Disagreement over argument time
on Sep 27, 2010 at 7:12 pm
The Supreme Court is pondering how to resolve who will be able to send lawyers to its podium on Nov. 3 to argue an important pair of cases on the constitutionality of state tuition tax credits to parents who send their children to parochial schools. The Justices have before them several competing proposals from the parties. One proposal would have the federal government taking the place at the podium of one of the groups that actually got its case accepted for review, even though the U.S. is not directly involved in the cases as a party.
The Court on May 24 agreed to hear, in the new Term that starts next week, two petitions raising separate issues about the Arizona program. One of those was filed by the state of Arizona, defending the constitutionality of the program against the claim of taxpayers in the state that, because most of the parents opt to send their children to religiously affiliated schools, the program has the effect of promoting religion. That case is Garriott v. Winn, et al. (docket 09-991). The other was filed by one of the private but state-supervised groups that provide scholarships for students to attend private schools, with donations from parents who then get a credit on their state taxes; that petition contends that the taxpayers had no right to bring their challenge at all, since they are not harmed in any way and, besides, the program is said to be one of pure private, parental choice, not involving any state spending. That case is Arizona Christian School Tuition Organization v. Winn, et al., (09-987).
Since the Court agreed to take two cases, one on each issue, but joined them for only one hour of argument, it was expected that the state and the Tuition Organization would divide up the time of argument on their side of the case — that is, divide 30 minutes. The Winn challengers would get 30 minutes on their side.
On July 1, the Tuition Organization asked the Court to give its lawyer 10 minutes to argue the right-to-sue, or “standing” issue, and to give the state’s lawyer 20 minutes to argue the merits of the constitutional issue. (If the Court were to agree ultimately with the Tuition Organization that the taxpayers do not have standing, then the constitutional issue probably would not be decided.) The Tuition Organization told the Court that the state had consented to that allotment of the 30 minutes.
On Aug. 6, however, the U.S. government entered the case, as an amicus supporting both the state and the Tuition Organization, and arguing that the Ninth Circuit Court was wrong in finding “standing” for the state taxpayers and wrong in striking down the program. Then, on Sept. 3, the Justice Department and the state of Arizona filed a joint request to the Court: divide the argument on the Arizona side of the case, giving the state lawyer 20 minutes to argue the merits and a federal lawyer 10 minutes to argue the “standing” issue. It noted that the state, unlike the Tuition Organization, does not dispute the taxpayers’ standing, so, the joint motion said, a lawyer should be given time to argue that, and it would be appropriate for that to be a federal lawyer since the government and federal officials are frequently sued in church-state cases in which the challengers are taxpayers.
The Tuition Organization, the motion said, has “a case-specific interest” in how the “standing” issue is applied in this instance, but the federal government can provide the “broad perspective” of a frequently sued litigant facing taxpayer challenges.
Six days later, the Tuition Organization came back with a new proposal — with two alternatives. First, it suggested that the Court add five minutes of time to the Arizona side, with ten minutes to the Tuition Organization, 15 minutes to the state, and 10 minutes to the federal government. If the Court preferred not to add five minutes, it said, each of the three entities should get 10 minutes. But, further, if the Court does not want to have three lawyers on one side of the case, with no added time, then the Tuition Organization should get ten minutes and the state 20, “as previously agreed to” by the state and the Tuition Organization.
That group said it welcomed the federal government and its request for argument time, and argued that the best way to include it would be the first suggestion — add five minutes to the Arizona side. In no event, it argued, should the federal government take the place of the Tuition Organization, whose petition was granted along with the state’s. That would be the effect if the state-Justice proposal were granted, shutting out the Tuition Organization. It made its own argument that it would be the better one to argue the “standing” issue.
Finally, on Sept. 15, the state and the federal government responded, saying they do not oppose a spot in the argument for the Tuition Organization, but noted that the state opposed any resolution that would reduce its argument time, as some of the Tuition Organization suggestions would do. The reply also suggested that, if only two lawyers are going to be allowed on the Arizona side, then the state should have 20 minutes and the federal government 10.
The reply said that the state of Arizona had only “conditionally consented” to the Tuition Organization’s July 1 proposal that they divide argument time, and had said that that motion was “premature” because the parties did not know then whether the federal government would get involved.
The ultimate choice, of course, will be for the Court, if the three entities cannot work it out on their own.
