No. 15-1021 ================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

SUNRISE CHILDREN’S SERVICES, INC.,

Petitioner, v.

VICKIE YATES BROWN GLISSON, SECRETARY, KENTUCKY CABINET FOR HEALTH AND

FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, SECRETARY OF THE JUSTICE AND PUBLIC SAFETY CABINET; ALICIA PEDREIRA;

PAUL SIMMONS; JOHANNA W.H. VAN WIJK-BOS; AND ELWOOD STURTEVANT,

Respondents.

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On Petition For Writ Of Certiorari To The United States Court Of Appeals

For The Sixth Circuit

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BRIEF OF KENTUCKY RESPONDENTS IN SUPPORT OF PETITIONER

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M. STEPHEN PITT General Counsel OFFICE OF THE GOVERNOR 700 Capitol Avenue, Suite 101 Frankfort, KY 40601 (502) 564-2611 steve.pitt@ky.gov

Counsel for Kentucky Respondents

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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QUESTIONS PRESENTED

The questions presented by the Petitioner are as follows:

1. Whether Flast v. Cohen, 392 U.S. 83 (1968), should be overruled.

2. Whether Flast should be expanded to state taxpayers.

The Kentucky Respondents propose that the fol-lowing question be added for review:

3. Whether the Sixth Circuit’s taxpayer-standing rule, focused on a state leg-islature’s awareness of how generally appropriated funds are spent by an executive-branch agency, improperly ex-pands Flast.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................ i

TABLE OF AUTHORITIES ................................. iii

STATEMENT OF THE CASE .............................. 1

ARGUMENT ........................................................ 8

I. FLAST SHOULD BE OVERRULED OR, AT A MINIMUM, SHOULD NOT BE EX-PANDED .................................................... 10

II. THE SIXTH CIRCUIT MISAPPLIED FLAST AND CREATED TWO CIRCUIT SPLITS ...................................................... 12

A. This Court Has Limited Flast To Its Facts .................................................... 13

B. The Sixth Circuit Ignored Flast’s Limitations .......................................... 18

1. The Sixth Circuit Improperly Re-lied on Legislative Activities, not Enactments ..................................... 19

2. A Legislature’s “Awareness” Pro-vides no Nexus Under Flast ........... 22

C. Pedreira Is The Outlier ....................... 27

1. The Seventh and Eighth Circuits Require a Specific Appropriation for Taxpayer Standing .................... 28

2. The Seventh Circuit Limits Tax-payer Relief to the Relief Sought in Flast ............................................ 34

CONCLUSION ..................................................... 37

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TABLE OF AUTHORITIES

Page

CASES:

Allen v. Wright, 468 U.S. 737 (1984) .................... 12, 16

Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406 (8th Cir. 2007) ......................... 9, 28, 33

Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011) ........................... 6, 7, 18

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

DaimlerChrysler Corporation v. Cuno, 547 U.S. 332 (2006) ........................................ 11, 12, 16, 18, 37

Doremus v. Bd. of Educ. of Borough of Haw-thorne, 342 U.S. 429 (1952) ...................................... 4

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

Freedom from Religion Foundation, Inc. v. Nichol-son, 536 F.3d 730 (7th Cir. 2008) .................... passim

Frothingham v. Mellon, 262 U.S. 447 (1923) ....... 13, 17

Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007) ................................. passim

Hinrichs v. Speaker of the House of Representa-tives, 506 F.3d 584 (7th Cir. 2007) .......................... 21

INS v. Chadha, 462 U.S. 919 (1983) .......................... 21

Johnson v. Econ. Dev. Corp. of Cnty. of Oak-land, 241 F.3d 501 (6th Cir. 2001) ............................ 5

Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008) .................................................. 9, 34, 35, 36, 37

iv

TABLE OF AUTHORITIES – Continued

Page

Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722 (6th Cir. 2009) ................... passim

Sherman v. Illinois, 682 F.3d 643 (7th Cir. 2012) .................................................. 9, 28, 29, 30, 33

Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) ................................ 15, 17, 18, 19, 20

STATUTES:

38 U.S.C. § 7306(e)(1) ................................................. 31

42 U.S.C. § 300z(a)(10)(C) .......................................... 15

42 U.S.C. § 1983 ........................................................... 2

KRS § 61.878(1)(a) ........................................................ 7

KRS § 199.640(1) .......................................................... 3

KRS § 199.640(5)(a)-(b) ................................................ 3

KRS § 199.641(2) .......................................................... 2

KRS § 199.650............................................................... 3

KRS § 200.115 ......................................................... 2, 19

KRS § 605.090............................................................... 3

KRS § 605.090(1)(d) .................................................... 19

KRS § 605.120............................................................... 2

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STATEMENT OF THE CASE

1. Through its executive-branch agencies, the Commonwealth of Kentucky (“Kentucky”) contracts with private child care providers to care for children committed to Kentucky’s care and custody. Some of these providers are religiously affiliated; others are secular. These contracts are essential to the welfare of these children, virtually all of whom have been neglected or abused. These contracts also create a net tax savings for Kentuckians because the private child care providers rely upon charitable donations, in addition to reimbursements from executive-branch agencies, to fund their activities.

Sunrise Children’s Services, Inc. (“Sunrise”) is a religiously affiliated child care provider that contracts with Kentucky’s executive-branch agencies. Sunrise has contracted with the Cabinet for Health and Family Services and the Justice and Public Safety Cabinet (together, the “Kentucky Respondents”) to provide, among other things, institutional treatment and foster-care placement for children in Kentucky’s custody. E.g., Pet. App. 219-31. These contracts are structured so that Sunrise, like all other contractors, is only reimbursed for audited, secular child care expenses.

The Kentucky Respondents pay for these expenses with monies that the Kentucky General Assembly generally appropriates for unrestricted child care spending. Importantly, the state legislature does not mandate how these funds should be spent – for

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example, by directing that they go to private child care providers or, for that matter, to religiously affiliated child care providers like Sunrise. Instead, the Kentucky Respondents retain ultimate discretion over how these generally appropriated dollars will be spent. More to the point, it is the Kentucky Respon-dents, not the Kentucky General Assembly, that have chosen to contract with Sunrise. This decision cannot be traced to any Kentucky statute or other legislative mandate.

2. More than fifteen years ago, a group of plaintiffs (the “Taxpayer Respondents”) challenged this regulatory regime under 42 U.S.C. § 1983, claim-ing that reimbursing Sunrise with public funds violates the Establishment Clause of the First Amendment. See Pet. App. 187-89. In the decade-plus that has followed, the Taxpayer Respondents have based their standing to raise this constitutional challenge solely on their status as taxpayers. E.g., Pet. App. 188. In particular, the Taxpayer Respond-ents have sought to avail themselves of the narrow exception to the general bar against taxpayer stand-ing that this Court enunciated in Flast v. Cohen, 392 U.S. 83 (1968).

To satisfy Flast, the Taxpayer Respondents, at various times, have relied upon the following legisla-tive activities: (1) general appropriations that fund the Kentucky Respondents’ budgets; (2) statutes that generally permit the Kentucky Respondents to spend money on child care, KRS §§ 199.641(2), 200.115, 605.120; (3) statutes authorizing executive-branch

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agencies to create licensing requirements for child care providers, KRS §§ 199.640(1), (5)(a)-(b), 199.650, 605.090; (4) a one-time appropriation to Sunrise for the construction of classrooms for children who are in Kentucky’s custody, Pet. App. 158-62; and (5) a com-mendation approved by one chamber of the Kentucky General Assembly thanking Sunrise for its work with children, Pet. App. 163-64.1 In more than fifteen years of litigation, the Taxpayer Respondents have never identified a Kentucky statute or other legislative mandate requiring the Kentucky Respondents to con-tract with a religiously affiliated child care provider like Sunrise.

3. Shortly after this Court’s decision in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007), the district court granted Sunrise’s motion to dismiss the Taxpayer Respondents’ Estab-lishment Clause claim for lack of standing. Pet. App. 130-33. On appeal to the Sixth Circuit, the court affirmed in part and reversed in part. Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 724 (6th Cir. 2009) (hereinafter “Pedreira I,” located at Pet. App. 83-110). The Pedreira I panel agreed with the district court that the Taxpayer Respondents lacked standing as federal taxpayers, reasoning that the mere invocation of federal statutes with “general

1 Oddly, the Taxpayer Respondents base their taxpayer standing on all five listed legislative activities, but limit their constitutional challenge on the merits to only the second activ-ity.

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funding provisions for childcare” was insufficient to confer taxpayer standing. Pet. App. 100. This was so because the Taxpayer Respondents “failed to explain how these programs are related to the alleged consti-tutional violation,” making the Taxpayer Respon-dents’ basis for standing “simply too attenuated to form a sufficient nexus between the legislation and the alleged [constitutional] violations.” Id.

Notwithstanding its own straightforward and correct application of Hein in the federal taxpayer context, the Pedreira I panel then distorted Hein (and thus Flast) by concluding that the Taxpayer Respon-dents had standing to raise an Establishment Clause challenge as state taxpayers. Pet. App. 105-06. The court offered a primary and an alternative reason for its conclusion.

The Sixth Circuit’s primary rationale was that the Taxpayer Respondents had alleged “the requisite ‘pocketbook’ injury.” Pet. App. 101 (quoting Doremus v. Bd. of Educ. of Borough of Hawthorne, 342 U.S. 429, 434 (1952)). As evidence, the court pointed to three legislative activities: (1) “[t]he Kentucky legisla-ture established a regulatory structure to authorize the placement of children with private facilities”; (2) “the Kentucky legislature . . . issued a legislative citation thanking [Sunrise] for its work with chil-dren”; and (3) “the Kentucky legislature . . . appropri-ated sums of money specifically to [Sunrise].” Pet.

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App. 101-02.2 “These legislative acts,” the court surmised, “show a direct injury to the plaintiffs, as their tax money is funding [Sunrise] and constitutes ‘lost revenue.’ ” Pet. App. 102 (quoting Johnson v. Econ. Dev. Corp. of Cnty. of Oakland, 241 F.3d 501, 507 (6th Cir. 2001)). The Pedreira I court determined that this “direct injury” was alone sufficient to estab-lish state taxpayer standing. Pet. App. 104.

But the Pedreira I panel did not stop there. The court proceeded to conclude, in the alternative, that “[e]ven if there were a nexus requirement [in state-taxpayer lawsuits], the plaintiffs have sufficiently demonstrated a link between the challenged legisla-tive actions and the alleged constitutional violations.” Pet. App. 104-05. According to the court, the Taxpayer Respondents established this nexus because they “have pointed to Kentucky statutory authority, legis-lative citations acknowledging [Sunrise’s] participa-tion, and specific legislative appropriations to [Sunrise].” Pet. App. 105. Yet, Taxpayer Respondents did not attack these actions as unconstitutional. For legal support, the Pedreira I panel’s lead citation was this Court’s decision in Bowen v. Kendrick, 487 U.S. 589 (1988).

Sunrise and the Kentucky Respondents peti-tioned this Court for certiorari. Approximately one

2 Taxpayer Respondents had never challenged any of these legislative actions as unconstitutional, but pointed to them as a basis for taxpayer standing to attack different legislation.

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year later, the Court denied the petition shortly after deciding Arizona Christian School Tuition Organiza-tion v. Winn, 563 U.S. 125 (2011).

4. Back before the district court, Sunrise filed a motion for summary judgment, in which the Ken-tucky Respondents joined, that addressed the merits of the Taxpayer Respondents’ Establishment Clause claim. However, rather than engaging with Sunrise and the Kentucky Respondents on the merits, the Taxpayer Respondents sought to settle this matter. They eventually entered into an agreement (the “Agreement”) with the Kentucky Respondents, and the district court dismissed the Taxpayer Respon-dents’ claims. See Pet. App. 43-82. The district court’s dismissal order incorporated the terms of the Agree-ment and retained jurisdiction to enforce the order. Pet. App. 44.

The Agreement imposes significant burdens on the Kentucky Respondents. For example, the Agree-ment requires the Kentucky Respondents to ask intrusive questions of children being placed with private child care providers, such as a child’s religious affiliation and whether the child desires to attend religious services or to observe religious holidays. Pet. App. 52. Additionally, the Agreement imposes onerous reporting requirements. As but one example, for a period of seven years, the Kentucky Respondents must disclose information to outside parties – namely, the American Civil Liberties Union (“ACLU”) and the Americans United for the Separation of Church and State (“AU”) – that the Kentucky Respondents learn

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about the religious preferences of children placed with Sunrise. See Pet. App. 63-64. But for the fact that the Agreement was incorporated into a consent decree, such reporting would violate Kentucky’s open records statute, which exempts from disclosure such personal information. KRS § 61.878(1)(a).

Sunrise appealed to the Sixth Circuit, challeng-ing the Taxpayer Respondents’ state taxpayer stand-ing in light of this Court’s Winn decision and objecting to the district court’s failure to treat its dismissal order as a consent decree. Pedreira v. Sunrise Chil-dren’s Servs., 802 F.3d 865, 867-68 (6th Cir. 2015) (hereinafter “Pedreira II,” located at Pet. App. 1-19). The Sixth Circuit dealt with Sunrise’s standing argument in cursory fashion. The court recognized that Winn abrogated Pedreira I’s holding that Flast’s nexus requirement does not apply to state taxpayer standing analysis. However, the court nonetheless affirmed the district court’s judgment based on Pedreira I’s alternative conclusion that Flast’s nexus requirement was satisfied. Pet. App. 9.

With respect to the Agreement, the Sixth Circuit held that the district court’s order incorporating the Agreement was in fact a consent decree and remand-ed this issue so that the district court could conduct a fairness hearing and consider Sunrise’s objections. Pet. App. 13-15. In so doing, the court “flag[ged] one concern” that the district court had not considered, but must consider on remand – in particular, that the Agreement “singles out Sunrise by name for special monitoring by the ACLU and [AU]; and in doing so,

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Sunrise argues, the decree subjects Sunrise to unique reputational harm.”3 Pet. App. 14-15.

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ARGUMENT

The Kentucky Respondents support Sunrise’s petition for certiorari because this case presents a question of exceptional importance and because the Courts of Appeals are divided on the meaning and scope of Flast.

Certiorari is warranted to reconsider whether paying taxes can be sufficient to inject the federal courts into disagreements over state fiscal policy. Flast answered that question in the affirmative, with important qualifications, nearly fifty years ago, but since that time, courts have struggled to apply Flast coherently. Indeed, this Court has tried to clarify Flast in one way or another almost a dozen times. But confusion persists. In fact, this Court has reined in Flast three times in the last decade, each time giving Flast a shorter and shorter leash. The tortured history of this case, which has entangled all three

3 Although a party to the now-vacated Agreement, the Kentucky Respondents find compelling the Sixth Circuit’s pointed concerns about the unfairness of the Agreement to Sunrise. See Pet. App. 13-15. As a consequence, the Kentucky Respondents no longer believe the Agreement can or should be enforced, thus necessitating this Court’s consideration of whether the Taxpayer Respondents have standing to continue prosecuting this lawsuit.

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levels of the federal judiciary in Kentucky’s fiscal affairs for more than fifteen years, provides this Court with an excellent vehicle to decide whether Flast is simply a failed experiment, or in the alterna-tive, whether Flast should be expanded to encompass state taxpayers.

Even if this Court is not ready to entertain these broader questions at this time, the Court should grant certiorari to resolve two conflicts between the Courts of Appeals about the meaning and scope of Flast. Twice in this case, the Sixth Circuit has con-cluded that Flast is satisfied as long as the Kentucky General Assembly knows that Kentucky’s executive-branch agencies are entering into contracts with Sunrise. Consequently, in the Sixth Circuit, state taxpayer standing exists even if a state legislature has not enacted an appropriation directing that public funds be spent in the manner objected to by the taxpayer. However, in Sherman v. Illinois, 682 F.3d 643 (7th Cir. 2012), and Freedom from Religion Foundation, Inc. v. Nicholson, 536 F.3d 730 (7th Cir. 2008), the Seventh Circuit unequivocally held that only statutory text that unambiguously directs the flow of public funds can furnish taxpayer standing. The Eighth Circuit reached a similar conclusion in Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406 (8th Cir. 2007). More fundamentally, the Sixth Circuit’s broad interpretation of Flast is at odds with the Seventh Circuit’s conclusion in Laskowski v. Spell-ings, 546 F.3d 822 (7th Cir. 2008), that Flast should

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not be expanded to new factual scenarios, including to forms of relief not considered in Flast. Certiorari should be granted to resolve either or both of these circuit splits.

I. FLAST SHOULD BE OVERRULED OR, AT A

MINIMUM, SHOULD NOT BE EXPANDED.

The Kentucky Respondents agree that certiorari should be granted to consider whether Flast should be overruled or, at a minimum, whether Flast should be expanded to apply to state taxpayers. Sunrise’s petition for certiorari amply demonstrates why certio-rari is warranted on both of these questions, and the Kentucky Respondents concur in full in that analysis. See Pet. 13-37. In sum, Flast’s irreconcilability with modern standing doctrine, its tendency to ensnare the federal courts in state-based fiscal policy disputes, and this Court’s increasing skepticism about Flast, collectively signal that the time has come to reconsid-er whether the general bar against taxpayer standing is subject to exception. These concerns also compel the Court’s consideration of whether Flast should be expanded to state taxpayers, a question this Court has never directly addressed.

Perhaps better than anything else, the lengthy history of this case demonstrates the necessity of reconsidering Flast. For the last fifteen years, the Kentucky Respondents have been forced to defend their decisions to contract with Sunrise. Thanks to Flast, all levels of the federal judiciary have been

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asked to pass judgment on what is, at bottom, an issue of state fiscal policy. To date, this matter has been before the district court twice, the Sixth Circuit twice, and this Court twice. Unless this Court grants certiorari to overrule or decline to expand Flast, this Article III oversight of Kentucky’s fiscal affairs will continue – perhaps through yet another trip through the district court, the Sixth Circuit, and this Court.

Significantly, fifteen years of federal judicial supervision has cast a pall of uncertainty over the Kentucky Respondents’ child care decisions. The Kentucky Respondents are responsible for ensuring that abused and neglected children in Kentucky’s custody receive essential care. This important task requires long-term planning, balancing costs and benefits, and prioritizing scarce resources. Yet, since 2000, these fiscal decisions have been second-guessed in the federal courts by individuals whose vague and only interest in this matter is their state tax bill. But for Flast, the Kentucky Respondents would have been able to make fifteen years’ worth of child care deci-sions without worrying about the federal courts looking over their shoulders.

This Court has recognized the gravity of these federalism concerns. In words that could have been written for this case, the Court in DaimlerChrysler Corporation v. Cuno, 547 U.S. 332 (2006), unani-mously warned that:

[B]ecause state budgets frequently contain an array of tax and spending provisions, any

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number of which may be challenged on a variety of bases, affording state taxpayers standing to press such challenges simply be-cause their tax burden gives them an inter-est in the state treasury would interpose the federal courts as “virtually continuing moni-tors of the wisdom and soundness” of state fiscal administration, contrary to the more modest role Article III envisions for federal courts.

Id. at 346 (quoting Allen v. Wright, 468 U.S. 737, 760-61 (1984)). These federalism concerns provide a compelling reason for the Court to consider anew whether Flast taxpayer standing, especially as ap-plied to state taxpayers, should continue to be the law of the land.

II. THE SIXTH CIRCUIT MISAPPLIED FLAST

AND CREATED TWO CIRCUIT SPLITS.

In addition to the questions presented by Sun-rise, the Kentucky Respondents ask this Court to decide the related question of whether the Sixth Circuit’s state taxpayer standing doctrine comports with Flast. This Court’s Flast jurisprudence estab-lishes that taxpayer standing turns on what the legislature says in the laws it enacts, not on what a legislature knows. However, twice during this case, the Sixth Circuit has determined that state taxpayer standing exists as long as a state legislature is merely aware that generally appropriated funds are being spent by the executive branch in the manner objected

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to by a state taxpayer. This alternative conclusion from Pedreira I, which Pedreira II adopted without change, substantially broadens Flast’s narrow rule.

This approach also marks the Sixth Circuit as an outlier among courts that have considered this issue. Contrary to Pedreira I and Pedreira II, the Seventh and the Eighth Circuits have held that Flast taxpayer standing turns on legislative text rather than legisla-tive awareness. These decisions cannot be reconciled with the Sixth Circuit’s legislative-awareness stan-dard. Further deepening this circuit split is that Pedreira II unmistakably extends Flast’s reasoning to permit a state taxpayer to seek remedies well beyond the injunctive relief against Congressional spending addressed in Flast. On this point too, the Seventh Circuit has held directly to the contrary.

A. This Court Has Limited Flast To Its Facts.

If there is a theme connecting this Court’s Flast’s jurisprudence, it is that Flast says what it says but stands for nothing else. This Court has instructed lower courts, with increasing bluntness, not to ex-pand Flast.

In Flast, the Court created a narrow exception to the general bar against taxpayer standing. Flast involved a federal taxpayer who challenged the Elementary and Secondary Education Act of 1965 as a violation of the Establishment Clause. 392 U.S. at 85-86. Notwithstanding the longstanding rule against federal taxpayer standing from Frothingham v.

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Mellon, 262 U.S. 447 (1923), the Flast Court created a two-part test for establishing taxpayer standing:

First, the taxpayer must establish a logical link between that status and the type of leg-islative enactment attacked. Thus, a tax-payer will be a proper party to allege the unconstitutionality only of exercises of con-gressional power under the taxing and spending clause of Art. I, § 8, of the Constitu-tion. . . . Secondly, the taxpayer must estab-lish a nexus between that status and the precise nature of the constitutional in-fringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is gener-ally beyond the powers delegated to Con-gress by Art. I, § 8.

392 U.S. at 102-03. By its terms, Flast only permits a taxpayer to challenge a “legislative enactment” or an “exercise[ ] of congressional power under the tax and spending clause.” Id. at 102. Flast was unequivocal on this point: “[I]t will not be sufficient to allege an incidental expenditure of tax funds in the administra-tion of an essentially regulatory statute.” Id. From its inception, then, Flast’s two-part test has distin-guished between legislative enactments, which can furnish taxpayer standing, and discretionary execu-tive actions, which cannot.

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This basic principle was underscored in Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982), where several taxpayers raised an Establishment Clause challenge to an executive official’s decision to transfer land to a religious college. Id. at 468-69. Even though federal law authorized the executive official to take the action, id. at 466-67, the Court refused to apply Flast because “the source of [the taxpayers’] complaint is not a congressional action, but a decision by [an executive official] to transfer a parcel of federal property.” Id. at 479. Consequently, Valley Forge teaches that a legislative enactment that merely allows for an executive official to take the action about which a taxpayer complains is insuffi-cient to confer taxpayer standing.

Valley Forge set the stage for Bowen v. Kendrick, 487 U.S. 589 (1988), a case in which an executive official carried out the decision that the taxpayers challenged, but Congress created, authorized, and mandated that decision. The statute at issue in Kendrick was the Adolescent Family Life Act, which provides grants to public and private nonprofit organ-izations. Id. at 593. Although an executive official administers this grant program, the program does not leave the executive branch with substantive discre-tion to choose winners and losers. Instead, the grant program specifically contemplates that federal grants should flow to religious organizations. Id. at 596 (citing 42 U.S.C. § 300z(a)(10)(C)). In light of this mandatory scheme, the Court found that Flast’s

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two-part test was met. Id. at 619-20. However, the Court was careful to emphasize that the grant pro-gram “is at heart a program of disbursement of funds pursuant to Congress’ taxing and spending powers” and that the taxpayer plaintiffs were “call[ing] into question how the funds authorized by Congress are being disbursed pursuant to the . . . statutory man-date.” Id.

This Court next decided Cuno, unanimously holding that Flast does not permit a state taxpayer to raise a Commerce Clause challenge. 547 U.S. at 349. In essence, Cuno cabined Flast to constitutional challenges brought by a taxpayer under the Estab-lishment Clause. See id. at 347-48. In drawing this line, the Cuno Court relied heavily on the federalism concerns that every state taxpayer lawsuit impli-cates. The federal courts, Cuno emphasized, must not become “ ‘virtually continuing monitors of the wisdom and soundness’ of state fiscal administration, contra-ry to the more modest role Article III envisions for federal courts.” Id. at 346 (quoting Allen, 468 U.S. at 760-61).

This Court followed Cuno with Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007), a case that entrenched Flast as a one-time-only deviation from the general rule against taxpayer standing. In Hein, federal taxpayers challenged the conferences held as part of President George W. Bush’s Faith-Based and Community Initiatives program (the “Initiatives”) as a violation the Establishment Clause. Id. at 592. The Initiatives, a plurality of this Court

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explained, were solely a creature of executive discre-tion:

No congressional legislation specifically au-thorized the creation of [the Initiatives]. Rather, they were created entirely within the executive branch by Presidential executive order. Nor has Congress enacted any law specifically appropriating money for these entities’ activities. Instead, their activities are funded through general Executive Branch appropriations.

Id. at 595 (internal citation, quotation marks, and ellipsis omitted).

In light of this executive-centric framework, the Hein plurality found that the taxpayer plaintiffs could not mount an Establishment Clause challenge. Although the plurality declined to overrule Flast, the plurality did stress that expanding Flast would “fail[ ] to observe ‘the rigor with which the Flast exception to the Frothingham principle ought to be applied.’ ” Id. at 603 (quoting Valley Forge, 454 U.S. at 481). Flast, reasoned the plurality, demands that the challenged expenditures be “funded by a specific congressional appropriation” and “disbursed . . . pursuant to a di-rect and unambiguous congressional mandate.” Id. at 604. The plurality viewed this reading of Flast as fully consistent with Kendrick, which “involved a program of disbursement of funds pursuant to Con-gress’ taxing and spending powers that Congress had created, authorized, and mandated.” Id. at 607

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(internal quotation marks omitted) (quoting Kendrick, 487 U.S. at 619-20).

The most recent in this Court’s line of cases involving taxpayer standing is Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011). There, state taxpayers challenged a legislative tax credit as a violation of the Establishment Clause. Id. at 129. Winn held that taxpayer standing was inappropriate because the taxpayers challenged a tax credit rather than a governmental expenditure, which was at issue in Flast. Id. at 142. Acknowledging that “it is easy to see that tax credits and governmental expenditures can have similar economic consequenc-es,” the Court nonetheless refused to extend Flast in light of the important differences between a tax credit and a governmental expenditure. Id. at 141-42. Winn thus echoes the theme from Hein: “It is significant that, in the four decades since its creation, the Flast exception has largely been confined to its facts.” Hein, 551 U.S. at 609.

B. The Sixth Circuit Ignored Flast’s Limi-

tations.

In Pedreira I and Pedreira II, the Sixth Circuit failed to honor this Court’s decades-long refusal to expand Flast. At both steps of the Flast test, the Sixth Circuit’s analysis unfolds as if the court were writing on a blank slate, without the benefit of Valley Forge, Kendrick, Cuno, Hein, and Winn.

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1. The Sixth Circuit Improperly Re-lied on Legislative Activities, not Enactments.

Beginning with the first step of the Flast test, the Sixth Circuit relied on three legislative activities that are fundamentally different from the express appro-priations that have been dispositive in this Court’s Flast jurisprudence.

First, the Pedreira I court observed that the Kentucky legislature has established a “regulatory structure to authorize the placement of children with private facilities.” Pet. App. 101. That may be; how-ever, the operative word in that sentence is “autho-rize.” But the regulatory structure is funded by general legislative appropriations for the operational budgets of the Kentucky Respondents, a point fun-damental to the standing analysis but one that the Sixth Circuit failed to discuss. The Kentucky statutes cited by the Sixth Circuit at most permit an execu-tive-branch agency to allow a private child care provider to care for children in Kentucky’s custody. See KRS § 200.115; KRS § 605.090(1)(d). Critically, this regulatory structure does not mention, much less mandate, that religiously affiliated child care providers like Sunrise should or even could be among the providers that care for children in Ken-tucky’s custody. See id. Since at least Valley Forge, this Court has made clear that a regulatory struc-ture like this one, which authorizes but does not require an executive official to act, does not qualify as a legislative enactment that satisfies Flast, i.e., a

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statute that unambiguously directs that public funds be spent in a certain, arguably unconstitutional, way. See Hein, 551 U.S. at 604; Valley Forge, 454 U.S. at 466-67, 479.

The second legislative activity upon which the Sixth Circuit relied is a “legislative citation” by one chamber of the Kentucky General Assembly that thanked Sunrise for its work. Pet. App. 101-02. The Taxpayer Respondents, the Sixth Circuit reasoned, have “show[n] that the Kentucky legislature itself was aware that it was funding [Sunrise] when it issued a legislative citation thanking [Sunrise] for its work with children.” Pet. App. 101-02. Pedreira I’s tortured logic on this point appears to be as follows: Because one chamber of the bicameral Kentucky legislature acknowledged Sunrise’s work, it necessari-ly follows that the entire Kentucky legislature must be aware that Kentucky’s executive-branch agencies enter into contracts with Sunrise and that Sunrise is religiously affiliated.4

Permitting a commendation by less than the full legislature to serve as a basis for taxpayer standing is unprecedented. The Kentucky Respondents can find no authority to support this leap of logic, and the Sixth Circuit provided none. See Pet. App. 101-02. To

4 As Sunrise’s petition notes, much of Sunrise’s work is not funded by Kentucky’s executive-branch agencies, undermining any implication that the commendation necessarily approved of public funds going to Sunrise. See Pet. 3.

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the extent there is authority, it holds to the contrary. Cf. INS v. Chadha, 462 U.S. 919, 944-59 (1983) (distinguishing between the act of a single chamber of Congress and binding legislation passed by “a single, finely wrought and exhaustively considered, procedure”); Hinrichs v. Speaker of the House of Representatives, 506 F.3d 584, 586, 598 (7th Cir. 2007) (differentiating between a rule that governs one chamber of a bicameral state legislature and a legis-lative enactment). To state the obvious, a commenda-tion by one chamber of a bicameral body is in no way comparable to a bill that is duly approved by the entire Kentucky General Assembly and signed into law by the Governor of Kentucky. Cf. Chadha, 462 U.S. at 944-59. This is especially true where, as here, the commendation consists of nothing more than generic praise of Sunrise and does not even mention either that Sunrise receives public funds from Ken-tucky’s executive-branch agencies or that it is reli-giously affiliated. See Pet. App. 163-64. Even putting these problems aside, the Sixth Circuit’s reliance on the commendation renders Hein a nullity. Hein requires a qualifying legislative enactment to be “a specific congressional appropriation” that disburses funds “pursuant to a direct and unambiguous con-gressional mandate.” 551 U.S. at 604. A commenda-tion, even if passed by both chambers, is neither of these things.

The third and final legislative enactment relied upon by the Sixth Circuit is a one-time appropriation to Sunrise, from five years after this case was filed,

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that paid for the construction of classrooms for chil-dren in Kentucky’s custody who are educated by Sunrise. Pet. App. 102. The Taxpayer Respondents do not challenge, and have never challenged, the con-stitutionality of this single appropriation. Yet the Pedreira I panel apparently reasoned that because the Kentucky General Assembly once appropriated monies to Sunrise for a discrete project, it necessarily follows that the legislature is somehow aware that executive-branch agencies have awarded and are continuing to award contracts to Sunrise. The Sixth Circuit made no effort to explain, nor could it have explained, how a one-time appropriation granted this level of insight to the Kentucky legislature about the day-to-day operations of the Kentucky Respondents. Regardless of the cogency of this line of thinking, it cannot be squared with Hein. A single appropriation that did not fund the contracts with Sunrise cannot possibly qualify as a “specific congressional appropri-ation” that disburses the challenged funds “pursuant to a direct and unambiguous congressional mandate,” as Flast requires. Hein, 551 U.S. at 604.

2. A Legislature’s “Awareness” Pro-

vides no Nexus Under Flast.

The Sixth Circuit’s application of the second prong of the Flast test is perhaps even more problem-atic. As explained below, the only rationale that can support the Sixth Circuit’s conclusion is that the required nexus between a legislative enactment and the alleged constitutional violation turns on whether

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the legislature knows about the challenged expendi-tures, not on whether the legislature ordered those expenditures.

Pedreira I found a sufficient nexus between the contracts with Sunrise and a legislative enactment because of “Kentucky statutory authority, legislative citations acknowledging [Sunrise’s] participation, and specific legislative appropriations to [Sunrise].” Pet. App. 105. Although the Sixth Circuit did not cite the legislative enactments to which it was referring, the only reasonable interpretation of this language is that the court was referring to the three legislative actions it discussed earlier in its decision.5 The Court’s lead citation for finding that these legislative activities created the necessary link to a constitu-tional violation was this Court’s decision in Kendrick. But Kendrick is not on point. Unlike the discretionary regime at issue here, the statutory scheme in Kendrick “not only expressly authorized and appro-priated specific funds . . . it also expressly contem-plated that some of those moneys might go to projects involving religious groups.” Hein, 551 U.S. at 608. More to the point, “Kendrick involved a program of

5 That said, the Sixth Circuit’s language indicates that there are “legislative citations [plural] acknowledging [Sunrise’s] participation” as well as “specific legislative appropriations [plural] to [Sunrise].” Pet. App. 105 (emphases added). Beyond the legislative activities discussed above, the Kentucky Respon-dents are aware of no other “legislative citations” or “specific legislative appropriations” to which the Sixth Circuit could have been referring.

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disbursement of funds pursuant to Congress’ taxing and spending power that Congress had created, authorized, and mandated.” Id. (emphasis added) (internal quotation marks and alteration omitted) (quoting Kendrick, 487 U.S. at 619-20).

This legislative trifecta of creating, authorizing, and mandating the alleged constitutional violation is not present here. Instead, the Kentucky legislature has simply enacted general appropriation bills that eventually are used to fund the Kentucky Respon-dents’ discretionary decisions to contract with child care providers, religiously affiliated or otherwise. Although the Kentucky legislature may have enacted the Kentucky Respondents’ general contracting authority, it has not created or mandated any con-tracting decisions, for nowhere does Kentucky statu-tory law indicate that the Kentucky Respondents must or even may contract with a religiously affiliat-ed child care provider. Whereas the legislature in Kendrick created, authorized, and mandated the challenged decision, the executive-branch agencies here made the challenged decision without any input or direction from the legislature. This distinction should have been dispositive of state taxpayer stand-ing (as it was in the context of federal taxpayers). See Hein, 551 U.S. at 605 (finding no nexus between the congressional action and the constitutional violation because the challenged expenditures “resulted from executive discretion, not congressional action”).

Pedreira I’s misapplication of Kendrick under-scores the Sixth Circuit’s underlying rationale for

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finding state taxpayer standing. Instead of focusing on what a legislative enactment says, the Sixth Circuit asked whether the legislature knows how generally appropriated funds will be spent. At base, the Sixth Circuit adopted a general legislative-awareness standard for establishing state taxpayer standing. The Pedreira I decision, which the Pedreira II panel adopted in relevant part, is susceptible of no other interpretation.

Starting with the language used by the Sixth Circuit, Pedreira I consistently asked what the Ken-tucky legislature knew about the Kentucky Respon-dents’ contracting decisions. For example, the Sixth Circuit remarked that “[a]ccording to the plaintiffs, Kentucky was well aware that it was funding [Sun-rise] and that its funds were used to fund religious activity.” Pet. App. 101 (emphasis added). The Pedreira I panel eventually adopted that very argu-ment, concluding that “the plaintiffs show that the Kentucky legislature itself was aware that it was funding [Sunrise].” Id. (emphasis added). This lan-guage leaves no doubt that legislative awareness was the Sixth Circuit’s focus for its state taxpayer stand-ing holding.

That legislative awareness is now the governing standard for state taxpayer standing in the Sixth Circuit is confirmed by the legislative enactments upon which the Sixth Circuit relied. To begin with, the Pedreira I panel characterized the commendation discussed above as “legislative citations acknowledg-ing [Sunrise’s] participation” in “Kentucky’s statutory

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funding for neglected children in private childcare facilities.” Pet. App. 105 (emphasis added). The only possible takeaway from this language, especially the italicized portion, is that the commendation is proof of the state legislature’s awareness that Sunrise receives public funds. In fact, as mentioned above, Pedreira I made this point rather directly earlier in the decision, explaining that “the plaintiffs show that the Kentucky legislature itself was aware that it was funding [Sunrise] when it issued a legislative citation thanking [Sunrise] for its work with children.” Pet. App. 101-02. Consequently, not only did the Sixth Circuit adopt a legislative-awareness standard, the court demonstrated how this novel standard should be applied.

Pedreira I’s discussion of the one-time classroom appropriation that Sunrise received serves as further evidence that the Sixth Circuit adopted and applied a legislative-awareness standard. On this point, the court explained that the classroom appropriation was one reason that “the Kentucky legislature itself was aware that it was funding [Sunrise].” Id. This one-time appropriation, the argument goes, allowed the Kentucky legislature to surmise that additional public funds were making their way to Sunrise. See Pet. App. 100-05.

In sum, the only way to read Pedreira I and Pedreira II is that state taxpayer standing exists if two things are true: (1) a state legislature generally appropriates money to an executive-branch agency; and (2) the state legislature is aware of how the

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agency may spend these generally appropriated funds. See Pet. App. 101-06. Going forward, then, trial courts in the Sixth Circuit will be forced to grapple with this novel standard, which reverses the course this Court has set for taxpayer standing. The task promises to be a messy one in light of the con-ceptual issues raised by this standard. Consider how a Sixth Circuit taxpayer might establish legislative awareness. If a legislative commendation by one chamber of the Kentucky General Assembly can serve as proof, what about a committee report that men-tions Sunrise? What about a statement by an employ-ee of Sunrise during a committee hearing? What about a speech by a legislator who played a meaning-ful role in a general appropriations bill? What about a speech by the Governor when he signed a general appropriations bill? Questions like this will plague courts and states within the Sixth Circuit until this Court provides needed clarity.

C. Pedreira Is The Outlier.

This legislative-awareness standard makes the Sixth Circuit an outlier among the other courts that have faithfully applied Flast and its progeny. The standard for state taxpayer standing adopted in Pedreira I and reaffirmed in Pedreira II has created at least two circuit splits about the meaning and scope of Flast.

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1. The Seventh and Eighth Circuits Require a Specific Appropriation for Taxpayer Standing.

First, the Sixth Circuit’s legislative-awareness standard directly conflicts with the Seventh Circuit’s unanimous decisions in Sherman v. Illinois, 682 F.3d 643 (7th Cir. 2012), and Freedom from Religion Foundation, Inc. v. Nicholson, 536 F.3d 730 (7th Cir. 2008), both of which held that taxpayer standing turns solely on whether a taxpayer is challenging a specific appropriation as opposed to a general, unre-stricted appropriation. The Eighth Circuit reached an analogous conclusion in Americans United for Sepa-ration of Church & State v. Prison Fellowship Minis-tries, Inc., 509 F.3d 406 (8th Cir. 2007).

Sherman involved a state taxpayer challenge to a lump-sum appropriation that eventually led to a grant for a religious group to restore “an enormous Latin cross.” 682 F.3d at 644-45. The Seventh Circuit took pains to emphasize the unconventional route by which this grant reached the religious group:

[U]nder Illinois’s “member initiatives pro-gram,” the General Assembly annually pass-es a lump-sum appropriation intended to fund the pork-barrel projects of individual legislators. After the appropriation is passed, caucus leaders decide how to distribute the money among individual members, who vie for funding for their local districts. Once these legislators receive their share of the appropriation, they function as “de facto

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legislatures” (or perhaps more accurately de facto executive agencies), each deciding for himself or herself which local projects to fund. The favored legislator then issues a di-rective to the [state executive agency], which is then supposed to distribute the grant mon-ies as instructed.

Id. at 645-46. A state taxpayer sued, claiming that this process gave him standing to challenge the grant to the religious group. Id. at 646.

Seeing “no reason not to apply [Hein] to state legislatures and executive officers,” the Seventh Circuit disagreed. Id. The court found dispositive the state taxpayer’s inability to “point[ ] to [a] specific and binding legislative action directing that [the grant] be disbursed to [the religious group].” Id. at 646-47. Using language that unequivocally forecloses a legislative-awareness standard, the Sherman panel held that “[i]t is not enough to say that [the religious group] was ‘specifically selected’ by the legislative leadership for the grant, as we see no room in the Supreme Court’s decisions for the Realpolitik ap-proach that [the state taxpayer] urges.” Id. at 647. Such a “Realpolitik approach,” Sherman emphasized, “is not tethered to any legislative text,” as required by Hein. Id.

Sherman’s single-minded focus on legislative text is incompatible with the Sixth Circuit’s legislative-awareness standard. Sherman teaches that legisla-tive activity other than a specific appropriation is irrelevant to the Flast inquiry, even if that legislative

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activity results in public funds being spent in the manner objected to by the state taxpayer. As the Sherman court put it, “[a] patronage-based process like the one apparently used in Illinois is a far cry from the ‘specific congressional appropriation’ that is analogous to the challenged action in Flast.” Id. (citing Hein, 551 U.S. at 603-04). Accordingly, under Sherman, legislative text is the beginning and the end of the Flast inquiry; however, in Pedreira I and Pedreira II, legislative text is barely even the starting point.

The Sixth Circuit’s legislative-awareness stan-dard also is contrary to the Seventh Circuit’s decision in Nicholson. There, the court considered whether federal taxpayers had Flast standing to challenge decisions by employees of the Department of Veterans Affairs (the “VA”) in administering a chaplain pro-gram at veterans’ hospitals.6 Id. at 731, 740-41. The court found that, in funding medical care at these hospitals, “Congress statutorily has directed the VA and, more specifically, the [Veteran’s Health Admin-istration (the “VHA”)], to provide medical care to eligible veterans as part of a congressionally mandat-ed spending program” and that the “VHA’s funding

6 The fact that Nicholson involved federal taxpayers does not distinguish Nicholson from Pedreira I and Pedreira II. Both the Sixth and Seventh Circuits have held that Flast’s two-part test governs regardless of whether a taxpayer plaintiff bases his standing on his federal or state tax bill. See Sherman, 682 F.3d at 646; Pet. App. 8-9.

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comes from annual congressional appropriations.” Id. at 741. However, Congress did not leave it at that; Congress also contemplated that the VA would pro-vide chaplain services. See 38 U.S.C. § 7306(e)(1) (“The Secretary may designate a member of the Chaplain Service of the Department as Director, Chaplain Service, for a period of two years, subject to removal by the Secretary for cause.”).

Despite Congress’s involvement in authorizing chaplain services at veterans’ hospitals, the Seventh Circuit nevertheless rejected the taxpayers’ assertion of standing, explaining:

Although Congress has mandated that the VHA provide medical care to veterans and, at least in a broad sense, it has contemplated that the VA generally will provide chaplain services, no specific congressional action mandates, requires or even intimates that chaplains be used in any particular way to accomplish this goal.

Id. at 741 (emphasis added) (internal citation omit-ted). This quotation, especially the italicized portion, is an unqualified rejection of the Sixth Circuit’s legislative-awareness standard. In Nicholson, Con-gress knew, and in fact expected, that the VA would provide chaplain services. Yet, notwithstanding Congress’s awareness of this fact, the Seventh Circuit reasoned that Flast had not been satisfied. The Seventh Circuit’s rationale for rejecting a legislative-awareness standard was straightforward: Hein required it. Relying on Hein, Nicholson explained

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that the taxpayers had “not shown that these appro-priations to the VHA ‘expressly authorize’ or ‘direct’ the specific expenditure about which [they] com-plain.” Id. at 742 (quoting Hein, 551 U.S. at 605). More to the point, there was no Flast standing because “the appropriations here . . . do not mention chaplains generally or the role that chaplains should play in the medical care that the VHA furnishes to veterans.” Id.

Further, unlike the analysis in Pedreira I and Pedreira II, Nicholson also correctly distinguished this Court’s decision in Kendrick, which was Pedreira I’s lead citation for finding state taxpayer standing. See Pet. App. 105. Nicholson emphasized that “the ‘key’ to Kendrick’s conclusion that Flast’s require-ments had been met was that the plaintiffs in Kendrick were challenging both ‘a program of dis-bursement of funds pursuant to Congress’ taxing and spending power’ and ‘how the funds authorized by Congress were being disbursed pursuant to the . . . statutory mandate.’ ” 536 F.3d at 744 (quoting Hein, 551 U.S. at 607) (alteration omitted) (emphases in original). Nicholson thus distinguished Kendrick because the legislative enactment that funded the chaplain program “does not contemplate that any funds would be disbursed to support the particular aspects of the Chaplain Service that [the taxpayer plaintiff ] contests.” Id. at 744-45.

The Sixth Circuit’s legislative-awareness stan-dard also diverges fundamentally from the conven-tional Hein analysis applied by the Eighth Circuit in

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Prison Fellowship Ministries. There, a state taxpayer challenged Iowa’s decision to provide public funds for a values-based residential treatment program at a correctional facility. 509 F.3d at 414-18. The Iowa legislature left no doubt about its intent, specifying that public funds should be used “for a values-based treatment program” at the correctional facility. Id. at 417. Applying Hein, the Eighth Circuit determined that Flast was satisfied because “the Iowa legislature made specific appropriations from public funds ‘for a values-based treatment program at [a correctional facility]’ when [the defendant] solely provided the program.” Id. at 420 (citing Hein, 551 U.S. at 604-05). The significance that the Eighth Circuit attached to the Iowa legislature’s “specific appropriations from public funds” cannot be squared with Pedreira I and Pedreira II. In the Eighth Circuit, a specific appropri-ation is the determinative component of the Flast inquiry; in the Sixth Circuit, by contrast, a specific appropriation simply is unnecessary.

Sherman, Nicholson, and Prison Fellowship Ministries together qualify as a forceful rejection of the Sixth Circuit’s legislative-awareness standard. After Sherman and Nicholson, a Seventh Circuit taxpayer must point to a legislative appropriation that specifically directs that public funds be spent in the manner he challenges. Prison Fellowship Minis-tries requires the same of an Eighth Circuit taxpayer. By comparison, after Pedreira I and Pedreira II, a state taxpayer in the Sixth Circuit need only estab-lish that the legislature knew that public funds were

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being spent in the manner he challenges. For this reason, a litigious taxpayer living in Indiana or Missouri would be well served to move to Kentucky or Ohio, where his Establishment Clause claims will be heard in the absence of a specific legislative appro-priation. This Court should grant certiorari to consid-er this circuit split and reaffirm that Flast requires a “specific congressional appropriation” with funds that were disbursed “pursuant to a direct and unambigu-ous congressional mandate.” Hein, 551 U.S. at 604.

2. The Seventh Circuit Limits Tax-

payer Relief to the Relief Sought in Flast.

Pedreira II also created a split among the Courts of Appeals over whether Flast’s rationale can be extended to new forms of relief not specifically sought in Flast. The Sixth Circuit’s legislative-awareness standard enabled the Taxpayer Respondents to seek relief via a consent decree that is far afield from the relief sought in Flast. The Seventh Circuit, by con-trast, has held that Flast only permits a taxpayer plaintiff to seek the relief sought in Flast.

In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), the Seventh Circuit unanimously concluded that Flast should not be extended to permit new forms of relief, no matter how minor or logical the exten-sion. Laskowski involved a congressional earmark for a grant to the University of Notre Dame. Id. at 823. Notre Dame submitted a grant application, which the

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Department of Education approved. Id. at 824. How-ever, “by the time the district court heard the [tax-payer plaintiffs’] case, the grant money had already been fully paid to Notre Dame and the one-time only earmark expired.” Id. Initially, a divided Seventh Circuit panel concluded that the taxpayer lawsuit was not moot because a court could directly order Notre Dame to make restitution for the unconstitu-tional grant. However, this Court granted certiorari, vacated the Seventh Circuit’s judgment, and remand-ed for reconsideration in light of Hein. Id.

Before the Seventh Circuit again, the court unanimously reversed itself on the availability of restitution as a remedy under Flast. The court changed course because Flast did not involve the authority of a court to order restitution; instead, the sole remedy at issue in Flast was a taxpayer’s ability to halt a congressional appropriation. Id. at 826-27. The court reasoned that “[a]fter Hein, the issue is no longer whether Flast might logically be expanded to include standing to pursue the restitutionary relief posited by our prior panel majority; the Supreme Court has now made it abundantly clear that Flast is not to be expanded at all.” Id. at 826 (emphasis in original). Underscoring this point, the Laskowski panel explained that “[t]he import of the plurality opinion [in Hein] is that the reach of Flast is now strictly confined to the result in Flast.” Id. at 827 (Court’s emphasis). Under Laskowski, if a taxpayer seeks relief beyond what was sought in Flast, then Hein forecloses taxpayer standing.

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Laskowski’s faithful application of Hein and Flast cannot be reconciled with the innovative approach to taxpayer relief in Pedreira II. Laskowski properly interpreted Flast as a limited deviation from the general rule against taxpayer standing that carries no broader consequences with respect to the remedies that a taxpayer plaintiff can seek. However, in Pedreira II, the Sixth Circuit allowed the Taxpayer Respondents to seek relief well beyond what the Flast plaintiff sought. To give two examples of many, the Agreement, which the district court adopted as a consent decree, would force the Kentucky Respon-dents to ask intrusive questions of children and would require the Kentucky Respondents to satisfy onerous reporting requirements including providing childrens’ confidential information to the ACLU and AU. Pet. App. 52, 63-64. Pedreira II thus allowed the Taxpayer Respondents to leverage their limited standing mandate from Pedreira I, awarded solely on the basis of pleaded allegations, to achieve broad, regulatory relief that is wholly unlike Flast’s remedy of halting a congressional appropriation. This Court should grant certiorari to reconcile this fundamental disagreement between the Sixth and Seventh Circuits and to determine whether Flast authorizes institu-tional reform consent decrees or merely authorizes spending injunctions.

This Court’s review also is necessitated by the federalism concerns raised by Pedreira II’s unbound-ed view of taxpayer relief. Beyond adhering to Hein, the chief virtue of Laskowski’s application of Flast is

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that the Seventh Circuit properly constrained the federal courts’ ability to fashion broad relief in tax-payer cases. By holding that a taxpayer plaintiff can only seek “injunctive relief against specific congres-sional appropriations,” Laskowski took off the table other, more intrusive remedies that would unneces-sarily interpose the federal courts in state fiscal policy. See 546 F.3d at 827. By comparison, under Pedreira II, the federal courts have carte blanche to fashion taxpayer relief, which, as this case has shown, can and does ensnare Article III courts in a state’s fiscal prerogatives. The far-reaching, intrusive relief endorsed in the district court’s consent decree amply demonstrates the peril of Pedreira II’s remedi-al approach. See Cuno, 547 U.S. at 346.

--------------------------------- ---------------------------------

CONCLUSION

For the foregoing reasons, the Court should grant certiorari and reverse the Sixth Circuit’s judgment regarding state taxpayer standing.

Respectfully submitted,

M. STEPHEN PITT General Counsel OFFICE OF THE GOVERNOR 700 Capitol Avenue, Suite 101 Frankfort, KY 40601 (502) 564-2611 steve.pitt@ky.gov

Counsel for Kentucky Respondents

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