’s precedents intact. The Court was confronted

with unusual circumstances unlike those presented

by any of the Court’s other taxpayer-standing cases.

The activities challenged in Hein were financed not

by money designated by Congress for any particular

program or function, but out of general, lump-sum

appropriations that executive-branch departments

could use for any purpose. 551 U.S. at 595, 607-608.

And what the Hein plaintiffs challenged was not the

payment of public funds to religious institutions that

used such funds for religious indoctrination, but

merely certain statements made by executive-branch

officials promoting federal aid to faith-based

institutions. Jd. at 592, 595-596. The plurality in

Hein thus carefully limited the case’s holding: federal

taxpayers lack standing to challenge such “a purely

discretionary Executive Branch expenditure.” Id. at

615. The opinion cautioned, “[w]e need go no further

to decide this case” and “we decide only the case at

hand.” Ibid. The plurality expressly rejected a

request to overrule Flast, and it cited Bowen with

approval. Jd. at 606-608, 615.

Here, the Taxpayers challenge the payment of

more than one hundred million dollars to a private

religious organization; the religious organization is

financed through programs specifically authorized

and funded by the Kentucky legislature; the

legislature has repeatedly appropriated funding for

these programs with knowledge that the funding

would be paid specifically to this _ religious

organization; and the legislature even designated a

specific amount for this religious organization by

name. The panel’s decision thus falls squarely within

a long line of cases where taxpayers have been

permitted to challenge the _ distribution by

administrative officials of substantial amounts of

public aid to private religious institutions pursuant

to a legislatively authorized scheme. See, e.z.,

Mitchell, 530 U.S. 793; Agostini, 521 U.S. 203;

Bowen, 487 U.S. at 619-620; Ball, 473 U.S. at %30

n.5; Roemer, 426 U.S. at 744; Hunt, 413 U.S. at 735;

Tilton v. Richardson, 403 U.S. 672, 675-676 (1971);

Flast, 392 U.S. at 85-88; see also Freedom From

Religion Foundation v. Bugher, 249 F.3d 606, 608-

611 (7th Cir. 2001); DeStefano v. Emergency Housing

Group, 247 F.3d 397, 403-405 (2d Cir. 2001); Lamont

v. Woods, 948 F.2d 825, 829-831 (2d Cir. 1991);

Pulido, 860 F.2d at 297-298.

B. The Sixth Circuit’s application of the

“legislative nexus” test does not create

any conflict among the courts of

appeals.

In suggesting that a circuit split exists over how

the “legislative nexus” test should be implemented,

the Defendants cite only two cases: Hinrichs, 506

F.3d 584, and Prison Fellowship, 509 F.3d 406. Pet.

17-18. Neither of these decisions conflicts with the

panel’s ruling.

The practice at issue in Hinrichs — the Indiana

House’s opening of its sessions with sectarian

prayers — was not authorized by any statute. 506

F.3d at 598-599. It was funded not by any specific

appropriation, but out of general House operating

funds. Jd. at 587, 598-599. As noted above, the

contested expenditures were minimal and did not

support the challenged aspect of the prayers. Id. at

587, 598. And, similarly to Hein, the plaintiffs were

not challenging any payments outside’ the

government to private parties for religious activities,

but instead were seeking an injunction against an

internal practice of the state government. Id. at 5865,

587, 598. There is not even a remote conflict between

the Seventh Circuit’s denial of standing on those

facts and the Sixth Circuit’s conclusion below.

Nor is there any conflict between the decision

below and the ruling in Prison Fellowship, 509 F.3d

at 420, upholding taxpayers’ standing to challenge a

religious prison program. Contrary to what the

Defendants contend (cf. Pet. 18), nothing in Prison

Fellowship suggests that taxpayers must identify an

appropriation that specifically requires funding of a

religious program. In fact, the appropriations in

Prison Fellowship were merely “for a values-based

treatment program” at a prison and left the lowa

executive branch with discretion to select a secular

contractor. Id. at 417-418, 420. The Eighth Circuit

indicated that the Iowa legislature knew when it

passed the appropriations that the Iowa executive

branch had already selected a religious contractor as

the provider of the program, although the court did

not suggest that such knowledge was required. See

id. at 420. The Eighth Circuit thus found standing

despite the exercise of executive discretion and

partly in reliance on legislative knowledge — just

like the Sixth Circuit below.

It is hardly surprising that there is no inter-

circuit conflict over how the “legislative nexus” test

should be implemented, given that Hein was issued

less than three years ago. Perhaps such a conflict

may develop with time, but none has surfaced to

date, so there is no reason for the Court to take up

the matter now.

CONCLUSION

The issue presented by the Defendants —

whether state taxpayers must meet the “legislative

nexus” test — is not ripe for this Court’s review.

Even if it were, in order to avoid engaging in a purely

academic exercise, the Court would need to

adjudicate another issue not presented by the

Petition. That issue — how the “legislative nexus”

test should be applied — falls well outside the range

of issues worthy of this Court’s consideration and

was resolved consistently with the decisions of this

Court and the other circuits. The Petition should be

denied.

Respectfully submitted.

AYESHA N. KHAN

ALEX J. LUCHENITSER*

DAVID B. BERGMAN

ELIZABETH LEISE

ALICIA A.W. TRUMAN

JOSHUA P. WILSON

Arnold & Porter LLP

555 12th St., N.W.

Washington, DC 20004

(202) 942-5000

WILLIAM E. SHARP

ACLU of Kentucky

Foundation, Inc.

315 Guthrie Street

Suite 300

Louisville, KY 40202

(502) 581-9746

Vicki L. BUBA

Oldfather Law Firm

1330 South Third Street

Louisville, KY 40208

(502) 637-7200

*Counsel of Record

Americans United for

Separation of Church

and State

518 C St. NE

Washington, DC 20002

(202) 466-3234

luchenitser@au.org

STEVEN R. SHAPIRO

JAMES D. ESSEKS

ROSE SAXE

_ American Civil Liberties

Union Foundation

125 Broad Street

18th Floor

New York, NY 10004

(212) 549-2627

DANIEL MACH

American Civil Liberties

MURRAY R. GARNICK Union Foundation

101 Constitution N. W. 915 15th Street, NW

Washington, DC 20001 Washington, DC 20005

(202) 354-1578 (202) 548-6604

Counsel for Respondents

May 10, 2010

APPENDIX

Ky. Rev. Stat. Ann. § 199.801. Procedure for

placement of children who are in custody of

department; statewide and district placement

coordinators; cases of unmet need; information

and recommendations; state resource plan;

assistance in developing facilities services

plan.

(1) The department shall establish a procedure

throughout the state that is designed to determine

and expedite the placement of children who are in

the custody of the department. The procedure shall

utilize a statewide placement coordinator and

district placement coordinators who may be state

employees or employees of a contracted entity, and

who shall be assigned and located in each of the

department’s districts.

(2) Upon determining that a child shall be

removed from the current living arrangement, the

social service worker with responsibility for the child

shall contact the district placement coordinator to

facilitate the placement. In consultation with the

social service worker, the district placement

coordinator shall determine the appropriate type of

placement according to the child’s circumstances and

needs and shall attempt to locate the appropriate

placement within the child’s home county.

(3) The living arrangement and placement

selected for the child shall be the type of facility that

is determined to be the best alternative for the child

that is in the closest proximity to the child’s home

county.

(4) If the type of placement that best suits the

child’s needs is not available in the child’s home

county, the district placement coordinator shall

document the circumstance as an unmet need and

may seek a placement in another county located

within the home district of the child.

(5) If the type of placement that best suits the

child’s needs is not available in the child’s home

district, the district placement coordinator shall

document the circumstance as an unmet need and

may seek a placement in surrounding districts by

contacting the statewide placement coordinator.

(6) If the type of placement that best suits the

child’s needs is not available in the districts

surrounding the child’s home district, the district

placement coordinator shall document the

circumstance as an unmet need and may seek a

placement in any district within the state by

contacting the statewide placement coordinator.

(7) If the type of placement that best suits the

child’s needs is not available within the state, the

statewide placement coordinator shall contact the

commissioner of the department oor the

commissioner's designee to explore placement

options.

(8) The statewide placement coordinator and

every district placement coordinator shall compile

information that identifies the unmet needs for their

jurisdiction, and shall submit the data and

recommendations for meeting the unmet needs to the

commissioner of the department.

(9) The commissioner shall develop a state

placement resource plan that identifies areas of

unmet need and strategies to meet the need. The

plan shall be used to guide and, if necessary, restrict

the development of new facilities, the expansion of

existing facilities, and the geographic location of

placement alternatives.

(10) The commissioner and the statewide

planning coordinator shall assist the Statewide

Strategic Planning Committee for Children in

Placement, created in KRS 194A.146, in the

development of a statewide facilities services plan.

Ky. Rev. Stat. Ann. § 199.805. Inventory of

placements.

The department shall maintain an inventory of

the number and types of placements available for

children by county, by district, and for the state. The

inventory shall be updated every week and shall

show in detail for each facility or foster home how

many beds are filled, how many are empty, and the

type of child that would be appropriate for referral to

the facility or foster home. The inventory shall be

readily accessible by the statewide placement

coordinator and the district placement coordinators.

Ky. Rev. Stat. Ann. § 605.100. Care,

treatment, and rehabilitation of committed

children.

(1) The Department of Juvenile Justice or the

cabinet shall arrange for a program of care,

treatment, and rehabilitation of the children

committed to it, which program shall be designed to

provide for classification, segregation, and

specialized treatment of children according to their

respective problems, needs, and characteristics and

to provide a coordinated system of probation and

perole services.

(2) The Department of Juvenile Justice or the

cabinet shall be responsible for the operation,

management, and development of the existing state

facilities for the custodial care and rehabilitation of

children committed to the Department of Juvenile

Justice or the cabinet under provisions of this

chapter. The Department of Juvenile Justice or the

cabinet shall further be responsible for the

development of such facilities as are necessary to

provide an adequate and modern program for the

care, treatment, and rehabilitation of such children.

(3) The facilities and programs under the control

of the Department of Juvenile Justice or the cabinet

shall be designed and operated in such a manner as

to rehabilitate, train, develop, and educate the

children to become good citizens and useful members

of society.

(4) Suitable programs of vocational education

and training shall be carried on in the facilities and

programs, with the view of preparing the children for

future self-support.

(5) The children in each facility and program

shall be employed so far as practicable in labor

incident to the maintenance and operation of the

facility and program, and in suitable industries

conducted by the facilities and programs as a part of

the vocational training program.

(6) The superintendent or managing officer of

each facility may use, for the maintenance of the

facility, the products of farms, dairies, and other

departments and industries of the facility or may sell

or exchange such products for the benefit of the

facility.

Ky. Rev. Stat. Ann. § 605.120. Payments to

home where children are placed;

reimbursement system for foster parents; pilot

projects; kinship care program; administrative

regulations; decisions regarding haircuts and

hairstyles.

(1) The cabinet is authorized to expend available

funds to provide for the board, lodging, and care of

children who would otherwise be placed in foster

care or who are placed by the cabinet in a foster

home or boarding home, or may arrange for

payments or contributions by any local governmental

unit, or public or private agency or organization,

willing to make payments or contributions for such

purpose. The cabinet may accept any gift, devise, or

bequest made to it for its purposes.

(2) The cabinet shall establish a reimbursement

system, within existing appropriation amounts, for

foster parents that comes as close as possible to

meeting the actual cost of caring for foster children.

The cabinet shall consider providing additional

reimbursement for foster parents who obtain

additional training, and foster parents who have

served for an extended period of time. In establishing

a reimbursement system, the cabinet shall, to the

extent possible within existing appropriation

amounts, address the additional cost associated with

providing care to children with exceptional needs.

(3) The cabinet shall review reimbursement rates

paid to foster parents on a biennial basis and shall

issue a report in October of each odd-numbered year

to the Legislative Research Commission comparing

the rates paid by Kentucky to the figures presented

in the Expenditures on Children by Families Annual

Report prepared by the United States Department of

Agriculture and the rates paid to foster parents by

other states. To the extent that funding is available,

reimbursement rates paid to foster parents shall be

increased on an annual basis to reflect cost of living

increases.

(4) The cabinet is encouraged to develop pilot

projects both within the state system and in

collaboration with private child caring agencies to

test alternative delivery systems and nontraditional

funding mechanisms.

(5) To the extent funds are available, the cabinet

may establish a program for kinship care that

provides a more permanent placement with a

qualified relative for a child that would otherwise be

placed in foster care due to abuse, neglect, or death

of both parents.

(6) The cabinet shall promulgate administrative

regulations in accordance with KRS Chapter 13A to

implement the provision of subsection (5) of this

section. The administrative regulations shall include

uniform conditions and requirements regarding:

(a) Eligibility requirements fcr the kinship

caregiver and the child;

(b) Financial assistance and payment rates;

and

services that may be provided to the kinship

caregiver or the child.

(7) Foster parents shall have the authority to

make decisions regarding haircuts and hairstyles for

foster children who are in their care for thirty (30)

_ days or more.

KENTUCKY 2006 SESSION LAWS

2006 REGULAR SESSION

CHAPTER 252

HB 380

APPROPRIATIONS--EXECUTIVE BRANCH

BUDGET

AN ACT relating to appropriations and revenue

measures providing financing and conditions for the

operations, maintenance, support, and functioning of

the government of the Commonwealth of Kentucky

and its various officers, cabinets, departments,

boards, commissions, institutions, subdivisions,

agencies, and other state-supported activities.

Be it enactec by the General Assembly of the

Commonwealth of Kentucky:

z*<ziak

H. CABINET FOR HEALTH AND FAMILY

SERVICES

Budget Units

10. COMMUNITY BASED SERVICES

2005-06 2006-07 2007-08

General Fund (Tobacco) -0- 6,970,400 7,420,400

General Fund -0- 316,033,500 341,729,700

Restricted Funds -0- 133,505,800 136,301,300

Federal funds 4,900,300 511,118,200 523,230,400

TOTAL 4,900,300 967,627,900 1,008,681,800

z*e2az«*«*

(2) Out-of-Home Care: Included in the above

General Fund appropriation is $7,383,000 in fiscal

year 2006-2007 and $22,962,600 in fiscal year 2007-

2008 which is necessary to support and sustain the

increased number of court-committed children in the

care of the Cabinet.

z£x «xt

(7) Private Child Care Provider Rate

Increases: Included in the above appropriation to

increase Private Child Care Provider reimbursement

rates beginning on July 1, 2007, is $2,883,700 in

General Fund moneys and $544,800 in Federal

Funds for an additional $3 per day in fiscal year

2007-2008.

(8) Performance Incentives for Hard-to-

Place Youth: Included in the above appropriation is

$961,200 in General Fund moneys and $181,600 in

Federal Funds in fiscal year 2007-2008 to create a

pool to serve hard-to-place youth by providing

performance incentives to private child care

providers beginning on July 1, 2007.

zk&«xzk«xk#knt

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.