three minutes you know thank you my client sun rises a nonprofit carob organization that provides food shelter housing education  medical services for use in the collective children all through the state of kentucky this it's appealing this case from the order of the district court for two fundamental reasons to two fundamental reasons why that order should be vacated and the case for a mandate for dismissal or a ruling on our summary judgment motion the first is is standing which is a is a as a matter of subject matter jurisdiction and the second is the court's error in entering the order that it did disposing of the case while our motion for summary judgment was pending and had been pending for some twenty months at the time that order was in or is this court is no doubt well aware in the last ten years or so the supreme court has said repeatedly the lower course admonished them to be rigorous amount subject matter jurisdiction and rigorous about standing in particular the most recent case on that point by the supreme court in the context of the stablish macaws case like we have here is the arizona versus when case and if you bear with me i'd like to make a brief quote from that case because it's very apt it says in an era of frequent litigation class action sweeping injunctions with prospective effect and controlling jurisdiction and continuing jurisdiction to enforce judicial remedies court courts must be more careful to insist on the formal rules of standing not less unquote the that describes this case to a t that describes the lower court's order to the t the the district court in we're talking about taxpayer standing we are talking about taxpayer standing in the context of an establishment clause case and that of course taxpayer standing is the most limited the most narrow form of standing there could ever be it's a very very narrow exception to the general rule the taxpayers never have style and i mean before we go into sort of you know first principles about taxpayer standing obviously our panel of our court and published decision said the plaintiffs have standing taxpayer standing to bring this establishment clause claim right binding precedent absent the supreme court bring down new authority that invalidates i guess your argument as well that the when case requires the nexis determination in addition to the first prong flap flast right but our panel did make a nexus determination so you know i don't know how then you're asking us to slice this but we have a panel that made the very determination you're saying was necessary it's more than just the wind case i think it's important to understand that the supreme court has said over and over again standard is not dispensed in gross i know but the first panel knew all these you know almost platitudes of standing well what i'm suggesting though is that we have a different case that we two thousand because of a different stage of the case different state cases reevaluating luan we want says you look at you know there's a different showing necessary but this case doesn't really seeing it doesn't seem to make much difference here correct me from wrong ok they're pointing to a resolution by the kentucky house that post nachman that seemed to  recognize that commended your client for their work and they're pointing to basically an earmark that was also posting back then and those two things aren't i mean those are the two things that they give rise to the those facts are not going to change unlike a case where there might just be an allegation you know like lu han that i have every intention of going to a particular country to see the wildlife there allegation and pleading is good enough at the twelve the six stage now or at summary judgment let's take a deposition and really find out whether you intended to go to that country that the evidence changes in that kind of those kinds of factual here we're not going to have a trial about whether this kentucky resolution happened whether the earmark happened that's a static thing and that has not that is the basis of taxpayer standing according to the earlier panel that has not changed one iota from the earlier stage to this one so it just doesn't seem to matter unless i'm missing something with respect i think you are first of all that's where we end comes in and repudiate both problems of  the same way on stage to last in this panel in the earth not this panel but the earlier panel didn't apply the nexus task the same way it didn't look at the spending legislation which is the really the impetus for taxpayer standing it looked at these other legislative actions the din having to do with the spending legislation being challenged i'd also point out your honor that but the original panel dealt only with the one of the three level levels of standing the injury thing that's where the nexus analysis comes in at the injury prong what we still have to deal with since we're beyond the pleading stage is causation and redoubts redux ability and when you examine causation and regress ability in the context of the district court's order we see that there's a disconnect between the order and ordered you to do that you are bound by at this point as i understood it both parties made motions to dismiss and they said they granted that you theirs didn't grant yours but the case has been dismissed as to you hasn't it that well only and can a very theoretical sense the dismissal i seek would literally in the case that they're quote unquote dismiss perpetuates the case for at least the next several years but against you or against the state that is the if if a court stas something wrong between a and b c can't come in and say you did it wrong and if you're dismissed out of the case the order requires the state to greet my client differently than everyone else for his glory reasons we submit and subjects as to that special punitive treatment for the next seven year will it be subject to the state to it i mean isn't your problem or it was in your remedy to sue the state in other words again if a court makes an order between a and b for example let's say that between a and b they say that the state of kentucky you know will no longer grant tobacco licenses of some sort and if that puts the state in a position of damaging you then you sue the state if the i would agree with your honor if this was a private agreement just between the state and the plaintiff but this had the imprimatur of the court this has  ongoing monitoring by the court ongoing monitoring by our adversary in this very litigation we're we don't get to participate in the state's program on equal terms and it's because of the district court's order that that's true not just a private agreement between the plaintiffs and the and the state so for example what happens is that without any shred of evidence that there's anything amiss all of sunrise record does this order say you shall give records to somebody is its records that we would be pretty doing in the ordinary course of business into the state if you got the business if we got the business but the part of the problem because the we're under that special kind of scrutiny that regime of scrutiny that no other provider is under than the state obviously has a tremendous incentive not to give us the business what i mean what issues are we talking about right case has been dismissed as to you i think were harmed in three ways one we have to our records have to be maintained in a way that to satisfy our adversaries and litigation nobody else if you contract with the state yes i mean this this goes to my my my analogy is if if a court for whatever reason somebody comes in and says tobacco are bad we're going to sue the individual people in logan county and for whatever reason the court says ok the state will grant no licenses in logan county if the state agrees to that and that violates the law they sue the state they can't interfere with the court case to which they're no longer a party well we can because we have been a necessity a party to this case for the last fifteen years the plaintiffs themselves made us a party to this case because they knew we were indispensable they knew that any relief they sought against the state would directly impact us that's why we have been in this case from day one and in gay and and provided the laboring or for its defense on the organon just fourteen years in this case i'm sorry and used i mean this case went on for fourteen something years it's right now it was filed in two thousand and what what went on for all that time before you followed your motion for summary judgment well there were two appeals oh we don't have an objective neutral independent assessment of our performance by the state by or an independent third party monitor it's the it's our adversaries in it please the court i'm stanton jones i represent the plaintiffs and i'm also arguing today on behalf of the commonwealth defendants plaintiffs and the commonwealth offend and settled the only claim in this case and voluntarily dismissed the case bringing an end to more than a decade of contentious and complex litigation plaintiffs and the commonwealth are fully committed to implementing the settlement which already has been in effect for nearly a year since all private child care providers across the state of kentucky including sunrise executed the modified p c c agreements last year including the new terms described in the settlement the settlement we believe is preventing and will continue to prevent the improper use of state funds to aid the religious indoctrination children in the commonwealth custody i understand that care speaks to redress ability i suppose but i mean let's let's kind of go to the some of the other issues relating to whether this consent decree whether it's fair that cetera i can sympathize with sunrise frustration that they go through there they have these ak is accusations made against them about improper proselytizing etc they they actively dispute vigorously dispute those allegations over litigation that has run for fourteen years they fully briefing a motion for  summary judgment which they think would vindicate them and spare them the sorts of burdens that they have now a settlement they are a party to this case a settlement is reached between the plaintiffs the state which over their objection over sunrises objection which singles out sunrise for what they say are onerous and sort of almost humiliating reporting conditions the a c l u i believe starts issuing press releases saying how great it is that sunrise is more or less been put in its place and and now and they had never they they never had an answer they were never able to get an answer on the merits about whether their conduct was wrong and now they're suffering reporting harm and there's they've suffered reputational harm which is perpetuated every time somebody gets up and says we've stopped the wrongdoing why isn't that why doesn't that raise a fairness issue that the district court perhaps should revisit a little more closely to raise the number of points that i can address first of all the litigation was longstanding both because of the multiple lengthy appeals and the time that the case was pending at the supreme court magistrate judge also reluctantly concluded were his words in the two thousand and eight order that sunrise had adopted a litigation strategy of minimizing disclosures and maximizing objections and of carefully conceived delay consistently resisted disclosing virtually any information in discovery and engaged in a pattern and practice of unnecessary delay so i don't think it's fair to say that the litigation went on for a long time and now sunrise is entitle to continue forcing us to litigate it under those conditions the you mentioned the fact that the settlement agreement in one i think a relatively minor way does impose a does speak to sunrise in a way that's not shared with all providers all of the substantive requirements of the settlement agreement all of the modifications to the p c c agreement of the monitoring the creation of documentation and monitoring by the commonwealth all of those provisions are common to all private childcare providers across kentucky including sunrise the only the only very narrow issue that specific to sunrise is that for a limited period the commonwealth will will share with plaintiffs as counsel the monitoring materials that the commonwealth receives from sunrise and could that be attacked by a lawsuit by the other side of the state has agreed to create a disadvantaged class of one is there any that they couldn't bring that suit against kentucky i haven't ever heard that anyone has considered it so i haven't given thought to it i don't think that the suit would have legs but they  certainly could try and i think that that would certainly be a more appropriate avenue to object to the commonwealth sharing that information with the plaintiffs counsel than the objections that they've raised here you know he's me you could certainly make a decent privacy argument even though you have something involving small children where you have people dealing with the state and then the state turns it over to a private party so i'm not there litigation counsel but i'm trying to get the procedural posture here do you know everybody seems to want to fight about the big issue maybe i'm the only one fits but do you make a point that they really don't have any dog in this fight anymore i mean the people do consent decrees that are wrong and evil but not everybody can sue about them in the same case or is that is this just something that's a problem of mind you know that that's correct i don't i think it's fair to say sunrise doesn't have a dog in this against sunrise no claims brought by sunrise why were they brought in as a necessary defendant found when they were named as a rule nineteen party and they never sought to get out of the case on the theory that they weren't a real nineteen party necessary party one of the forms of relief sought in the complaint was to block the state funding of sunrise and so that was the reason that they that they were named and again they never contested that they were in but i mean surely de facto they are they are i mean they are affected by this settlement agreement slash order i mean they defacto i mean they have to comply they have to do this reporting stuff they have to do these exit interviews etc they have to do all that stuff or else they're out of business they have to do those things because they entered into the modified peace agreement with the common law again the settled and agreement doesn't impose any requirement as judge simpson recognized it doesn't impose any requirement on sunrise or any other private childcare provider in kentucky all sunrise like all other sees throughout the entire state it needs to comply with its its government contracts its p c c agreements with the with the commonwealth so what's your position that all of the record keeping and information gathering in the form of interviews and so on that is described specifically just as to sunrise in the settlement agreement is already already sunrise is already required to words this is when you say everybody's had to do this it's not the same things that they had to do before the settlement agreement do you keep referring to the modified p c c the modified p c c was modified because of consent to agree yes that's ok or the settlement agreement so ok i mean that's both of these things are i don't think i was less clear on that so i mean then then that consent decree one could argue the care to children through private providers including to make modifications to the p c c agreement that the commonwealth in between the time when the settlement agreement was executed in two thousand and thirteen and  last spring the commonwealth made those changes to the piece p c c agreements made various other changes updating databases of preparing exit interview forms questionnaires first social workers to conduct annual interviews with children about their religious experience at private childcare providers and various other documentation and then last spring all private childcare providers statewide executed the new p agreement and it became effective last july are there any providers that have refused to do that you don't have the right to ask us for for example but my understanding is that there was one relatively  small private childcare provider last year that cannot execute the modified p c c or them and i don't i don't know specifically what the reason was but there was one of the smaller one version they've not brought any litigation over the as far as you know to my knowledge no this thing sure looks like a consent decree i mean we have an agreement between the parties one of whom is state that is that is transformed into a court order yes it says you can't bring a motion for contempt but i think that you could bring a motion for specific performance perhaps and if that is granted and they don't perform  you can move for contempt then perhaps i mean i don't see that it's not terribly difficult to get around probably so why why isn't this in fact a consent decree first and foremost the the issue is really up and down because even if you were to treat the settlement agreement in the court's order of dismissal incorporating it as a consent decree ory defacto consent decree or tantamount to a consent decree as sunrise has described it judge simpson already considered the factors for court approval of his consent decree exercised his discretion and properly so to to approve it and to incorporate the settlement into the order of dismissal he addressed the various standards under the local ninety three case relating to ok no i understand i understand that argument let's set that aside you know you may or may not be right about the import of this sort of alternative holding why isn't it a consent decree so it isn't a consent decree for a couple of reasons first the feature of consent decrees that  violations of them are violations of a court order subject to contempt and we have a violation of court order part because it is an order this this court order by virtue of the settlement agreement explicitly dis any content remedies civil or criminal or violation of the parties is so that the commonwealth defendant and the plaintiff his sole purpose in asking the district court to incorporate the settlement into the order of dismissal was simply to preserve ancillary enforcement jurisdiction under the kukkonen line of cases ancillary enforcement jurisdiction to allow the parties in the event of a dispute over the settlement agreement to bring that dispute into federal court as opposed to taking the dispute to state court which is what you would otherwise have to do for just a run of the mill breach of settlement contract so i guess i mean what happens let's say they just kentucky says you know what we're done given you the sunrise records we just we think it's wrong we think it's violation of equal protection we're done what happens walk me through what would happen so first the settlement agreement set forth a series of mandatory informal dispute percenters beginning with notice and an opportunity to cure followed by mandatory mediation and this is between the state and who you're the a c l u or this is between the state and the plant and the plaintiffs the to to bring a motion to enforce a settlement agreement and limits relief precludes any sort of contempt sanction and limits relief exclusively to specific performed at the settlement to be so they get a specific performance or state refuses to perform what happens this then the state would be included in terms of the of a court order it wouldn't be in contempt of the court's order of dismissal in this case it would be in contempt a court order specifically enforcing a contract just the way that any party that breaches a contract and refuses to i mean i guess i'm just suggesting this thing is set up to function no different from a consent decree you have to go through the arbitration mediation stuff for mediation i grant you that but otherwise this this business about no contempt it's it's a fiction i mean it's just not really the way this is going to work it works just like a consent decree right i see my time is up that's all that's ok sure of course so so i think it's different in another way also which is that  involve some sort of ongoing active judicial monitoring or supervision this does not cause this agreement an order doesn't contemplate any sort of active role the courts the district court's role is limited exclusively to hearing a motion brought by one of the parties for breach of the settlement agreement and entering an order of specific performance i think that's that's different than most consent decrees in addition to eliminating the opera the opportunity to pursue contempt and again back to our most important point on this is just that the question of whether it is a court in forcible settlement or it can consent i mean it or is that is academic because we meet the standards there isn't isn't the and help me here if i'm wrong that in some ways isn't the oversight by your clients likely to be more direct than vigorous than in the consent decree where the court the courts oversight may or may may or may not have things to do and then you have to go to court initially to try to get oversight here by the agreement you have direct oversight over what the state is doing i don't know if i would presume to say we will do a better job than a court would do i didn't say better i said more vigorous but we do intend to review the material that we receive from the commonwealth and and to enforce the settlement agreement if the need arises  to dictate what the court's jurisdiction is dictate limitations on the court's jurisdiction and that's what they're trying to do they're trying to have the benefits of a court order and then constrain the way the law which the court might force t order that's complete it's the court's own order the courts own so you know surrendering of its contempt authority nominally at least agreed and that's why we're here for this court to tell judge simpson that that he can't do that with all due respect judge simpson i can't do it because that he can't restrain his own jurisdiction to the extent that he has it i mean he is as you were saying judge catholics the only way that that order actually can operate in any kind of effective way other than just by the will of the parties to the agreement is for the cold war to have some kind of teeth and it clearly is intended to have some kind of teeth that's why there is a procedure for pete for the parties to go back before the magistrate judge and then ultimately to the district judge to have it implemented that's that's the whole reason why this is a court order rather than a private settlement because if it was a private salamon it they'd be they'd be going back into state court with some different judge just on a on a routine breach of contract matter there would be any basis for federal jurisdiction so if we said it was a consent decree because it functions like what then should we do after that your view well then you have to evaluate it for for fairness purposes and that analysis deals with the pendency of a summary judgment motion for twenty months that was unopposed for twenty months that by the way both the defense all the defendants filed it wasn't just us the state defendants also had a pending summary judgment motion of twenty months at the time this was done so i mean what is i know you've said it i'm just trying to find it i mean issue but as soon you don't reach that then the case should go back for a ruling on the summary judgment motion which dealt with the merits of the funding claim not the standing issue that and that that there is no need for any further discovery there is no need for any further litigation there is no need for anything in fairness to the plaintiff they ought to be given an opportunity to respond to the summary judgment motion since it was short circuited the short circuited spy dependency for twenty  months but it would be remanded for disposition of the summary judgment motion that's been pending for twenty months by both sets of defendants including the state i think that's the appropriate relief here that i'm sorry my time's i'm going to you know i was go say that the notion that the notion that we have free will about this so called new p c c is ridiculous because we don't have the right to negotiate the terms of a contract that's preordained by this