Wiccan Religious Cooperative v. Jim Zingale
SC05-873

MARSHAL: HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF THE GATE STATE OF FLORIDA IS NOWIN SESSION. ALL WHO HAVE CAUSE TO PLEA , DRAW NEAR , GIVE ATTENTIONAND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES , THE GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT.PLEASE BE SEA TED.

CHIEF JUSTICE: GOOD MORNING, LADIES AND GENTLEMEN, AND WELCOME TO THE FLORIDA SUPREME COURT. I KNOW WE HA VE IN OUR AUTOPSY TO DAY , THE GOVERNMENT LAWYERS SECTION OF THE FLORIDA BAR, WHO ARE HERE FOR AN APPELLATE PRACTICE SEM INAR , AND SO WE WELCOME YOU AND LOOK FORWARD TO SEE ING YOU L ATER THIS M ORNING . ALSO I W AS INFORMED B Y O NEOF THE DEPUTY MARSHAL S THATTODAY IS M Y LAST D AY SITTING AS CHIEF JUST ICE FOR O RAL ARGUMENT AND HE WIS HED ME CONGRATULATIONS.I DON 'T KNOW WHAT THAT MEANS. SO BE K IND ON US TODAY. THE FIRST CASE O N THIS MORNING'S CALE NDAR IS THE WICCAN RELIGIOUS COOPERATIVE OF FL ORIDA VERSUS ZINGALE. HEARING FOR PETITIONER , MS . MORCROFT.

MAY IT PLEASE THE COURT. MY NAME IS HE ATHER MORCROFT . I AM HERE FOR THE PETITIONER APPELLANT .

CHIEF JUST ICE: ADJUST THEMIKE.

IS THAT BETTER? THIS CASE ORIGINALLY CAME ABOUT BECAUSE AT THE TIME IT WAS BROUGHT, A RELIGIOUS PUBLICATION WAS DEFINED AS A BIBLE , HYMN BOOK OR P RAYER BOOK OR ANYTHING SOLD BY A RELIGIOUS INSTI TUTION THAT H AD AN ESTABLISHED PHYSICAL PLACE OF WORSHI P .

CHIEF JUSTICE: WELL, YOU KNOW THE FIRST ISSUE IS THE STANDING OR THE MAIN ISSUE , AND MY FIRST QUESTION TO YOUYOU REALLY IS THE JURISDICTIONAL ONE, W HICH IS WHAT BA SIS DO YOU AS SERT THAT THERE IS CONFLICT JURISDICTION, AND IF YOU C OULD JUST BRIEFLY ADDRESS THAT.

SURE. THE U.S. SUPREME COURT TALKS ABOUT TAXPAYER STATUS , TO B RING A LAWSUIT. THE GRAVAVEMENT OF THE STANDING I N THIS CASE HAS TWO POINTS, ONE THE ACTUAL HARM TO THE PLAINTIFF ANDTHE OTHE R IS THE CONSTITUTIONAL HARM ITSELF , C REATES STA NDING AND THE C ASES UP HOLD THAT .

CHIEF JUST ICE: IS THAT I SSUE , THE TAXPAYER STAN DING ISSUE WHICH IS C ERTAINLY A RECOGNIZED EXCEPTION , WAS THAT RAISED BE FOR E THE FIRST DISTRICT, BECAUSE THEY D O N'T DIRECTLY ADDRESS, IT ANDTHAT IS MY CONCERN AS TO THE CONFLICT ISSUE. DID YOU RA ISE TAXP AYER STANDING BEFORE?

THE TAXPAYER STANDING WASAN ISSUE THAT WAS ADMITTED ALL ALONG. THE FIRST DCA SIMPLY DIDN'T ADDRESS IT. IN ADDITION, HOWEVER, TO THE TAXPAYER STANDI NG, THIS COURT IN SHAR PER IMAGE, THE SHARPER IMAGE CASE ADDRESS ED EXACTLY THE SAME STATUTE ANDTHE CONSTITUTIONALITY OF THAT STATUTE, AND THE QUESTION OF WHETHER OR NOT SHARPER IMAGE HAD STANDING TO RAISE THE ISSUE , CAME BEFORE THE COURT , AND THE F IRST DCA SAID THAT WHERE THERE IS A CON TENT -BASED REGULATION, A CONTENT -BASED DISCRIMINATION AS TO WHETHER OR NOT A PUBLICATION IS GOING TO B E TAXED , T HEN THAT F ACT AL ONE IS THE CHALLENGER TO THAT STATUTE STANDING. THAT CASE ALSO TALKED ABOUT--

CHIEF JUSTICE: THAT IS UNDER THE TAXPAYER STANDING.

WELL , IT DO ESN'T REALLY SAY TAXPAYER STANDING OR NOT. IT SAYS IF THERE IS A CONTENT -BASED REGULATION, THAT PE RSON HAS STANDING. I F THAT PERSON IS AFFECTED BY THE STATUTE --

CHIEF JUSTICE: ARE YOU ALLEGING CONFLICT WI TH THAT CASE AS WELL?

NO. N O. I AM NOT AL LEGE ING. WELL --

JUSTICE: YOU ARE ALL EGING CONFLICT WITH HORN AND --

WHICH ADDRESSES TAXPAYER STANDING.

JUSTICE: AND YOU SAID EARLIER THAT THE DCA DID NOT ADDRESS TAXPAYER STANDING IN THIS OP INION.

THAT'S COR RECT .

JUSTICE: S O THEN HOW CAN IT CONF LICT WITH ANY TAXPAYER STANDING CASE?

WELL, IT ADDRESSED STANDING, IN THAT IT SIMPLY , IT SAID THERE IS NO STANDING . AND THE WH OLE BASIS FOR STANDING IN T HIS CASE WO UL D BE AR TICLE I II STANDING , AS SET FORTH AND APPLIED TO THE STATE EXERCISE OF THE TAXING AND S PENDING P OWER TH ROUGH H ORNE.

CHIEF JUSTICE: THE R ONY HIM HAVING PRO BLEMS WITH THAT IS BECAUSE YOUR C LIENT WENT TO GREAT L ENGTH AFTER LITIGATION STARTED, TO PURCHASE A A BOOK. THINGS HAPPENED ALONG T HEWAY WHERE THE RELIANCE WASMORE ON AC TUAL HARM AS A TAXPAYER, VERSUS YOUR STATUS AS A BOOK SE LLER , AND SO IN TERMS OF TR YING TO GET , THERE IS , MAYBE SOME VERY MERITORIOUS AR GUMENT , SUBSTANTIVE ARG UMENT .

RIGHT.

CHIEF JUSTICE: B UT I AM TRYING TO GE T TO THE PROCEDURAL POSTURE, AND IT FEELS LIKE IT CHANGED THROUGHOUT THE LITIGATION.

WELL, YOU KNOW , YOUR HONOR , THAT'S CORRECT. IT HAS CHANGED THROUGHOUT THE LITIGATION , AND IT HASCHANGED FOR ONE REA SON THAT IT HAS CHANGED IS THAT THE STATE HAS K EPT CHANGING THE REASON WH Y THE COURT SHOULD NOT REACH THE CONSTITUTIONAL ISSUE.

JUSTICE: BUT WHAT WAS THE , EXPLAIN FOR MY BENEFIT, IF YOU WOULD , THE PROCEDURAL HISTORY OF THIS MATTER. HOW DO WE GET TO --

THE PROCEDURAL HISTORY OF THE CASE BE GAN BECAUSE THERE WAS THIS ESTABLISHED PHYSICAL PLACE OF WORSHIP. AFTER THIS CASE STARTED , MANY OF THE FLORIDA ADMINISTRATIVE CODE --

JUSTICE: STARTED WHERE?

IN 2000 IN THE FIRST DCA .

JUSTICE: OKAY. DID IT START BEFORE THAT?

YES , ACT UALLY IT DID START BEFORE.THAT IT STARTED BECAUSE WRCF HAD AN ESTABLISHED PHYSICAL PLACE OF WORSHIP AND THEY HAD A CONS UMER SA LES TAX EXEMPTION.A T SOME POINT, THEY STOPPED HAVING AN ESTABLISHED PHYSICAL PLACE OF WORSHIP , AND THEY BEGAN TO RENT VARIOUS DIFFERENT PLACES OF WORSHIP FOR THEIR WORSHIPSERVICES. WHEN THEY WENT TO RENEW , THEIR SALES TAX EXE MPTION CERTIFICATE , THE STATE SAID YOU HAVE TO HAVE AN ESTABLISHED PHYSICAL PLACEOF WORSHIP OR WE WILL NOT GIVE THIS CONSUMER SALES TAX EXEMPTION CERTIFICATE TO YOU AS A RELIGIOUS INS TITUTION , AND AT THAT TIME THERE WAS NOTHING ELSE THAT WR CF QUALIFIED UNDER. THE STATE SENT NUMBER OF , SENT TWO LETTERS, BASI CALLY SAYING IF YOU HAVE ANOTHERREASON THAT WE CAN GIVE YOUTHE STATUS , PL EASE TELL US F YOU DON'T, WE WILL ISSUE A NOTICE OF IN TENT TO DE NY AND WE WILL DENY. THE STATE REQUESTED THAT WRCF SU BMIT AN AFFIDAVIT , SAYING THAT THEY WERE A N ADMINISTRATIVE ORGANIZATION OVER OTHER SUBORGANIZATIONS. WRCF COULD NOT SUBMIT THAT AFFIDAVIT BECAUSE THAT IS NOT TRUE , HAS N EVER BEEN TRUE.

JUSTICE: THEN WHAT YOU DID WAS STEP IN TO THE SECOND CIRCUIT , CORR ECT?

WHERE WE ORIGINALLY FI LED WAS IN TALLAHASSEE.

JUSTICE: RI GHT .

BECAUSE IT WAS A TAX.

JUSTICE: YOU YOU FILED A JUDGMENT ACT ION?

RIGHT. AND WHEN --

CHIEF JUSTICE: AT THAT P OINT WERE YOU SEEKING , WERE YOU CHALLE NGING JUST FACT THAT THEY HAD DENIED YOU TAX , THE EXEM PTION AS A SEL LER OF RELIGIOUS OR NONRELIGIOUS MATERIALS AS OPPOSED TO A PURCHASER ?

BOTH .

CHIEF JUSTICE: OR ARE YOU PURCHASED, AT THE TIME THAT YOU FILED THE LAWSUIT IN THE SECOND CIRCUIT, HAD YOU PURCHASED ANY OF THE BOOKSTHAT YOU ARE NOW SA YING YOU IMPROPERLY HAD TO PAY TAXON?

YES. NO. NOT THE ONE S THAT WE NOWLIST IN THE THIS LAWSUIT. HOWEVER, WHEN WRCF HAD THE SALES TAX EXEMPTION CERTIFICATE AND THE RECORD SHOWS THIS, THEY REGULARLY PURCHASED PUBLICATIONS AND ITEMS OF WORSHIP FOR THEIR EDUCATIONAL AND RELIGIOUSPROGRAM.ONCE THEY NO L ONGER HAD THAT SALES TAX EX EMPTION CERTIFICATE, THEY CONTINUED TO MAKE TH OSE PU RCHASE S , BUT THEY DIDN'T HAVE THE CONSUMER SALES TAX EXEMPTION CERTIFICATE , SO THEY CONTINUED TO PAY TAX.

CHIEF JUSTICE: NOW, THAT IN THE PLEADINGS?

THAT IS IN THE AFF IDAVIT ATTACHED TO THE SUMMARY JUDGMENT MOTION.

JUSTICE: SO WHAT DOES THE TRIAL JU DGE ACTUALLY BASE YOUR STANDING ON? THE TRIAL JUDGE MAK ES THE DETERMINATION THAT YOU HAD TAXPAYER STAND SOMETHINGANOTHER TRIAL JUDGE SAID THAT WRCF HAS STANDING ANDWE FIND THIS CONSTITUTIONAL BECAUSE IT DOESN'T S KIM N ALT BEGINS YOUR -- DISCRIMINATE AGAINST YOUR RELIGION .

JUSTICE: IT IS NOT CL EAR AS TO TAXPAYER STANDING , SO HOW DO WE GET TO CONFLICT , IF NE ITHER THE TRIAL COURTNOR THE DISTRICT COURT MADE THE DETERMINATION?

I THINK THE DISTRICT COURT DID SAY, I M EAN THE DISTRICT COURT DIDN'T DIS PUTE IN ANY WA Y, IN FACT REFERENCED THAT THESE MATERIALS WERE PURCHASED , SO I DON'T THINK THERE WAS ANY REAL DISPUTE AS TO WHETHEROR NOT THERE WAS TAXPAYER STATUS. THAT WAS NEVER E VEN RAISED AS AN ISSUE , U NTIL AFTER THE F IRST DCA CAME DOWN WITH THEIR OPINION. NOBODY, EVERYBODY AS SUMED THAT THERE WAS TAXPAYER STATUS. I MEAN , THAT WAS , I BE LIEVE THAT BOTH TAXPAYER, WHAT WE WERE TALKING ABOUT IN THESUMMARY JUDGMENT MOTION WAS TAXPAYER STATUS AND STATUS OF ACTUAL HARM , AND THAT IS WHAT WE WERE TAL KING A B OUT.

JUSTICE: D O YOU AGREETHAT THE FIRST DISTRICT RULED ON A VERY NARROW ISSUE , AND THAT WAS THAT YOU WERE A PARTY THAT APPE ARED TO BE A BENEFICIARY OF THIS STATUTE , AND THEREFORE AS A BENEFICIARY , STANDING T O G AIN , EX CUSE THE PUN , THAT YOU HAD NO STANDING. AND THAT IS THE ONLY ISSUE, IT APPEARS, THAT THE FIRST DISTRICT RULED ON HERE.IS THAT CORRECT ?

I BELIEVE THAT THAT INCLUDED RULING ON TAXPAYER STATUS.

JUSTICE: LET'S NOT TALK ABOUT WHAT IT INCLUDED. THAT IS -- THE RATIONALE FOR THEIR DECI SION WAS THAT YOU WERE A PA RTY AND THAT THE OTHER SIDE AG REED , AND YOU ADVANCED THAT YOU BE NEFITED BY THE PROVISIONS OF THIS STATUTE , AND AS SOME BODY THAT BENEFITED , ISN'T THAT THE ONLY ISSUE DIS CUSSED IN THE FIRST DISTRICT OPI NION?

NOT PRECISELY THE WAY YOU WORD IT , NO.

JUSTICE: TE LL ME WHAT THEY DISCUSSED, OUTSIDE OF WEIGHT I JUST OUTLINED IT.

YOU SAID THAT PAR TIES STIPULATED THAT WRCF BENEFITS F ROM THIS. THAT IS NOT --

JUSTICE: WE HAVE GOT TO FOCUS ON THE DECISION, AND WE WILL FOCUS EVEN MORE BROADLY ON THE DISCUSSION O F THE FIRST DISTRICT OPINION , AND SO I AM ASKING YOU WHETHER YOU WOULD AGREE THAT THE ONLY DECISION THAT THE FIRST DISTRICT MAD E WAS THAT YOU WERE A PARTY THAT BENEFITED FROM THE PROVISIONS OF THIS STATUTE , AND THEREFORE AS BENEFICIARY , YOU LACK STANDING. WAS THERE A DISCUS SION OF ANY OTHER RATIONALE FOR THEIR DECISION ?

THERE WAS A DISCUSSION OF THE PURCHASE OF THE ACTUAL B OOK IN THE DIS SENT , YES.

JUSTICE: IT CAN'T TAKE JURISDICTION ON THE BASIS OF A DISS ENT, SO WHAT WE ARETRYING TO HAVE YOU CONF RONT IS, WE HAVE THIS VERY NARROW DECISION, AND SO FOR INSTANCE, IF WE HAD AN OTHER DISTRICT COURT OF APPEAL THAT SAID IT DOESN'T MATTER WHETHER THE PARTY IS A BENEFICIARY OF THE STATUTE BEING CHALLE NGED. THEN WE WOULD HAVE D I RECT CONFLICT WITH THE FIRST DISTRICT OPINION. H ELP US WITH, SINCE THIS IS A VERY NARROW OPINION , IT DOES NOT APPEAR THAT THERE ARE ANY DISTRICT COURT DECISIONS THAT CONFLICT WITH THAT VERY NARROW DECISION THAT THEY HAVE MADE , ARE THERE?

WELL , I THINK THAT THE SHARPER IMAGE CASE DOES DO THAT.

JUSTICE: IT SAID THAT SOMEBODY CAN BE THE BENEFICIARY AND STILLCOMPLAIN THAT THE STATUTE IS UNCONSTITUTIONAL ?

IT S AYS THAT IT DOESN'T , AND SO DOES , I BELIEVE , "TEXAS MONTH LY" BUT I T DOESN'T MATTER IF YOU ARE THE BENEFICIARY OR NOT , WHEN WHAT YOU HAVE IS CONSTITUTIONAL HARM, PARTICULARLY ON A CONTENT BASIS. AND I BELIEVE THAT THE BUDLONG CASE THAT JUST CAME DOWN IN FEBRUARY IN GEORGIA , SAYS THE SAME THING. THE HARM , WRCF DOES NOT BENEFIT FROM THIS EXEMPTIONSTATUTE. THAT IS THE BOTTOM LINE. THE HARM I S THAT THIS KIND OF STATUTE HARMS RELIGI OUS LIBERTY , BECAUSE IT REQUIRES THE STATE TO MAKE A CONTENT DETERMINATION. IT DE FIES COMMON SE NS E TO SAY THAT THAT I S BENEFIT.

JUSTICE: WE MAY HAVE , ON CONSIDERATION , COMPLETELY WITH YOUR POSITION, BUT BUTI AM STILL HAVING DIFFICULTY WITH YOU DEMONSTRATING A CONFLICT WITH ANOTHER FLORIDA DISTRICT COURTDECISION OR DECISION OF THIS COURT ON THE VERY NARROW GROUNDS DISCUSSED IN THE FIRST DISTRICT OPINION.

CHIEF JUSTICE: JUSTICE LEWIS HAS A QUESTION. NO? I THOUGHT .

WELL , I, THE S HARPER I MAGE I S VERY , VERY DIRECTLY ON POINT, A ND I BELIEVE THAT IT DOES SAY , DOESN'T RE ALLY MATTER WHETHER YOU BENEFITOR NOT , AND I BELIEVE THAT HORNE DOES THE SAME THING , BUT IT IS THE CONSTITUTIONAL HARM ITSE LF THAT CREATES THE STANDING. I THINK THAT THE FIRST DISTRICT MISSPOKE , WHEN I T CHARACTERIZED THIS AS A BENEFIT .

CHIEF JUSTICE: DO YOU SEE THAT YOU WOULD BE PRECLUDED FROM FILING ANOTHER ACT ION AND SPECIFICALLY GOING ONLY ON THE TAXPAYER STANDING EXEMPTION FOR CONSTITUTIONAL CHALLENGES AND MAKING THAT A VERY SPECIFIC CLAIM , AS OPPOSED TO TALKING ABO UT I PURCHASED THIS OR I PURCHASED THAT. DO YOU, AND I AM GOING TO A SK THE RESPONDENT THAT QUESTION. IN OTHER WORDS BECAUSE IT WAS A NARROW ISSUE THAT WAS DECIDED.

RIGHT.

CHIEF JUSTICE: DO YOUTHINK THAT YOU COULD GO BA CKAND RE FILE THIS COMP LAINT ANDAL EMIN G WHAT YOU ARE ALLEGING HERE UN DER L OUIS AND H ORNE ?

YES, AND I THINK THAT U NDER BUDLONG, THE PLAINTIFF COULD NOW GO BAC K AND FILE THIS IN FE DERAL COURT, BUT IDON'T THINK THAT THAT IS NECESSARY . I THINK THAT THE ISSUE IS PROPERLY BEFORE THIS COURT , AND THAT THE COURT SH OULD CONSIDER IT.

JUSTICE: BY MAKING THAT CONCESSION, ARE YOU NOT, THEN, CONCEDING THAT THIS COURT NE VER, THE LOWER COURT REALLY DID NOT ADDRESS THAT ISSUE , AND THAT ISSUE COULD NOT HAVE BEEN ADDRESSED AS PART OF A RES JUDICATA CONCEPT ?

I AM SO RRY. AM I AGREEING THAT THE LOWER COURT DIDN'T ADDRESS THE ISSUE?

JUSTICE: DID THE COURT INQUIRE AS TO WHE THER YOU COULD FILE THIS SAME LAWSUIT BUT ALLEGING IT IN A DIFFERENT CAPACITY, AND YOUR ANSWER WAS YE S.IS THAT NOT A CONCESSION,THEN, THAT THE FIRST DISTRICT, THIS WAS NOT PART OF THE CASE AT ALL IF YOUARE NOT PREC LUDED BY AN ISSUE PRECONCLUSION OR RES JUD ICATA .

NOT WRCF AS A PARTY, NO , NO , NOT WRCF AS A PARTY, NO. ANOTHER PE RSON COULD COME ALONG AND DO THAT.

CHIEF JUSTICE: YOU MIGHT WANT TO SAVE THE REST O F YOUR TIME FOR REBUTTAL.

YES. I DO WANT TO S AVE THE REST OF MY TI ME. THANKS.

CHIEF JUSTICE: WE ARE GOING TO HAVE MR . McKEE REPRESENTING MR . ZINGALE AND YOU HAVE 15 MINUTES AND THEN YOU WILL C EDE FIVE MINUTES T O MR . SHAUGHNESSY . IT WILL BE U P TO YOU. I MIGHT TRY TO RE MIND YOU, BUT OTHERWISE HE CAN TUG AT YOUR COATTAIL .

MAY IT PLEASE THE COURT. JAMES Mc KEE ON BEHALF OF THE RESPONDENT. JUST SDWRUS IT MAKE ANY DIFFERENCE , AS FAR AS STANDING IS CONCERNED - -

JUSTICE: DOES IT MAKE ANY DIFFERENCE AS FAR AS STANDING IS CONCERNED, THAT YOUR OPPO NENT TE LLS US THAT THIS WAS ORIGINALLY FILE D AS A DECLARAT ORY JUDGMENT ACTION?

FOR PURPOSES OF THIS COURT'S JURISDICTION , I DON'T THINK I T MAKES ANY DIFFERENCE.

JUSTICE: I AM ASKING YOUAS FAR AS STANDING.

I THINK WHAT THE COURT HAS TO LO OK AT, AS FAR AS THE DECLAR ATORY JUDGMENT IS CONCERNED , THERE ARE SPECIFIC PRINCIPLES THAT M UST BE SHOWN IN ORDER TO SHOW STANDING , AND THE ABILITY TO B RING DECLARATORY JUDGMENT ACTION. IN THIS CASE IT SEEMS LIKE THE SOLE BASIS THAT PETITIONER RELIES UPON FOR STANDING IS TAXPAYER STANDING , AND I THINK AS THE COURT HAS QUESTIONED THE PETITIONER ABOUT, THERE IS ACTUALLY NO CONFLICT BETWEEN THE CASES THAT ARE ALLE GED IN THIS C ASE, THE HORN CASE , THE BLAKE CASE AND THE LO UIS C ASE. THOSE -- AND THE LEWIS CASE. THOSE CASES SPECIFICALLY ADDRESS TAXPAYER STANDING , AND IN IN THOSE CASES --

JUSTICE: DOES THE DECLARATORY JUDGMENT HAVE A STANDING REQUIREMENT?

THE DECLARATORY JUDGMENT STATUTE REQU IRES CERTAIN THINGS. IT REQUIRES THAT THERE IS A, THAT A PARTY HAVE A BONA FIDE ACTUAL PRE SENT PRACTICAL NE ED FOR THEDECLARATION. IT REQUIRES THAT , IT REQUIRES A PRESENT CONTROVERSY . IT REQUIRES THAT UNIT , PO WER, PRIVILEGE OR RIGHT OF THE COMPLAINING PARTY IS DEPENDENT ON THE FACTS OR THE LAW APPLICABLE TO THE FACTS , AND IN ADD ITION THE DECLARATORY JUDGMENT STANDARD, I BELIEVE , IS THE TAXPAYER STANDING R ULE THAT HAS BEEN ANNOUNCED BY THIS COURT IN HOR NE.

CHIEF JUSTICE: THIS IS MY PROBLEM.I AM ASKING YOU THE SAME QUESTION. IF WICCAN REF ILES AND SPECIFICALLY ALLEGED TAXPAYER STANDING, THAT THIS IS A TAXING AND SPE NDING STATUTE , AND THEY ARE CLEARLY CHALLENGING THIS AS A FIRST AMENDMENT VIOLATION, THAT THERE ARE CONTENT -B ASED DECISIONS THAT THEDEPARTMENT OF REVENUE MAKES APPARENTLY ALL THE TIME IN DECIDING WH ICH RELIGIOUS, WHICH PUBLICAT IONS ARE RELIGIOUS AND WHICH ARE NOT , TO GET THE TAX EXEMPTION , WHICH IS DIFFERENT THAN WHETHER THEY QUALIFY TO BE ABLE TO SELL THEIR MATERIAL AS AN UNIT WITH AN EXE MPTION. W OULD THEY BE AB LE TO REFILE AND SPEC IFICALLY ALLEGE THAT INJURY, OR ARE THEY PRECLUDED BASED UPON WHAT HAS BEEN LITIGATED BEFOREHAND?

I DON'T THINK THEY WOULD BE PRECLUDE. I THINK THAT NOW THAT IT HAS BEEN SHOWN THAT THEY PA IDTAX AND THAT THEY ACTUALLY ARE A TAXPAYER , THERE WOULD BE AN ISSUE AS TO WHETHER OR NOT TAXPAYER STANDING , AND I DON'T THINK THIS COURT HAS ADDRESSED WHETHER OR NOTU NDER THE TAXPAYER STANDING PRINCIPLE , ADVERSEMENT M UST STILL BE SHOWN. THE TAXPAYER STANDING RULE THAT HAS BEEN ANNOUNCED DOES AWAY WITH ANY SORT OF SPECIAL IN JURY REQUIREMENT. BUT WHETHER OR NOT ADVERSEMENT HAS TO BE SHOWN IS AN ISSUE THAT WAS NOT ADDRESSED BY THE FIRST DCAIN THIS CASE.

CHIEF JUSTICE: DO YOU AGREE, WAS IT BRIEFED AS AN ALTERNATIVE BASIS FOR STANDING OR AS THE MAIN BASIS FOR STAND SOMETHING.

AT THE FIRST.

CHIEF JUSTICE: AT THE FIRST DISTRICT?

YES AND I THINK WHAT THE FIRST DISTRICT RULED UPON WAS NOT TAXPAYER STANDING BUT JUST UNDER GENERAL STANDING PRINCIPLES WHETHER OR NOT WICCAN HAD AN ADVERSE INTEREST.

JUSTICE: WE HAD A LITTLE UNUSUAL PROCED URAL POSTURE, BECAUSE APPARENTLY A PART OF THE DECISION OF THE TRIAL COURT WAS STANDING . THE RE WAS NO C ROSS APPEAL .

RIGHT.

JUSTICE: AND THEN THE FIRST DISTRICT ADDRESSED THIS IN THE NA TURE OF A WAIVER. THE PART IES DISCUSSED ALL OF THESE THIN GS. DOES THAT AL TAR -- ALTER OURANALYSIS WITH REGA RD TO WHAT THAT ISSUE WAS, BECAUSE IT APPEARS THAT THEY DID ACCEPT IN THAT PARAGRAPH OF THE OPINION , TALK ABOUT STANDING AND WHETHER THAT BRINGS AS PART OF THE OPINION , THE ISSUES OF STANDING THAT ARE ACTUALLY INVOLVED IN THECASE?

THE FIRST DISTRICT, WHEN IT CONSIDERED THE CROSS APP EAL , SIMPLY FOUND THAT IT WAS A PROBABLY RULE THAT -- A PROCEDURAL CRUEL ROOUL THAT COULD BE WAIVED AND IT WAS -- PROCEDURAL RULE THAT COULD BE WAIVED , AND IT WAS WAIVED ON THE PART OF THE PARTIES AND BRIN GS IN ALL OF THESE OTHER THINGS.

JUSTICE: THE STATUTE DOES NOT SPECIFICALLY SAY BUT INHERENTLY, IS THAT WHEREOUR PROB LEM IS HERE?

WELL , I DON 'T THINK THE OPINION IN HERENTLY SAYS ANYTHING REGARDING TAXPAYER STANDING. FOR THE PURPOSES OF THIS COURT'S JURIS DICTION , DIR ECT CONFLICT JURISDICTION , YOU HAVE TO LOOK TO THE FOUR CORNERS OF THE DCA'S OPINION .

CHIEF JUSTICE: IF WE GET PAST THE JURISDICTIONAL ISSUE , I HAVE SOME CONCERNS ABOUT THE BASIS , AS JUSTICE ANSTEAD CA LLS IT , A NARROW BASIS FOR THE FIRST DISTRICT'S RULING . IT SE EMS TO BE SORT OF A VALUE DETERMINATION , AS TO WHETHER THEY HAVE AN ADVE RSE INTEREST. IF I AM CLAIMING TO BE A RELIGIOUS ORGANIZATION OR I AM A RELIGIOUS ORGANIZATION, I GUESS YOU HAVE RECOGNIZED THEM BEFORE AS ONE , AND IHAVE GOT THE DEPARTMENT OF REVENUE DECI DING WHETHER MY B IBLE IS REALLY A RELIGIOUS TEXT OR IF IT IS HISTORICAL OR SOMETHING ELSE , WH Y AM I NOT IN THE CAPACITY , NOT AS A PURCHASER BUT AS A SELLER , ADVERSELY AFFECTED BY A GOVERNMENTAL ENTITY MAKING A DETERMINATION ON AN ON GOING BASIS , AS TO WHETHER WHAT I SELL IS OR IS NOT GOING TO BE SUBJECT TO SALES TAX?

WELL , I WOULD HAVE TWO ANSWERS TO THE QUESTION. FIRST DEPARTMENT OF REVENUE ITSELF, DOES NOT DETERMINE WHAT A RELIGIOUS PUBLICATIONIS. THAT DETER MINATION IS LEFT TO THE BOOK SELLER. SIMILAR TO A STATUTE THAT EXEMPTS CERTAIN FOOD ITEMS. THE GROCERY STORE IS ACTUALLY THE ONE THAT MAKES THE DETERMINATION. S O THE DEPARTMENT IT SELF KIND OF STAYS OUT OF THAT.

CHIEF JUSTICE: SO THEY CAN SAY ANYTHING IS RELIGIOUS AND THERE IS N O CHALLENGE TO IT?

AT THIS POINT THERE HASBEEN, THE DEPA RTMENT ITSELF HAS NOT CONSIDERED WHETHER OR NOT ANY P ARTICULAR PUBLICATION WAS RELIGIOUS OR OTHERWISE .

CHIEF JUSTICE: AS LONG ASTHEY HAVE THEIR RELIGIOUS EXEMPTION?THEY HAVE TO, FIRST, HAVE THEIR RELIGIOUS EXEMPTION.

WELL , NO. THE RELIGIOUS , THE REQUIREMENT THAT IT B E A RELIGIOUS INSTITUTION, THAT ADMINISTRATIVE RULE HAS BEEN REPEALED. AS OF T HIS POINT , THE --

CHIEF JUSTICE: WE ARE REALLY DE ALING WITH --

IT IS UP TO THE BOOK SELLER TO DETERMINE WHETHER IT IS A RELIGIOUS CONTENT OR NOT. THE LANGUAGE THAT WE ARE CONCEDING ON AT THIS POINT THE PETITIONER SPECIF ICALLY STATED WILLING TO SELL RELIGIOUS PUBLICAT IONS AND OTHER RELIGIOUS PUBLICATIONS TO MEMBERS OF ITS PARTY WITHOUT SALES TAX . THAT SEEMS TO BE CONTRARY TO THE DECLARATORY JUDGMENT THEY ARE REQUESTING IN THIS CASE. IN THIS CASE THEY AREREQUESTING TO HAVE THE E NTIRE STATUTE DECLARED UNCONSTITUTIONAL WHICH WOULDALLOW THEM TO DO SO ANDWOULD ALLOW ANY OF THEIR MEMBERS TO GO OUT AND PURCHASE A WICCAN RELIGIOUS PUBLICATION TAX FR EE, SO AS TO ADVERSEMENT , I THINK THAT DIRECTLY UNDERMINES IT. HAD THEY REQUESTED A DECLARATORY JUDGMENT AS TO WHETHER OR NOT A SPECIFIC RELIGIOUS PUBLICATION , A WICCAN RELIGIOUS PUBLICATION WAS EXEMPT FRO M THE TAX, THEN I THINK THAT MAY HAVE BEEN PROPER.

JUSTICE: WERE THEY ASKING , IS THAT , UNCONSTITUTIONAL ON ITS FACE OR UNCONSTITUTIONAL AS APPLIED?

I THIN K IT IS UNCLEAR, BUT I THINK IT IS A FA CIAL CONSTITUT IONAL CHALLENGE. AND IN THAT RESPECT , I THINK IT DIRE CTLY IS CONTRARY TO WHAT APPEARS TO BE THEIR STATED INTEREST IN THIS .

JUSTICE: IS IT YOUR POSITION THAT THERE COULD NOT BE A DECLARATORY JUDGMENT AS TO THE CONSTITUTIONALITY OF A STATUTE?

I THINK THERE CAN BE , BUT I THINK THAT THAT WOULD HAVE TO BE BROUGHT BY A TAXPAYER , UNLESS THE SPECIFIC STANDING PRINCIPLE , THE DECLARAT ORY JUDGMENT STANDING PRINCIPLE ARE SPECIFICALLY AND STRICTLY FOLLOWED, AND I THINK THERE ARE SPECIFIC PEOPLE THAT COULD BRING THAT CHALLENGE.THERE ARE TAXPAYERS.

JUSTICE: IS THERE SOME CASE THAT LIMITS DECLARATORY JUDGMENT ACTIONS IN RESPECT TO TAX MATTERS TO TAXPAYERS?

WELL , THE TAXPAYER STANDING PRIN CIPLE S ARE AN EXCEPTION TO THE GENERAL STANDING PRINCIPLE. SO I BELIEVE THE --

JUSTICE: I A M ASKING YOU ABOUT THE DECLARATORY JUDGMENT STATUTE. I MEAN, WE HAVE HAD A PRETT Y BROAD INTERPRETATION FROM THIS COURT A S TO THE DECLARATORY JUDGMENT STATUTE.

THERE IS NO CASE THAT I CAN RECALL RIGHT NOW THAT SPECIFICALLY CONSIDERS OR SPECIFICALLY REFERS TO THE , A DECLARATORY JUDGMENT STATUTE AND TO THE FACT OF THEIR STANDING BASIS , BUT I BELIEVE I N FOREIGN AND IN THE CASES THAT FOLLOWED THAT , THERE MIGHT BE MIGHT HAVE BEEN DECLARATORY JUDGMENT ACTIONS BUT I DO N'T RECALL OFFHAND, BUT I THINK THAT WHETHER A PARTY IS A TAXPAYER OR NOT , THEY COULD BRING A DECLARATORY JUDGMENT ACTION, IF THEY COULD SHOW THAT THEY HAD MET THE DECLARATORY JUDGMENT STANDARD, THE STANDING REQUIREMENTS THERE .

JUSTICE: WHAT IS THAT REQUIREMENT AS YOUUNDERSTAND IT UNDER THAT STATUTE?

WELL , I THINK YOU HAVE TO HAVE , WELL , ONE , AN ADVERSE INTEREST, AND I THINK IN THIS CASE, THERE IS NO ADVERSE INTE REST, BECAUSE AS I STAT ED IT APPEARS THAT WHAT THE COMMISSIONER WANTSIS TO BE ABLE TO SELL AND HAVE ITS MEMBERS BE ABL E TO BUY THEIR WICCAN RELIGIOUS PUBLICATIONS TAX-FREE.

JUSTICE: DO YOU BELIEVETHAT IS PART OF THE STATUTETHAT SAYS THAT IS THE DECLARATORY RELIEF?

THAT IS HO W IT HAS BEEN INTERPRETED BY THE COURT IN M AYBE THE HOWIE CASE.

JUSTICE: THE PE OPLE THAT BRING THE STANDING , SAY IF I PUBLISH A SE CULAR BOOK AND PEOPLE HAVE TO PAY TAX ES ON IT, THEN I COULD BRING THIS ACTION CHALLENGING THIS TAX EXEMPTION.

I THINK THAT THEY PROBABLY COULD UNDE R THE DECLARATORY JUDGMENT STANDARD, BUT I THINK ALSO THAT ANY TAXPAYER IN THE STATE COULD ASK FOR STANDING.

JUSTICE: SO IF ANY TAXPAYER IN THE STATE WOULDBRING THIS CHALLENGE, HOWDOES THIS STATUTE NOT VIOLATE "TEXAS MONTHLY"?

WELL , I THINK THE OTHER THING TO KEEP IN MIND, TOO , IS AS RELATES TO THE JURISDICTIONAL BASIS OF THIS CASE, THE ONLY JURISDICTIONAL BASIS HAS BEEN, THAT HAS BEEN ALLEGED IS CONF LICT WITH HORNE , BLAKE, AND DE PARTMENT OF EDUCATION V L EWIS ON THE TAXPAYER STANDING PRINCIPLE S.

JUSTICE: AND WE SAY THAT THIS GROUP DOES IN FACT HAVE TAXPAYER STANDING, AND THEN WE GET TO THE ME RITS OF WHETHER OR NOT THIS STATUTEIS IN FACT UNCONSTITUTIONAL , WHY ISN'T THIS STATUTE A V IOLATION OF THE PRINCIPLE S DISCUSSED IN " TEXAS MONTHLY"?

WELL , I THINK MR IS BETTER PREPARED TO ADDRESS CONSTITUTIONALITY THAN I A M, BUT THE BROADER STATUTE IN "TEXAS MONTHLY" THERE WAS ANUMBER OF DECISI ONS, A PLURAL ITY DECISION. THERE WAS NO MAJORITY THAT SPECIFICALLY ANNOUNCE ADD RULE OF L AW OR AN ANALYSIS AND RULE D FOR THE COURT , SOTHAT WAS A NARROW HO LDING THAT THE TEXAS STATUTE, ITSELF, VIOLATED THE ESTABLISHMENT CLAUSE .

JUSTICE: AND SO , BUT , THE ESTABLISHMENT CL AUSE BASICALLY SAYS THAT THE CONFLICT IN THIS CASE , IN THIS CASE FLORIDA LEGISLATURE , SHOULD MAKE NO L AWS RESPECTING THE ESTABLISHMENT OF RELIGIONS , SO THIS STATUTE SAYS BASICALLY THAT YOU GET TAX EXEMPTION, A SPECIAL DEAL , I F IT IS IN FACT A RELIGIOUS PUBLICATION , S O WHY ISN'T THAT A VIOLATION OF THE ESTABLISHMENT CLAUSE?

WELL , IF YOU L OOK AT THE " TEXAS MONTHLY" DECISION, AND I THINK YOU ALSO HAVE TO LOOK TO THE OTHER UN ITED STATES SUPREME COURT CASES THAT HAVE CONSIDERED THAT , THE LOTT CASE AND WA LL S , IN TEXAS MONTHLY , THE CONCURRENT , TWO JUDGE S CONCURRENT, I BELIEVE JUSTICE BLACKMON 'S OPINION, STATED THAT IF THE SALES TAX EXEMPTION STATUTE OR PRESUMABLY THE SALES TAX EXEMPTION AS A HOLE IN A CERTAIN STATE WERE BROADENOUGH, THEN IT WOULD NOT BE A VIO LATION OF THE ESTABLISH CLAUSE THAT ANY PARTICULAR EXEMPTION MIGH T HAVE BEEN AFFECTING THE WICCAN RELIGIOUS SPECIFICALLY.

JUSTICE: THIS STATUTE IS TALKING ABOUT RELIGION. IT COVERS E VERY RELIGIOUS U P , IS THAT WHY YOU ARE SAYING IT IS BROAD?

WELL , NO. I MEANT THE FACT THAT IT COVERS E V ERY R ELIGION GOES TO WHETHER OR NOT IT IS RELIGION NEUTRAL, BUT ITHINK IF YOU LOOK TO THE FLORIDA SALES TAX EXEMPT ION STATUTE AS A WH OLE NOT SPECIFICALLY 212.069, BUT IF YOU LOOK TO THE GEN ERAL SALES TAX SCHEME THERE ARE ANUMBER OF EXEMPTIONS THAT EXEMPT SUCH THIN GS AS EDUCATIONAL TEXTBOOKS , CERTAIN PRO MOS -- PRO MOTIONAL MATERIALS , PUBLICATIONS , NEWSPAPERS AND MAGAZINES IF THEY MEET CERTAIN CRIT ERIA . THERE ARE A NUMBER, AND I THINK UNDER THE "TEXAS MONTHLY" DECISION , THERE I S SUFFICIENT AMBIGUITY.

JUSTICE: IT WOULD HAVE TO, THEN , BE APPLICABLE ONLY TO RELIGIOUS PUBLICATIONS TO MAKE IT UNCONSTITUTIONAL? IS THAT - -

I THINK IF YOU COULDN'T LOOK TO THE REST OF THE FLORIDA SALES TAX SC HEME AND FIND ANY OTHER EXEMPTIONS THAT IN ANY WAY COULD BE INTERPRETED IN CONJUNCTION, THEN ARG UABLY UNDER "TEXAS MON THLY" UNDER THE NARROW , LOOKING ONLY NARROW TO THESTATUTE THERE , MAY BE SOME DIFFICULTY T O THE "TEXAS MONTHLY".

CHIEF JUSTICE: DO YOU SEE WHERE IT IS THE BOOK SKELER THAT MAKE S THE DETERM INATION -- THE BOOK SELLER THAT MAKES THE DETERMINATION, R ATHER THAN A GOVERNMENTAL E NTITY? THAT IS A CHA NGED DEVELOPMENT DO. AS FAR AS DOES THAT A FFECT THE ON -- AF FECT THE CONSTITUTIONAL ISSUE , A S FAR AS WHO DETERMINES IT?

I THINK IT IS LEFT TO THE BOOKSELLERS . I SEE THAT MY TIME IS RUNNING OUT AND WITH THE COURT'S PERMISSION , MR WILL CONTINUE WITH THE CONSTITUTIONALITY ISSUE.

MAY IT PLEASE THE COURT. KEVIN SHAUGHNESSY ON BEHALF THE FL ORIDA CATHOLIC AND THE " FLORIDA BAPTIST WITNESS". WITH REGA RD TO THE CONSTITUTIONALITY OF THE STATUTE, IT IS CONSTITUTIONAL, BECAUSE THE "TEXAS MONTHLY" CLEARLY H ELD THAT, AND THE CONC URRING OPINION OF JUSTICE BLACKMON THAT YOU HAVE TO LOOK AT THEWHOLE FRAMEWORK THAT WE AREDEALING WITH.

JUSTICE: THERE WERE ALSO OTHER EXEMPTIONS , CORRECT?

THERE WERE OTHER EXEMPTIONS IN THE STATUTEBUT NO EXEMPTIONS FROM THE RECORD IN THAT CASE CONCERNING NONRELIGIOUS PUBLICATIONS, UN LIKE FLORIDA, WHERE THERE ARE NUMEROUS EXEMPTIONS FOR NONRELIGIOUS PUBLICATIONS, AND I THINK THAT IS A IMPORTANT POINT, BECAUSE THE STANDARD THAT WE HAV E HERE IS THAT THIS STATUTE CO MES WITH A PRESUMPTION OF CONSTITUTIONALITY , AND THIS COURT IS EMPOWERED TO LOOKAT IT AND TRY TO INTERPRETIT IN S UCH AWAY TO MAKE IT CONSTITUTIONAL, AND IT IS A VERY HIGH BU RDEN TO FIND A STATUTE UNCONS TITUTIONAL IN THE STATE OF FLOR IDA. GIVEN THAT , IF YOU LOOK AT WHAT THE SUPREME COURT HAS D ONE IN MANY OF THESE CASES, THEY ANALYZED THE ENTIRE STATUTE TO SEE IF THERE IS S OME WAY THAT IT IS NE UTRAL O N ITS FACE , OR IF THERE IS SOME BENE FIT , A SE CULAR PURPOSE THAT IS EXTENDED TO MANY PEOPLE IN SOCIETY OR MANY DIFFERENT RELIGIOUS AND NONRELIGIOUS IN STITUTIONS. THAT IS WHAT THE WAL LS COURT HOLDS.

JUSTICE: IS THERE AN OVERALL PATTERN IN THE TYPE OF PUBLICATIONS THAT ARE G IVEN EXEMPT STATUS UNDER THE STATUTORY SCHEME?

WELL , THE PAT TERN IN FLORIDA IS A FAIRLY BROADONE. IT RANGES FROM RE TIRED EDUCATORS ASSOCIATION PUBLICATION TO EDUCATIONAL TEXTBOOKS , TO SOME COMMUNITYNEWSPAPERS, TO SOME NEWSLETTERS. IT IS A VERY BROAD PATH AND WHAT I WOULD SAY IS IT ENCOURAGES FREEDOM OF SPEECH IN THESE TY PES OF PUBLICATION THAT IS THEY ARE ENCOURAGING , AND THEY TENDTO BE NONPROFIT OR EDUCATIONAL T YPES THAT BENEFIT FROM IT.

CHIEF JUSTICE: DO YOU THINK I T MATTERS TO DETERMINE WHETHER IT IS A RELIGIOUS OR NONRELIGIOUS PUBLICATION?

I THINK IT DOES MATTER BECAUSE YOU AVOID ENTANGLEMENT WITH THE STATE AND THE PUBLISHER SEEKING AN EXEMPTION AND YOU LE AVE IT UP TO, IF YOU WIL L, THE RETAILER. I THINK IT IS IMPORTANT BECAUSE THE WHOLE PURPOSE OF THE SE PARATION OF CHURCH ANDSTATE IS TO AV OI D EXCESSIVE ENTANGLEMENT BETWEEN THEGOVERNMENT AND RELIGIOUS ENTITIES .

JUSTICE: YOUR PRI MARY P OINT IS W E SHOULDN'T REACH THE RELIGIOUS ISSUE FOR PRIMARY STANDING. THAT IS THE ISSUE WE SHOULD DECIDE?

I THINK THE ISSUE THAT YOU SHOULD ADDRESS IS HOW THE CASE WAS FI LED , WHATWERE THE ALLE GATIONS , W HAT WAS THE DECISION OF THE FIRST DCA. I THINK TH OSE STRUGGLES WITH REGARD TO THE STANDING ARESIGNIFICANT OF THE. WHEN YOU TA LK ABOUT A CONSTITUTIONAL ISSUE, THE REC ORD BEL OW IS NOT F ULLY DEVELOPED.

CHIEF JUSTICE: M Y CONCERN IS I THINK THIS HAS SO RT OF EVOLVED , C HANGED O VER THE TIME SIN CE THE COMPLAINT WAS FILED , BUT I WOULDN'T WANT TO PREVENT THE PLAINTIFF , PETITIONER FROM GOING BA CK AND BEING ABLE TO REPLEAD IT , IF THEY STILL ARE INTERESTED IN CHALLE NGING THE CONSTITUTIONALITY OF THE STATUTE , BECAUSE , AND LET ME G O TO THIS, WOULDN'T THEY HAVE, UNDER LE WIS AND HORNE , THE AB ILITY TO , IF THE , AGAIN IF WE REACHED IT BU T IF THEY HAD PROPERLY PLED IT , TO HAVE STANDING BASED ON THE TAXPAYER EXCEPTION TO THE GENERAL STANDING REQUIREMENTS?

I THINK THAT THE VERY GOOD OBSERVATION , CHIEF JUSTICE PARIE NTE , BUT I THINK THEY WOULD HAVE TO GO BACK TO THE VERY BEGINNING, BECAUSE THE SECON D AMENDED COMPLAINT HERE , THEY WERE ASKING TO UPHOLD --

CHIEF JUSTICE: I UNDERSTAND BUT I WOULDN'T WANT SOMEONE ALON G THE WAYIF IT WERE M E PERSONALLY BECAUSE OF THE WAY IT HASALREADY GONE , TO SAY THAT IT HAS AL READY BEEN DETERMIN EDTHAT THEY DON'T HAVE TAXPAYER STANDING.

I THINK IF THEY WENT BACK AND REPLED IT AND SATISFIED THE E LEMENTS OF E ITHER THE DECLARATORY JUDGMENT STATUTE OR STANDING , THEN --

JUSTICE: WHAT ELEMENTS OF THE DECLARATORY JUDGMENT STATUTE WERE THEY --

THERE WASN'T ANY DISPUTED ISSUE WHEN THEY PLED DECLARATORY JUDGMENT. THEY WERE SAYING THAT THEY WANTED TO PLEAD IT.

JUSTICE: WERE THEY UNCERTAIN OF THEIR RIGHTS AS TO THE STAT UTE?

I AM NOT SURE IF THEY PLED IT EXA CTLY THAT WAY BUTIT SEEMS TO ME THAT THEY WERE TRYING TO HAVE THE STATUTE INTERPRETED TOU PHOLD THE CONSTITUTIONALITYOF IT AND NOW SE VERAL YEARS LATER, THEY ARE HERE AT THIS COURT TRYING TO F IND IT UNCONSTITUTIONAL.

JUSTICE: YOU WOULD AGREE THAT THIS COURT HAS SAID THAT THE PUR POSE OF THE DECLARATORY RELIEF IS TO A VOID RELIEF FROM IN SECURITY AND UNCERTAINTY, WITH RESPECT TO RIGHT, STATUS O R OTHER EQUITABLE OR LEGAL RELATION. THIS COURT HAS TAKEN A VERY BROAD STANCE ON DECLARATORY JUDGMENT STATUTE , AND HAS BEEN VERY RELUCTANT TO SAY SOM EONE DOE SN'T HAVE STANDING IF THEY CAN PLEAD THAT THEY ARE AFFECTED BY THE STATUTE .

I WOULD AGREE WI TH THAT , BUT IN THE POSTURE OF THIS CASE WHERE THEY ARE PLEADING FOR THE CONSTITUTIONALITY OF THE STATUTE , AND THEN IT FALLS INTO UNCONSTITUTIONALITY.

CHIEF JUSTICE: BUT THERE ARE TWO STATUTES. WE KEEP TALKING AS IF THERE WERE ONLY ONE STATUTE. THEY AT THE BEGINNING WERE ALLEGING TWO STATUTES UP CONSTITUTIONAL, ONE THAT THEY HAD AN EXEMPTION OR NOTAND THEN THE OTHER, THE ONE FOR THE RELIGIOUS PUBLICATIONS ARE EXEMPT. CORRECT?

THAT'S CORRECT.I SEE THAT MY TIME IS ALMOST EXPIRED .

CHIEF JUSTICE: YES, IT IS EXP IRED. THANK YOU. REBUTTAL.

THANK YOU. I JUST WA NT TO MAKE THE POINT THAT "TEXAS MONTHLY" DIRECTLY ADDRESSEST STATEMAKING THE DECISION VER SUS THE STATE G IVING IT TO THE BOOK SELLERS. THAT WAS PART OF THE "TEXAS MONTHLY " " CASE , AND THE COURT SAID WE DON'T MAKE THAT DECISION. THAT IS UP TO THE --

CHIEF JUSTICE: IF YOU COULD DESI GN A STATUTE , HOW WOULD YOU DESIGN IT? WHAT YOU SAY THAT EVERYONE OUGHT TO BE TAXED? IS THAT WAUR SEE K ING? YOU WANT TAX?

IN TERMS OF EVERY RELIGIOUS PUBLICATION SHOULD BE TAXED, AND IN FACT THAT ARGUMENT THAT WRCF WAS SEEKING NOT TO BE TAXED WAS ALSO CONSIDERED IN BUDLONG , BUT WHAT IT REA LLY COMES BACK TO IS THE COMP LAINT A BOUT THE UNCONSTITUTIONALITY OF THESTATUTE IS THE FACT THAT IT IS CONTENT -BASED.

CHIEF JUSTICE: LE T ME MAKE SU RE I UNDERSTAND. I THO UGHT , YOU ARE SAYING THAT YOU ARE SEEKING RELIEF TO SEE THAT EVERY RELIGIOUS ORGANIZATION SHOULD B E , THAT THEIR PUBLICATIONS SHOULD BE TAXED.

WELL, THE FIRST THIN G WE WERE TR YING TO DO WAS ADDRESS THE STATUTE ABOUT THE ESTABLISHED PHYSICAL LOCATION, BECAUSE THAT WAS T YING THE FREEDOM OF SPE ECH ISSUE TO WHO WAS SAYING , WHO WAS MAKING THE SPEE CH. AND THAT WAS A PROBLEM. THAT BECAME A PROCEDURAL ISSUE. THE LOWER COURT DECIDED THAT REMEDIES HAD NOT BEEN EXHAUSTED ON THAT ISSUE , AND THEREFORE WRCF CHOSE NOT TO PURSUE IT AND SAID , LOOK, THE WHOLE STATUTE , THIS EXEMPTION ITSE LF IS UNCONSTITUTIONAL, SO WE ARE GOING TO JUST GO AFTER THAT .

CHIEF JUSTICE: GI VEN WHAT I CONSIDER A CONCESSION , WHICH IS THAT THIS CASE SEEMS LIKE IT HAS GONE THROUGH A LO T OF CYCLES ANDA LOT OF THINGS HAVE CHANGED. WHAT IS WRONG WITH GIVING YOU AN OPPORT UNITY TO GO BACK TO THE CIRCUIT COURT AND START FROM S QUARE ONE , WHERE YOU WON'T BE BOUND BY ANY RACE ADJUDICATA OR RULEOF THE --

I DON'T THINK THAT WE WOULDN'T BE BOU ND.

CHIEF JUSTICE: -- LAW OF THE CASE S ITUATION.

I DON'T THINK THAT IT WOULD HAPPEN THAT WAY. BECAUSE IT HAS BEEN SO CONVOLUTED AND BECAUSE THE STATE HAS CONSISTENT LYCHANGED , THE STATE HAS VERY CLEARLY DONE ITS JOB. THE STATE'S JOB IS TO TRY TO PROTECT THE CONSTITUTIONALITY OF THESTATUTE , AND THE STATE HAS DONE THAT, AND THEY K EEP CHANGING THEIR POS ITION IN ORDER TO DO THAT. SO I DON'T SEE , I AM QUITE SURE THAT , I F WRCF WERE TO REFILE THIS CASE , THERE WOULD BE ANOT HER SEVERALYEARS OF LITIGATION AS TOWHETHER OR NOT THIS WAS RES JUD ICATA .

JUSTICE: CAN I ASK YOU SOMETHING