IN THE SUPREME COURT OF THE STATE OF OKLAHOMA INDEPENDENT SCHOOL DISTRICT NO.

5 OF TULSA COUNTY, OKLAHOMA, a/k/a JENKS PUBLIC SCHOOLS, and INDEPENDENT SCHOOL DISTRICT NO. 9 OF TULSA COUNTY, OKLAHOMA, a/k/a UNION PUBLIC SCHOOLS, ) ) ) ) ) ) ) ) Plaintiffs/Appellees, ) ) vs. ) ) RUSSELL SPRY, STEPHANIE SPRY, ) TIM TYLICKI, KIMBERLY TYLICKI, ) TIM FISHER, KRISTIN FISHER, STEFAN ) HIPSKIND, STEPHANIE HIPSKIND, ) JERRY SNEED, and SHANNA SNEED, ) ) Defendants/Appellants. ) E. SCOTT PRUITT, OKLAHOMA ATTORNEY ) GENERAL, ) ) Appellant.

Case No. 110694, consolidated with Case No. 110693

APPELLEES' OBJECTION TO THE APPLICATION OF THE ARCHDIOCESE OF OKLAHOMA CITY AND GOOD SHEPHERD CATHOLIC SCHOOL FOR PERMISSION TO SUBMIT AMICUS CURIAE BRIEF Plaintiffs/Appellees, Independent School District No. 5 of Tulsa County, Oklahoma, a/k/a Jenks Public Schools, and Independent School District No. 9 of Tulsa County, Oklahoma, a/k/a Union Public Schools, respectfully submit their objection to the application of the Archdiocese of Oklahoma City (the "Archdiocese") and Good Shepherd Catholic School ("Good Shepherd") to file a brief as amicus curiae. By order entered on May 31, 2012, the Court set a briefing schedule in the case, directing the Appellants to file their additional briefing by June 15, 2012, and directing the Appellees to file their response briefs by June 29, 2012. On June 12, 2012, the Archdiocese and Good Shepherd filed their application under Rule 1.12 requesting the Court grant them leave to submit

a brief as amicus curiae on behalf of the Appellants regarding the constitutionality of the "Lindsey Nicole Henry Scholarships for Students with Disabilities Program Act," OKLA. STAT. tit. 70, §§ 13-101.1 and 13-101.2 (2011) (hereinafter referred to as "Scholarship Act"). As the Appellees explained in their Response in Opposition to Defendants/Appellants' Motion for Briefing on Appeal, filed in this matter on May 25, 2012, the Appellees believe the parties thoroughly briefed all of the issues presented on this appeal in their summary judgment briefs in the district court. Although the Court has authorized the parties to file additional briefs, the Appellees do not believe that amicus curiae briefs will be of assistance in the decision of this appeal. Rather than assisting the Court, the Appellees believe that a profusion of amicus briefs from advocates for competing special interests would lead to confusion of the issues and make the Court's job more difficult. Rule 1.12(b)(1) requires that an amicus curiae's application "concisely disclose[] the nature and extent of the applicant's interest, state[] any facts or questions of law which may not be presented adequately by the litigants, and the relevancy of these facts or questions of law to the disposition of the cause." Upon review of Rule 1.12, the Appellees request that the Court deny the Archdiocese and Good Shepherd the opportunity to file a brief as amicus curiae in this matter because: (i) the Archdiocese and Good Shepherd's statement of interest identifies issues of standing under the United States Constitution and whether the Oklahoma Constitution violates the Supremacy Clause of the United States Constitution, issues that were not raised in the district court and have absolutely no bearing on the outcome of this case; (ii) the Appellants are in the position to argue the First Amendment issue, as they did in the district court; and (iii) the Archdiocese and Good Shepherd's application is untimely under Rule 1.12.

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In paragraph 5 of their application, the Archdiocese and Good Shepherd state they want to address (a) whether the Plaintiff/Appellants "have standing under the United States Constitution," (b) whether the district court's ruling violates the First Amendment, and (c) whether the Oklahoma Constitution violates the Supremacy Clause. The Plaintiff/Appellees did not raise any claims based on the United States Constitution. Accordingly, they were not required to establish standing under Article III of the United States Constitution, as the Archdiocese and Good Shepherd apparently believe. The Plaintiff/Appellees based all of their challenges to the Scholarship Act on the Oklahoma Constitution, and they sought a declaratory judgment pursuant to Oklahoma law. The Plaintiff/Appellees' standing to bring this action is governed solely by Oklahoma law, not federal law. Oklahoma's Declaratory Judgment Act, OKLA. STAT. tit. 12, §§ 1651-1657, provides at § 1651 that "[d]istrict courts may, in cases of actual controversy, determine rights, status, or other legal relations ...." The Scholarship Act diverts funds from public school to private schools, including sectarian schools, in violation of the Oklahoma Constitution. The Plaintiff/Appellees alleged that the Appellant Parents were using the Scholarship Act to adversely affect the funding of every school district in the state, including the funding of the Plaintiff/Appellees. In Independent School District No. 9 of Tulsa County v. Glass, 1982 OK 1233, ¶ 1 1, 639 P.2d 1233, 1238, this Court held that a public school district's interest in protecting its revenues satisfies the requirement that a party have a legally protectable interest in order to be entitled to seek declaratory relief. This Court has repeatedly ruled that "a declaratory judgment is an appropriate remedy when a person is adversely affected by an invalid statute and is threatened with its enforcement." Southwestern Bell Telephone Company v. Oklahoma Corporation Commission, 1994 OK 142,

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7, 897 P.2d 1116, 1118. In addition, this Court has emphasized that "the declaratory judgment statutes are to be liberally construed to obtain the objective of expediting and simplifying the ascertainment of uncertain rights." Barzellone v. Presley, 2005 OK 86, If 10, 126 P.3d 588, 592, n.16. By challenging the right of the Appellant Parents to benefit from a legislative enactment that violates the Oklahoma Constitution, and by pointing out that Appellant Parents use of the Scholarship Act injures all public school districts, including the Plaintiff/Appellees, the Plaintiff/Appellees demonstrated that this case presents an actual, justiciable controversy under Oklahoma law. Standing under Article III of the United States Constitution, which the Archdiocese and Good Shepherd assert they want to address, has nothing to do with this action. The Archdiocese and Good Shepherd also state that they desire to address whether the district court's judgment violates the First Amendment. The Appellant Parents raised this argument in the district court, and the Plaintiff/Appellees responded by showing that the United States Supreme Court has rejected claims that enforcement of "no funding of religion" clauses, like Article II, Section 5 of the Oklahoma Constitution, violates the United States Constitution. In Locke v. Davey, 540 U.S. 712 (2004), the Supreme Court considered whether the no funding of religion clause of the Washington Constitution conflicted with the Free Exercise Clause of the United States Constitution. The Court explained that although the Establishment Clause permits states to provide government funding to religious organizations in certain circumstances, the Free Exercise Clause does not compel the states to do so. Id. at 719. The Court held that state constitutions do not violate the United States Constitution merely because they draw "a more stringent line" than does the United States Constitution with regard to the public funding of religious activities. Id. at 722.

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The Archdiocese and Good Shepherd state that they want to address whether the Oklahoma Constitution violates the Supremacy Clause. This issue was not raised in the lower court. Moreover, Locke v. Davey makes clear that the Supremacy Clause does not prohibit state constitutions from placing more restrictions upon the use of public funds to benefit sectarian organizations than does the United States Constitution. Finally, assuming that the Archdiocese and Good Shepherd's application complies with Rule 1.12(b), their brief would be untimely under the Court's briefing schedule. Rule 1.12(d)(1) states that a brief amicus curiae "must be filed within the briefing cycle set for the party supported," and the rule is clear that "[t]he assignment and disposition of a cause will not be delayed pending action on a motion for leave to file an amicus curiae brief or to await the filing of a brief amicus curiae." Rule 1.12(d)(1) further requires that "extraordinary cause . . . be shown before an amicus curiae will be permitted to file a brief at any time other than during the normal briefing cycle[.]" [emphasis added]. The Archdiocese and Good Shepherd filed their application on June 12, 2012. The brief of the Appellant Parents was filed in this matter on June 15, 2012. In order to comply with Rule 1.12 and the Court's briefing schedule, the Archdiocese and Good Shepherd should have sought leave from the Court to file an amicus curiae brief well before June 12, 2012. Further, a review of their statement of interest reveals no "extraordinary cause" for the Court to allow for an amicus curiae brief to be filed outside the June 15 briefing deadline. Thus, the Appellees would request that the Court deny the Archdiocese and Good Shepherd the opportunity to file an amicus curiae brief outside the current briefing schedule for failure to comply with Rule 1.12. For the reasons set forth herein, the Appellees request that the Court deny the Archdiocese and Good Shepherd the opportunity to file an amicus curiae brief in this matter.

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Respectfully submitted, ROSENSTEIN, FIST & RINGOLD

by as Mann, BA #5 derick J. Hegenbart, OBA #10846 Karen L. Long, OBA #5510 Jerry A. Richardson, OBA #10455 525 S. Main, Suite 700 Tulsa, OK 74103 (918) 585-9211 (918) 583-5617 facsimile rrfrlaw.com dougmitD E-mail:
fredhra-)rfrlaw.com ka ren1(&,rfrlaw. coin jerry ria)rfrlaw. co m

ATTORNEYS FOR APPELLEES

CER ICATE OF MAILING I hereby certify that on the day of June, 2012, I caused a true and correct copy of the above and foregoing instrument to be mailed, via certified mail, return receipt requested, with sufficient postage prepaid thereon, to: Andrew W. Lester Matt Hopkins Carrie L. Vaughn
LESTER, LOVING & DAVIES,

PC

Eric S. Baxter The Becket Fund for Religious Liberty 3000 K Street NW, Suite 220 Washington, D.C. 20007

1701 South Kelly Avenue Edmond, Oklahoma 73103 Patrick R. Wyrick Solicitor General Oklahoma Office of the Attorney General 313 NE 21 st Street Oklahoma City, Oklahoma 73105 Tai Chan Du 3324 North Classen Boulevard Oklahoma City, Oklahoma 73118

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Steven K. Balman
FELDMAN, FRANDEN, WOODWARD & FARRIS

William H. Hickman Brad S. Clark
HICKMAN LAW GROUP

2 West 2nd Street, Suite 900 Tulsa, Oklahoma 74103 Andrea R. Kunkel Ryan Owens 2901 N. Lincoln Blvd. Oklahoma City, Oklahoma 73105 Ryan D. Kiesel American Civil Liberties Union of Oklahoma Foundation 3000 Paseo Drive Oklahoma City, OK 73103

119 N. Robinson, Suite 300 Oklahoma City, Oklahoma 73102 Julie Miller Stephanie Mather 2801 N. Lincoln Blvd., Ste. 125 Oklahoma City, Oklahoma 73105 William S. Price
PHILLIPS MURRAH

P.C. Corporate Tower, Thirteenth Floor 101 N. Robinson Oklahoma City, OK 73102

by depositing it in the U.S. Mails, postage prepaid.

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