Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 1 of 37

No. 16-55425
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREEDOM FROM RELIGION FOUNDATION, INC.,
Plaintiff-Appellee,
v.
CHINO VALLEY UNIFIED SCHOOL DISTRICT
BOARD OF EDUCATION, et al.,
Defendants-Appellants.
On Appeal from the U.S. District Court for the Central District of California
Case No. EDCV 14-2336-JGB (DTBx)
The Honorable Jesus G. Bernal, District Judge
AMICUS CURIAE BRIEF OF ALLIANCE DEFENDING FREEDOM IN
SUPPORT OF CHINO VALLEY UNIFIED SCHOOL DISTRICT BOARD
OF EDUCATION, ET AL., URGING REVERSAL
Kristen K. Waggoner
Brett Harvey
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
Telephone: 480.444.0020
David A. Cortman
ALLIANCE DEFENDING FREEDOM
440 First Street N.W., Suite 600
Washington, D.C. 20001
Telephone: 202.393.8690

Helgi C. Walker
Counsel of Record
Sean J. Cooksey
Kian J. Hudson
Nick Harper*
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Telephone: 202.955.8500
Facsimile: 202.467.0539
Attorneys for Amicus Curiae
Alliance Defending Freedom
*Admitted only in Maryland; practicing under
the supervision of principals of the firm

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 2 of 37

RULE 26.1 CORPORATE DISCLOSURE STATEMENT
Alliance Defending Freedom is a non-profit organization incorporated in the
Commonwealth of Virginia and is recognized as tax-exempt under Section 501(c)(3)
of the Internal Revenue Code.

Alliance Defending Freedom has no parent

corporation. Alliance Defending Freedom has no stock issued to the public, and
accordingly, no publicly held corporation owns 10% or more of any stock of
Alliance Defending Freedom.

Dated: May 3, 2017

/s/ Helgi C. Walker
HELGI C. WALKER

i

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 3 of 37

TABLE OF CONTENTS
Page

RULE 26.1 CORPORATE DISCLOSURE STATEMENT .......................................i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ....................................................................................iv
INTEREST OF AMICUS CURIAE............................................................................1
INTRODUCTION .....................................................................................................3
ARGUMENT .............................................................................................................5
I.

II.

III.

Town of Greece v. Galloway Controls This Case ................................. 5
A.

The Right to Engage in Legislative Prayer Belongs to All
Deliberative Public Bodies ......................................................... 6

B.

School Boards Are Legislative Bodies with a Historical
Tradition of Opening Their Sessions with Prayer ...................... 8

The Board of Education’s Prayer Policy Does Not Offend the
Establishment Clause ..........................................................................11
A.

The Chino Valley Board’s Prayer Policy Does Not
Coerce Participation ..................................................................12

B.

The Plaintiffs Failed to Demonstrate That the Course of
the Prayers Denigrated or Proselytized to Nonbelievers .......... 15

C.

The Chino Valley Board’s Prayer Policy Permits a Broad
Variety of Prayer Givers to Offer Prayers ................................18

The Cases Upon Which the District Court Relied Are
Inapposite ............................................................................................19
A.

Town of Greece Undermines Doe and Coles ............................20

ii

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 4 of 37

B.

The Chino Valley Board’s Student Representative Does
Not Alter the Constitutional Analysis .......................................24

CONCLUSION ........................................................................................................28
CERTIFICATE OF SERVICE ................................................................................29

iii

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 5 of 37

TABLE OF AUTHORITIES
Page(s)
Cases
Am. Humanist Ass’n v. McCarty,
851 F.3d 521 (5th Cir. 2017) ............................. 5, 6, 9, 10, 11, 14, 20, 21, 23, 25
Ariz. Christian Sch. Tuition Org. v. Winn,
536 U.S. 125 (2011) ..............................................................................................1
Cardenas v. United States,
826 F.3d 1164 (9th Cir. 2016) ..............................................................................8
Coles ex rel. Coles v. Cleveland Bd. of Educ.,
171 F.3d 369 (6th Cir. 1999) ......................................................19, 20, 22, 23, 24
Ctr. for Competitive Politics v. Harris,
784 F.3d 1307 (9th Cir. 2015) ............................................................................18
Doe v. Indian River Sch. Dist.,
653 F.3d 256 (3d Cir. 2011) .......................................................19, 20, 22, 23, 24
Freedom from Religion Found. v. Chino Valley
Unified Sch. Dist. Bd. of Educ.,
2016 U.S. Dist. LEXIS 19995 (C.D. Cal. Feb. 18, 2016) ..........15, 16, 17, 18, 19
Good News Club v. Milford Central Sch.,
533 U.S. 98 (2001) ................................................................................................1
John Doe No. 1 v. Reed,
561 U.S. 186 (2010) ............................................................................................18
Lee v. Weisman,
505 U.S. 577 (1992) ................................................................................12, 13, 14
Marsh v. Chambers,
463 U.S. 783 (1983) ..........................................................................3, 6, 7, 15, 20
Pelphrey v. Cobb Cty., Ga.,
547 F.3d 1263 (11th Cir. 2008) ........................................................................7, 8

iv

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 6 of 37

Rosenberger v. Rector and Visitors of the Univ. of Va.,
515 U.S. 819 (1995) ..............................................................................................1
Rubin v. City of Lancaster,
710 F.3d 1087 (9th Cir. 2013) ............................................................7, 11, 15, 17
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) ................................................................................12, 13, 22
Town of Greece v. Galloway,
134 S. Ct. 1811 (2014) ............................................................................................
.................................... 1, 3, 4, 6, 7, 8, 9, 11, 12, 13, 14, 15, 17, 19, 21, 22, 23, 25
Zelman v. Simmons-Harris,
536 U.S. 639 (2002) ..............................................................................................1
Statutes
CAL. EDUC. CODE § 5223 ...........................................................................................8
CAL. EDUC. CODE § 35012 .................................................................................25, 27
CAL. EDUC. CODE § 35141 .........................................................................................8
CAL. EDUC. CODE § 35145 .........................................................................................8
CAL. EDUC. CODE § 35160 .........................................................................................9
CAL. EDUC. CODE § 35160.1 ......................................................................................9
CAL. EDUC. CODE § 35161 .........................................................................................9
CAL. EDUC. CODE § 35164 .........................................................................................9
CAL. GOV’T CODE § 54951 ........................................................................................8
CAL. GOV’T CODE § 54952 ........................................................................................8
Other Authorities
Chino Valley Unified School District, Meetings Dates, Agendas,
Minutes, and Videos ...........................................................................................27

v

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 7 of 37

City of Conway (South Carolina) City Council, Meeting Minutes
(July 12, 2016) ....................................................................................................24
City of Statesboro (Georgia) City Council, Meeting Minutes
(May 3, 2016)......................................................................................................24
Cottage Grove (Oregon) City Council, Meeting Minutes
(April 25, 2016) ..................................................................................................22
Journal of the Board of Education of the State of Iowa, at Its First
Session (1858) .....................................................................................................10
Mission Viejo (California) City Council, Meeting Minutes
(Jan. 12, 2016).....................................................................................................22
Murrieta (California) City Council, Meeting Minutes (April 19, 2016) .................22
National School Boards Association, Students Serving on Local
School Boards (Feb. 2009) .................................................................................26
New York City Council, Meeting Minutes (Feb. 5, 2016) ......................................24
Ohio House of Representatives Journal, 131st Sess. (April 20, 2016) ................... 22
Proceedings of the School Committee of Boston (1869) .........................................10
Proceedings of the School Committee of the City of Boston (1886) .......................10
Proceedings of the School Committee of the City of Boston (1905) .......................10
Reports of Proceedings of the City Council of Boston for the Year
Commencing Jan. 1, 1909, and Ending Feb. 5, 1910 (1910) ............................... 9
Second Annual Report of the Controllers of the Public Schools of the
First School District of the State of Pennsylvania (1820) ..................................10
Washington Journal of the Senate, 2016 Reg. Sess. (Feb. 3, 2016) ........................22

vi

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 8 of 37

INTEREST OF AMICUS CURIAE 1
Alliance Defending Freedom is a non-profit, public interest legal organization
that provides strategic planning, training, funding, and direct litigation services to
protect our first constitutional liberty—religious freedom. Since its founding in
1994, Alliance Defending Freedom has played a role, either directly or indirectly, in
dozens of cases before the United States Supreme Court, and hundreds more before
lower courts. Many of those cases have involved the intersection of religious
freedom with education-related institutions and issues, including the following
Supreme Court cases: Arizona Christian School Tuition Organization v. Winn, 536
U.S. 125 (2011); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Good News Club
v. Milford Central School, 533 U.S. 98 (2001); and Rosenberger v. Rector and
Visitors of the University of Virginia, 515 U.S. 819 (1995). Alliance Defending
Freedom was also merits co-counsel for petitioners in the most recent case in which
the Supreme Court upheld the constitutionality of legislative prayer, Town of Greece
v. Galloway, 134 S. Ct. 1811, 1819, 1823 (2014), and has played a role, either

1

Pursuant to Federal Rule of Appellate Procedure 29, counsel for amicus curiae
states that no counsel for a party authored this brief in whole or in part, and no
party or counsel for a party, or any other person other than amicus curiae and its
counsel, made a monetary contribution intended to fund the preparation or
submission of this brief. All parties have consented to the filing of this brief.
1

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 9 of 37

directly or indirectly, in many other cases throughout the country involving
legislative-prayer issues.
Recognizing that an affirmance in this case would run contrary to its efforts
to ensure the Establishment Clause is not interpreted in a manner that requires
government hostility to religion or otherwise incorrectly limits religious freedom
protected by the United States Constitution—and, in particular, is not interpreted in
a manner that spuriously circumscribes the ability to engage in legislative prayer—
Alliance Defending Freedom submits this brief pursuant to Federal Rule of
Appellate Procedure 29 to highlight the substantial flaws in the District Court’s
analysis.

2

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 10 of 37

INTRODUCTION
Beginning in 1789, and throughout the more than 200 years since, Congress
has opened every session with a chaplain’s prayer. Before that, the Continental
Congress too started its sessions with an invocation. And across the country today,
at every level of federal, state, and local government, other legislative bodies do the
same. As the Supreme Court recognized in Marsh v. Chambers, and reaffirmed in
Town of Greece v. Galloway, this “unambiguous and unbroken” tradition of
legislative prayer is consistent with the First Amendment’s Establishment Clause.
This rule applies no differently when a school board practices legislative prayer than
when Congress does, and the Chino Valley Board of Education’s prayer policy is
constitutional.
Marsh and Town of Greece set forth a clear standard for determining which
government bodies are included within this tradition, and what they may do: All
“legislative and other deliberative public bodies” may open sessions with prayer.
Marsh v. Chambers, 463 U.S. 783, 786 (1983). Legislative-prayer policies are
presumptively constitutional unless (1) they coerce participation in the prayers, (2)
they “denigrate nonbelievers or religious minorities, threaten damnation, or preach
conversion” over time, or (3) the process for selecting the prayer giver discriminates
based on the speaker’s faith. Town of Greece v. Galloway, 134 S. Ct. 1811, 1820–
24 (2014). The Chino Valley Board’s prayer policy fits squarely within this

3

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 11 of 37

framework. Indeed, it is a near carbon copy of the prayer policy the Supreme Court
upheld in Town of Greece. Most critically, the Board is indisputably a legislative
body. Like the town board in Town of Greece and the state legislature in Marsh, the
Chino Valley Board consists of elected members who meet in regular, open sessions
and make public policy.
The Board’s prayer policy is therefore presumptively constitutional, and the
plaintiffs cannot show that it otherwise violates the Establishment Clause. First, the
policy does not coerce participation. As in Town of Greece, the Board’s invocations
are directed at the Board members, and those who do not wish to participate in the
prayers are free to come and go as they please. Second, the Board’s prayer policy,
in its real operation over time, has not led to a practice of prayers that “denigrate
nonbelievers or religious minorities, threaten damnation, or preach conversion.”
Town of Greece, 134 S. Ct. at 1823. The Board’s policy does not direct attendees to
participate, criticize religious dissenters, or suggest that the Board would favor those
who participate in the prayers (or disfavor those who do not). Finally, in selecting
prayer givers, the Board does not discriminate on the basis of faith. Just like in Town
of Greece, the Board invites a wide pool of clergy and religious leaders from the
community to deliver the invocations.
The District Court erred by failing to apply this framework to the Board’s
prayer policy. Instead, it mistakenly applied a test meant for an entirely different

4

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 12 of 37

context—prayer within public schools. The District Court reached this faulty
outcome by relying on two out-of-circuit cases that pre-date Town of Greece. But
those decisions failed to recognize that the legislative-prayer framework applies to
all legislative bodies—school boards included—and their holdings distinguishing
Marsh have been abrogated by Town of Greece. The District Court’s error is made
all the more apparent by the Fifth Circuit’s recent decision upholding a school
board’s prayer policy—the only court of appeals decision that has addressed school
board prayer since Town of Greece. The Fifth Circuit upheld the school board’s
prayer policy because school boards are “[i]n no respect . . . less a deliberative
legislative body” than a town board or any other legislature. Am. Humanist Ass’n v.
McCarty, 851 F.3d 521, 526 (5th Cir. 2017). Like the Fifth Circuit, this Court should
hold that school boards are deliberative public bodies entitled to engage in legislative
prayer under Town of Greece, and it should reverse the District Court.
ARGUMENT
I.

Town of Greece v. Galloway Controls This Case.
The District Court applied the wrong doctrine in this case. As the Fifth Circuit

recently concluded, the legislative-prayer framework articulated by Marsh and Town
of Greece governs prayer at school board meetings because school boards are
legislative bodies. See Am. Humanist Ass’n, 851 F.3d at 526. In contrast, the District
Court in this case held that Town of Greece does not apply to school boards, and

5

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 13 of 37

instead followed a line of cases wholly irrelevant to these facts. This Court should
correct the District Court’s error and avoid creating a circuit split.
A.

The Right to Engage in Legislative Prayer Belongs to All
Deliberative Public Bodies.
The United States has an “unambiguous and unbroken history” of

legislative prayer. Marsh, 463 U.S. at 792. This history demonstrates that opening
sessions of legislative bodies with an invocation is not an establishment of religion,
or even a step toward it.
The Supreme Court in Marsh v. Chambers considered the Nebraska
Legislature’s practice of using a state-paid chaplain to open each legislative day with
a prayer, but the Court did not limit its holding to those facts. Id. at 784–85. Rather,
Marsh held that “[t]he opening of sessions of legislative and other deliberative public
bodies with prayer is deeply embedded in the history and tradition of this country,”
and thus does not offend the Establishment Clause. Id. at 786–91. The Court
broadly affirmed the right of every “public body entrusted with making the laws” to
begin its meetings by “invok[ing] Divine guidance.” Id. at 792.
The Court strengthened that holding in Town of Greece v. Galloway, where it
examined the prayer policy of the seven-member town board of Greece, New York.
Since 1999, the town board had maintained a policy of inviting local clergy to deliver
an invocation at the start of each meeting, oftentimes with sectarian prayer. Town
of Greece, 134 S. Ct. at 1816. This policy created several factual contrasts with
6

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 14 of 37

Marsh: The prayers before the Greece town board often invoked Jesus Christ and
had other sectarian content; those offering the prayers were local volunteers, not paid
chaplains; the setting of the proceedings was more intimate; and the audience was
more likely to contain ordinary citizens, including children. See id. at 1831 (Alito,
J., concurring); id. at 1846–47 (Kagan, J., dissenting). But the Court held that these
were not meaningful distinctions such that they changed the analysis under Marsh.
Id. at 1819.
Constitutionally permitted legislative prayer includes prayer that opens
meetings of all “legislative and other deliberative public bodies,” big and small.
Marsh, 463 U.S. at 786. As this Court has said, Marsh “upheld legislative prayer in
general” for deliberative public bodies, not just for a particular subset of legislatures.
Rubin v. City of Lancaster, 710 F.3d 1087, 1091 (9th Cir. 2013) (emphasis added).
And rightly so. Whether legislative prayer occurs during the opening session of
Congress or at a town board meeting, the proper place for such prayer has never
depended on the legislature’s size or the legislative subject matter. See Town of
Greece, 134 S. Ct. at 1817–24; Pelphrey v. Cobb Cty., Ga., 547 F.3d 1263, 1275–
78 (11th Cir. 2008) (upholding legislative prayer at meetings of the Cobb County
Planning Commission, a sub-unit of the County Commission).

Rather, for

legislatures of all shapes and sizes, this historical practice “lends gravity to public
business, reminds lawmakers to transcend petty differences in pursuit of a higher

7

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 15 of 37

purpose, and expresses a common aspiration to a just and peaceful society.” Town
of Greece, 134 S. Ct. at 1818. That reasoning applies with equal force to school
boards.
B.

School Boards Are Legislative Bodies with a Historical Tradition
of Opening Their Sessions with Prayer.

When examining any school district, town board, or city council, one is likely
to find the same essential features. These governmental bodies exercise limited
legislative authority, and are created under state law. See CAL. GOV’T CODE § 54952
(West) (defining the “governing body of a local agency” as a “legislative body”); id.
§ 54951 (defining a “school district” as a “local agency”); see also Pelphrey, 547
F.3d at 1275. They have only a handful of locally elected members—positions that
are part-time, often for little or no remuneration. See Town of Greece, 134 S. Ct. at
1826 (Kennedy, J.); see also CAL. EDUC. CODE § 5223 (West). 2 They meet in regular
sessions, and by law, those meetings are open to the public. See CAL. EDUC. CODE
§§ 35141, 35145 (West). At those meetings, the board conducts various legislative
and administrative business, such as granting awards, hearing citizens’ input,
approving budgets, and making public policy by majority vote. See Town of Greece,

2

Part II.B of Justice Kennedy’s opinion in Town of Greece did not garner the
support of five Justices. Nonetheless, it is controlling authority in this Court as
the narrowest opinion on this issue. See Cardenas v. United States, 826 F.3d
1164, 1171 (9th Cir. 2016).
8

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 16 of 37

134 S. Ct. at 1826 (Kennedy, J.); see also CAL. EDUC. CODE §§ 35160, 35160.1,
35161, 35164 (West). So while a school board’s purview—approving school
budgets, choosing curriculum, and filling administrative positions—may be
somewhat narrower than a town board’s, a school board is “[i]n no respect . . . less
a deliberative legislative body than [a] town board.” Am. Humanist Ass’n, 851 F.3d
at 526.
Nor are school boards unique among legislative bodies when it comes to
legislative prayer. When the Court upheld the constitutionality of legislative prayer
for town boards, it cited, among other things, historical evidence of legislative prayer
by city councils. Town of Greece, 134 S. Ct. at 1819 (citing Reports of Proceedings
of the City Council of Boston for the Year Commencing Jan. 1, 1909, and Ending
Feb. 5, 1910 1–2 (1910)). Prayer to open school board meetings has the same
historical pedigree.
For instance, “dating from the early nineteenth century, at least eight states
had some history of opening prayers at school-board meetings.” Am. Humanist
Ass’n, 851 F.3d at 527. In one of the very first reports submitted by the Controllers
of the Public Schools for Philadelphia, Pennsylvania, in 1820, the board included a
religious petition seeking “the interposition, and blessing, of the beneficent Ruler of

9

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 17 of 37

all things.”3 Similarly, the School Committee of Boston consistently began its
meetings with a prayer from a clergy member. 4 And at a meeting of the Board of
Education of Iowa in 1858, the board adopted the following resolution: “Resolved,
That the Pastors of the churches in this city be invited by the President, as heretofore,
to open the daily sessions of the Board with prayer, in such order as may suit their
convenience.” Journal of the Board of Education of the State of Iowa, at Its First
Session 15 (1858). It is this same policy and tradition that the Chino Valley Board
seeks to continue.
Based on these same factors—the legislative nature of school boards and the
long tradition of school board prayer—the Fifth Circuit recently held that a school
board is equally entitled to engage in legislative prayer as a city council or town
board. See Am. Humanist Ass’n, 851 F.3d at 526–30. The school board there, like
the Chino Valley Board, was a “deliberative legislative body” engaged in
“undeniably legislative” activities, such as “adopting budgets, collecting taxes,

3

Second Annual Report of the Controllers of the Public Schools of the First School
District of the State of Pennsylvania 6–7 (1820).

4

See, e.g., Proceedings of the School Committee of Boston 3 (1869), available at
https://archive.org/details/proceedingsofsch1869bost (last visited May 2, 2017);
Proceedings of the School Committee of the City of Boston 3 (1886), available at
https://archive.org/details/proceedingsofsch1886bost (last visited May 2, 2017);
Proceedings of the School Committee of the City of Boston 3 (1905), available at
https://archive.org/details/proceedingsofsch1905bost (last visited May 2, 2017).
10

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 18 of 37

conducting elections, [and] issuing bonds.” Id. at 526. The board’s legislative
nature, combined with the “history of opening prayers at school-board meetings,”
“dating from the early nineteenth century,” compelled the conclusion that the
board’s prayer policy fit within the legislative-prayer framework articulated by
Marsh and Town of Greece. Id. at 525–28.
So too here. Given school boards’ design and history—especially compared
to town councils and other local governmental bodies—there can be no doubt that
the Establishment Clause permits the Chino Valley Board to follow the tradition of
opening its meetings with prayer. Like Town of Greece, this case “falls within the
ambit of Marsh v. Chambers.” Rubin, 710 F.3d at 1091.
II.

The Board of Education’s Prayer Policy Does Not Offend the
Establishment Clause.
Under Town of Greece, legislative-prayer practices do not offend the

Establishment Clause absent a showing (1) that they coerce prayer participation, (2)
that the prayers over time “denigrate nonbelievers or religious minorities, threaten
damnation, or preach conversion,” or (3) that the process for selecting the prayer
giver discriminates based on the speaker’s faith. Town of Greece, 134 S. Ct. at 1820–
24. The plaintiffs have shown none of these.

11

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 19 of 37

A.

The Chino Valley Board’s Prayer Policy Does Not Coerce
Participation.

Because the Chino Valley Board of Education is a “local legislative bod[y],”
Town of Greece permits its members to begin their meetings with prayer—even
sectarian prayer. 134 S. Ct. at 1819. But the “elemental First Amendment principle”
of non-coercion still applies. Id. at 1825 (Kennedy, J.). In the legislative-prayer
context, as elsewhere, whether a prayer policy is coercive “must be evaluated against
the backdrop of historical practice.” Id. And as the Court recognized in Town of
Greece, several features of traditional legislative prayer make the practice less likely
to coerce religious exercise than, for example, the prayers offered at public school
graduations and football games that the Court found problematic in Lee v. Weisman,
505 U.S. 577 (1992), and Santa Fe Independent School District v. Doe, 530 U.S.
290 (2000), respectively.
First, the long tradition of legislative prayer has two important consequences:
It leads a reasonable observer to understand that the prayers’ purpose is to “lend
gravity to public proceedings and to acknowledge the place religion holds in the
lives of many private citizens, not to afford government an opportunity to
proselytize.” Id. at 1825 (Kennedy, J.). And it indicates that dissenting observers’
“quiet acquiescence will not, in light of our traditions, be interpreted as an agreement
with the words or ideas expressed.” Id. at 1827 (Kennedy, J.). By contrast, in Lee
and Santa Fe, the Court concluded that a football game attendee will “perceive the
12

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 20 of 37

inevitable pregame prayer as stamped with her school’s seal of approval,” Santa Fe,
530 U.S. at 308, and that “a reasonable dissenter in this [public school graduation]
milieu could believe that the group exercise [of standing during the invocation]
signified her own participation or approval of it,” Lee, 505 U.S. at 593.
Second, legislative prayers are directed principally at the “lawmakers
themselves,” who use the prayers to “show who and what they are.” Town of Greece,
134 S. Ct. at 1825–26 (Kennedy, J.); see also Am. Humanist Ass’n, 851 F.3d at 526–
27, 529 (legislators need only be the “primary audience” of the prayer).

When

prayers are not directed at members of the public, the risk of coercion is reduced.
Town of Greece, 134 S. Ct. at 1826 (Kennedy, J.). The prayers at issue in Lee and
Santa Fe, on the other hand, were found to be expressly directed towards the public
at large, and the prayers were ostensibly for their benefit.

Thus, the Court

determined that the risk some members of the audience would feel coerced would
inevitably increase. See Lee, 505 U.S. at 583; Santa Fe, 530 U.S. at 307.
Third, in meetings of legislative bodies—even small, local ones—attendees
and participants “are ‘free to enter and leave with little comment and for any number
of reasons.’” Town of Greece, 134 S. Ct. at 1827 (Kennedy, J.) (quoting Lee, 505
U.S. at 597). There is nothing to dissuade members of the public “from leaving . . .
during the prayer, arriving late, or even . . . making a later protest.” Id.; see also Am.

13

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 21 of 37

Humanist Ass’n, 851 F.3d at 526–27 (upholding school board prayer policy based in
part on attendees’ ability to leave or arrive late).
Finally, most legislative-prayer policies, like the ones in this case and in Town
of Greece, leave “the guest clergy free to compose their own devotions.” 134 S. Ct.
at 1816. Because the government does not control the content of the prayers, there
is no sense in which it gives its imprimatur to the prayers’ religious content, which
in turn reduces the likelihood of coercion. In contrast, the Court in Lee repeatedly
emphasized the school’s guidelines on theological content to demonstrate the control
of the relevant government official (the principal) over the graduation prayers. See
Lee, 505 U.S. at 588, 597 (“At a high school graduation, teachers and principals must
and do retain a high degree of control over the precise contents of the program.”).
The Chino Valley Board of Education’s practice of inviting local members of
the clergy to open meetings with prayer shares those features upheld in Town of
Greece. The invocations that open the Board’s meetings are expressly directed at
Board members themselves. The Board’s policy states that the prayer’s purpose is
to “solemnize proceedings of the Board of Education.” 2 ER 72. And both students
and attendees who do not want to participate in the prayer can easily step outside the
room or arrive a few minutes late. Finally, the members of the Board have expressly
relinquished control over the content of the prayers offered at their meetings: The
Board informs interested religious leaders that they “are free to offer the invocation

14

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 22 of 37

according to the dictates of [their] own conscience,” which is consistent with the
limits set out in Town of Greece. 2 ER 73; 134 S. Ct. at 1822.
The plaintiffs have failed to show that Board members have engaged in any
of the behaviors the Court identified as coercive in Town of Greece, such as
“direct[ing] the public to participate in the prayers, singl[ing] out dissidents for
opprobrium, or indicat[ing] that their decisions might be influenced by a person’s
acquiescence in the prayer opportunity.” Id. at 1826. The district court reasoned
that the Board’s prayers were coercive in part because the Board “metes out
discipline” at its meetings. Freedom from Religion Found. v. Chino Valley Unified
Sch. Dist. Bd. of Educ., 2016 U.S. Dist. LEXIS 19995, at *51 (C.D. Cal. Feb. 18,
2016). But students who attend Board meetings for disciplinary hearings are entirely
unaffected by the prayer policy because those hearings are held in closed sessions
that occur before the public meetings in which prayer is offered. See 2 ER 44. As a
result, there is nothing in the record that suggests that the Chino Valley Board’s
prayer practice coerces participation in the prayers.
B.

The Plaintiffs Failed to Demonstrate That the Course of the
Prayers Denigrated or Proselytized to Nonbelievers.

The Court in Town of Greece stated that it would have been a “different case”
if the plaintiffs there had shown that the “the course and practice [of the prayers]
over time . . . denigrate nonbelievers or religious minorities, threaten damnation, or
preach conversion.” Town of Greece, 134 S. Ct. at 1823; see also Marsh, 463 U.S.
15

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 23 of 37

at 794–95; Rubin, 710 F.3d at 1097 (holding that the constitutionality of a
legislative-prayer practice turned on “whether the City itself has taken steps to
affiliate itself with Christianity”). But just like in Town of Greece, the plaintiffs here
have not shown anything of the sort.
The plaintiffs have failed to point to any instances—let alone a practice over
time—in which the Board’s prayers criticized, denigrated, or threatened anyone, or
preached religious conversion. In fact, the prayers opening the Board’s meetings are
broadly similar to the prayers the Court approved in Town of Greece. This is not
surprising, because the Board’s prayer policy requires every invitation sent to a
prospective invocation giver to request “that the prayer opportunity not be exploited
as an effort to convert others to the particular faith of the invocational speaker, nor
to disparage any faith or belief different from that of the invocational speaker.” 2
ER 68.
The plaintiffs have noted a handful of instances when individual Board
members either justified their political opinions in terms of their religious beliefs or
commended their beliefs to the public. But those statements are wholly unrelated to
the prayer policy: They were allegedly made by Board members hours after the
opening prayers, generally during the “Communications” segment of meetings prior
to adjournment. See 2 ER 47–50; Freedom from Religion Found., 2016 U.S. Dist.

16

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 24 of 37

LEXIS 19995, at *16–18. The statements therefore have no bearing on the prayer
policy’s constitutionality.
Even if comments made outside the scope of a legislative prayer could affect
its constitutionality, the few comments alleged in this case would be insufficient to
render the Board’s entire prayer policy constitutionally invalid.

Courts must

examine whether the legislative-prayer practice proselytizes “over time.” Town of
Greece, 134 S. Ct. at 1823; see also Rubin, 710 F.3d at 1092. In Town of Greece
itself, some of the prayers “disparaged those who did not accept the town’s prayer
practice,” but these episodes did not “despoil a practice that on the whole reflects
and embraces our tradition.” 134 S. Ct. at 1824. Neither can a few stray statements
by Board members—entirely disconnected from the opening prayers themselves—
nullify a constitutionally valid prayer policy.
Whatever the propriety of the identified statements by individual Board
members, they are irrelevant to the constitutionality of the Board’s prayer policy in
a facial attack.5 The plaintiffs sought and received a judgment declaring the prayer

5

The District Court correctly recognized that this case presents two issues: one
concerning the constitutionality of the Board’s prayer policy, and the other
concerning the constitutionality of “the Board’s practice of praying, reading from
the Bible and proselytizing religious messages after the opening prayer.”
Freedom from Religion Found. v. Chino Valley Unified Sch. Dist. Bd. of Educ.,
2016 U.S. Dist. LEXIS 19995, at *61 (C.D. Cal. Feb. 18, 2016) (emphasis
added). It is the understanding of amicus that the latter practices no longer occur.

17

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 25 of 37

policy unconstitutional. Freedom from Religion Found., 2016 U.S. Dist. LEXIS
19995, at *63–64. If allowed to stand, this judgment will ban the Board from ever
enforcing its policy, regardless of its membership. Such extraordinary relief is
appropriate only if the plaintiffs can establish that the prayer policy, in every
application, necessarily violates the Establishment Clause, which they cannot. See
Ctr. for Competitive Politics v. Harris, 784 F.3d 1307, 1314 (9th Cir. 2015) (citing
John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010)). These isolated remarks, made
apart from the opening invocations, do not bear on the constitutionality of the prayer
policy, and nothing in the record indicates that the policy itself is infirm.
C.

The Chino Valley Board’s Prayer Policy Permits a Broad Variety
of Prayer Givers to Offer Prayers.

It is undisputed that the Board’s prayer policy includes a mechanism that
provides opportunities for a broad variety of prayer givers to offer prayers at Board
meetings.

The policy expressly states: “To ensure that such person (the

‘invocational speaker’) is selected from among a wide pool of the District’s
clergy/religious leaders, on a rotating basis, the invocational speaker shall be
selected according to the following procedure . . . .” Freedom from Religion Found.,
2016 U.S. Dist. LEXIS 19995, at *10. It then lays out a robust procedure, using a
database of all religious congregations in the school district, to contact religious

See Appellants’ Opening Brief at 54–58. Accordingly, amicus addresses only
the prayer policy.
18

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 26 of 37

leaders of each congregation annually and offer them the opportunity to volunteer to
offer a prayer. Id.
Suffice it to say, the Board’s procedure for rotating prayer givers and drawing
them broadly from the community fully comports with the legislative-prayer policy
approved in Town of Greece. That policy featured “reasonable efforts to identify all
of the congregations within its borders” and to welcome representatives of such
congregations to offer prayers. Town of Greece, 134 S. Ct. at 1824.
*

*

*

Given the non-coercive nature of the Board’s prayer policy, the lack of any
pattern of denigrating or proselytizing prayers over time, and the policy’s method of
identifying prayer givers, the Board’s prayer policy plainly does not offend the
Establishment Clause. See id. The District Court’s order holding the prayer policy
unconstitutional and enjoining its use was therefore erroneous, and this Court should
reverse.
III.

The Cases Upon Which the District Court Relied Are Inapposite.
The District Court rejected this straightforward application of Marsh and

Town of Greece. Instead, it relied on two cases from the Third and Sixth Circuits,
both of which concluded that prayer during school board meetings should be
analyzed under the Supreme Court’s school-prayer framework. See Doe v. Indian

19

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 27 of 37

River Sch. Dist., 653 F.3d 256 (3d Cir. 2011); Coles ex rel. Coles v. Cleveland Bd.
of Educ., 171 F.3d 369 (6th Cir. 1999).
The District Court’s reliance on Doe and Coles was misplaced. As the Fifth
Circuit recently acknowledged in upholding a school board’s prayer policy, Town of
Greece undermines the reasoning of those decisions. Am. Humanist Ass’n, 851 F.3d
at 528–29. Moreover, making the constitutionality of school board prayer turn on
the level of student participation—as the courts did in Doe and Coles—would give
rise to an unworkable constitutional test and would put to states and school boards a
perverse choice between foreclosing student participation or forgoing legislative
prayer.
A.

Town of Greece Undermines Doe and Coles.

In holding that invocations prior to school board meetings violate the
Establishment Clause, the Third and Sixth Circuits lacked a critical guidepost: Town
of Greece. Without that guidance, those courts misunderstood Marsh and focused
on factors irrelevant to the constitutionality of a legislative-prayer policy. Marsh
held that a ceremonial prayer to “open[ ] sessions of legislative and other
deliberative public bodies” does not offend the Constitution. Marsh, 463 U.S. at
786 (emphasis added). The Third and Sixth Circuits acknowledged that school
boards could be considered “deliberative public bodies,” yet refused to apply
Marsh’s framework. To reach that result, they characterized Marsh as a “historical

20

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 28 of 37

aberration” that the Supreme Court has refused to apply “outside of its narrow
historical context.” Coles, 171 F.3d at 383; Doe, 653 F.3d at 281. In other words,
the Third and Sixth Circuits branded Marsh as an exception to Establishment Clause
doctrine, one limited to Congress and state legislatures.
Town of Greece refutes that reading of Marsh. The Court explained that
Marsh did not “‘carv[e] out an exception’ to the Court’s Establishment Clause
jurisprudence,” but “teaches instead that the Establishment Clause must be
interpreted by reference to historical practices and understandings.” Id. at 1818–19
(quotation marks omitted). And as discussed above, the Court in Town of Greece
concluded that the invocation practices of all “local legislative bodies”
presumptively “fit[ ] within the tradition long followed in Congress and the state
legislatures.” 134 S. Ct. at 1819. The Fifth Circuit has confirmed that holding,
applying Marsh’s framework in a case involving a school board’s legislative prayer.
See Am. Humanist Ass’n, 851 F.3d at 525–30. Without the benefit of the Supreme
Court’s decision in Town of Greece, the Third and Sixth Circuits’ opinions start from
an invalid premise. Marsh and Town of Greece are the rule for all legislative-prayer
cases, not the exception.
Furthermore, both the Third and Sixth Circuits attempted to distinguish school
board prayer from other legislative prayer by emphasizing factors that, after Town
of Greece, are constitutionally irrelevant. Those courts reasoned that school board

21

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 29 of 37

prayer is distinct from, and more coercive than, other forms of legislative prayer,
primarily because students actively participate in school board meetings, for
example, by receiving honors, leading the Pledge of Allegiance, and serving as
student representatives to the board. See Doe, 653 F.3d at 276–78; Coles, 171 F.3d
at 382.
But active student participation hardly distinguishes school boards from other
legislative bodies. At city council meetings, for instance, high school students
commonly receive awards, recite the Pledge of Allegiance, and serve as student
representatives to the council. 6 And student participation is exceedingly common in
state legislatures as well. 7

To that point, in Town of Greece, the majority,

6

See, e.g., Mission Viejo (California) City Council, Meeting Minutes, at 2 (Jan.
12, 2016) (presenting awards), available at https://docs.google.com
/gview?url=https://missionviejo.granicus.com/DocumentViewer.php%3Ffile%3
Dmissionviejo_70a045f66f544c127ae606e48492a5f2.pdf%26view%3D1&emb
edded=true (last visited May 2, 2017); Murrieta (California) City Council,
Meeting Minutes (April 19, 2016) (reciting Pledge of Allegiance), available at
http://www3.murrieta.org/sirepub/mtgviewer.aspx?meetid=639&doctype=MIN
UTES (last visited May 2, 2017); Cottage Grove (Oregon) City Council, Meeting
Minutes, at 1 (April 25, 2016) (youth representative), available at
http://www.cottagegrove.org/sites/default/files/fileattachments/mayor_amp_city
_council/meeting/1002/april_25_2016_minutes.pdf (last visited May 2, 2017).

7

See, e.g., Ohio House of Representatives Journal, 131st Sess., at 1371 (April 20,
2016), available at http://www.ohiohouse.gov/session/session-journals (last
visited May 2, 2017); 143 Washington Journal of the Senate, 2016 Reg. Sess., at
3
(Feb.
3,
2016),
available
at
http://leg.wa.gov/Senate/SDJ
/Documents/2016/SJ_16_024.pdf (last visited May 2, 2017).
22

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 30 of 37

concurring, and dissenting opinions uniformly recognized that children actively
participated in town board meetings. See Town of Greece, 134 S. Ct. at 1827
(Kennedy, J.); id. at 1831 (Alito, J., concurring); id. at 1846 (Kagan, J., dissenting).
Yet the Court did not even hint that participation by minors is a relevant factor in
assessing the constitutionality of legislative prayer. See Am. Humanist Ass’n, 851
F.3d at 527–28. That was no oversight. The respondents in Town of Greece devoted
several pages of their brief to the argument that the town board’s prayer was
unconstitutionally coercive because children “regularly attend and actively
participate” in the town board meetings. Brief for Respondents at 6–8, 22, 27–28,
Town of Greece, 134 S. Ct. 1811 (No. 12-696). In declining to adopt respondents’
position, the Court necessarily concluded that at least some level of participation by
minors in a legislative prayer is constitutionally tolerable.
The Third and Sixth Circuits also distinguished school boards from other
legislative bodies based on the scholastic focus of their meetings. The courts
observed that school boards deal with school-related issues and often hold meetings
on school property. See Doe, 653 F.3d at 278; Coles, 171 F.3d at 381. But the Court
in Town of Greece never suggested that the legislative meeting’s location or subject
matter somehow changes the constitutional rule. And it is difficult to see why those
factors would matter: Neither has any bearing on the coerciveness of a legislativeprayer policy. If the meeting location or legislative subject matter were relevant, the

23

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 31 of 37

prayer practices of many other local bodies—practices deemed constitutional by
Town of Greece—would be called into question. After all, town boards and city
councils often address issues related to public education.8 And it is not uncommon
for local legislative bodies to hold meetings at schools. 9 Nothing in Town of Greece
suggests that a town board or city council may engage in legislative prayer only
when the specific legislative session is unrelated to public education.
In short, neither Doe nor Coles is a persuasive authority. After Town of
Greece, it is doubtful those decisions survive as viable precedents within their own
circuits. They certainly should not serve as authorities for this Court.
B.

The Chino Valley Board’s Student Representative Does Not Alter
the Constitutional Analysis.

In determining that school board prayer falls outside the legislative-prayer
framework, the Third and Sixth Circuits placed particular emphasis on one form of
student participation in school board meetings—namely, participation by students
who regularly attend school board meetings as student representatives to the board.

8

See, e.g., New York City Council, Meeting Minutes, at 30, 34 (Feb. 5, 2016),
available at http://on.nyc.gov/1mAMGSI (last visited May 2, 2017).

9

See, e.g., City of Statesboro (Georgia) City Council, Meeting Minutes, at 1 (May
3, 2016), available at http://www.statesboroga.gov/wp-content/uploads/
formidable/05-03-2016-Council-minutes-.pdf (last visited May 2, 2016); City of
Conway (South Carolina) City Council, Meeting Minutes, at 1 (July 12, 2016),
available at http://www.cityofconway.com/Minutes.7.12.16.pdf (last visited
May 2, 2017).
24

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 32 of 37

See Doe, 653 F.3d at 264; Coles, 171 F.3d at 383. The Chino Valley Board has a
similar student representative from a district high school, who sits with the Board
and may cast nonbinding votes at meetings. See 2 ER 46; CAL. EDUC. CODE
§ 35012(d).
That fact does not affect the constitutional analysis. Town of Greece compels
the conclusion that student participation in a legislative meeting does not preclude
the legislative body from offering an opening prayer. See Town of Greece, 134 S.
Ct. at 1827 (Kennedy, J.). Drawing the constitutional line, as the Third and Sixth
Circuits did, based on the level of student participation would lead to patchwork
application of the Establishment Clause across states, within states, and even among
different meetings of the same school board. 10
If the level of student participation is the critical factor that distinguishes
permissible and impermissible legislative prayer, then in every case involving school
board prayer, courts will need to ask whether there is in fact a constitutionally
intolerable level of student participation in school board meetings, with no ability to

10

The Fifth Circuit in American Humanist Association did not need to address the
specific issue of student representatives because “no students [sat] on the BISD
board . . . and the student representatives [were] not expected to attend board
meetings.” 851 F.3d at 528. Nonetheless, it is significant that the Fifth Circuit
upheld the school board’s policy in that case despite the fact that students from
elementary and middle schools participated in the invocations. Id. at 526–30 &
n.16.
25

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 33 of 37

make that determination by an objective measure. Judges would be certain to have
different views on how much student participation is constitutionally permissible,
which would lead to unpredictability and inconsistent application of the
Establishment Clause among similarly situated school boards.
Further undermining the feasibility of the Third and Sixth Circuits’ focus on
active student participation is the fact that most school boards are not similarly
situated in their level of student participation. In a 2009 survey conducted by the
National School Boards Association, for example, 14 of the 39 responding states
said that local school boards within the state did not have student representatives at
all, and 4 more states indicated that student representatives serve on only some of
the local school boards within the state. 11 Among those districts that have student
representatives, the level of student participation in a given board meeting will vary
district by district. 12 The sheer variety in the level of student participation in school
board meetings across the country would render impossible the consistent
application of the Establishment Clause to school boards.

11

See National School Boards Association, Students Serving on Local School
Boards 1–2 (Feb. 2009), available at https://www.nsba.org/sites/default/files/
reports/Students-on-school-boards.pdf (last visited May 2, 2017).

12

Id. at 3–4.
26

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 34 of 37

In addition, the level of student participation can vary greatly from meeting to
meeting. In 2015, for example, the student representative to the Chino Valley Board
was not present at half of the board’s regular meetings. See Chino Valley Unified
School District, Meetings Dates, Agendas, Minutes, and Videos, available at
http://chino.k12.ca.us/Page/17380 (last visited May 2, 2017). There is no legal
principle in the Supreme Court’s case law indicating that the constitutionality of an
invocation before a Chino Valley Board meeting should turn on whether an attending
student is a representative or merely an audience member, or whether the student
representative is present or absent at a given meeting. But that is exactly the kind of
unworkable, hair-splitting distinction that a focus on student participation would
demand.
More fundamentally, having the constitutionality of a legislative prayer turn
on the presence or absence of a student representative would force states and school
boards to choose between foreclosing educational opportunities for mature, civicminded students, or abandoning legislative prayer altogether. States and school
boards should not be forced to choose between closing their doors to student
representatives and relinquishing their right to solemnize board meetings with an
opening prayer. Student-representative positions provide high school students the
opportunity to learn firsthand how legislative bodies operate. The high school
students who serve as student representatives often volunteer for, or are elected to,

27

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 35 of 37

those positions. See, e.g., 2 ER 60; CAL. EDUC. CODE § 35012(d). Many of these
civic-minded students will be future school board members and legislators. They
need not—and should not—be necessarily excluded from the traditional legislative
practices of this country.
CONCLUSION
The Chino Valley Board of Education’s prayer policy is consistent with the
long and unbroken tradition of legislative prayer.

It does not offend the

Establishment Clause, and this Court should reverse and vacate the judgment of the
District Court enjoining the prayer policy.

Dated: May 3, 2017
Kristen K. Waggoner
Brett Harvey
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
Telephone: 480.444.0020
David A. Cortman
ALLIANCE DEFENDING FREEDOM
440 First Street NW, Suite 600
Washington, D.C. 20001
Telephone: 202.393.8690

Respectfully submitted,
/s/ Helgi C. Walker
Helgi C. Walker
Counsel of Record
Sean J. Cooksey
Kian J. Hudson
Nick Harper*
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
Telephone: 202.955.8500
Facsimile: 202.467.0539
Attorneys for Amicus Curiae
Alliance Defending Freedom
*Admitted only in Maryland; practicing under
the supervision of principals of the firm

28

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 36 of 37

CERTIFICATE OF SERVICE
I, Helgi C. Walker, a member of the Bar of this Court, hereby certify that on
May 3, 2017, I electronically filed the foregoing brief with the Clerk of Court for
the United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system. I certify that all participants in the case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF system.
/s/ Helgi C. Walker
HELGI C. WALKER

29

 Case: 16-55425, 05/03/2017, ID: 10419833, DktEntry: 23, Page 37 of 37

Form 8.

Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f),
16-55425
29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number

Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief.
I certify that (check appropriate option):
This brief complies with the length limits permitted by Ninth Circuit Rule 28-1.1.
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.
The brief is 6,43
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable, and is filed by (1)
separately represented parties; (2)
a party or parties filing a
single brief in response to multiple briefs; or (3)
a party or parties filing a single brief in response to a
longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.
32(a)(5) and (6).
This brief complies with the longer length limit authorized by court order dated
The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2
(a) and is
words or
pages, excluding the portions exempted by Fed. R. App. P. 32
(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2
(c)(2) or (3) and is
words or
pages, excluding the portions exempted by Fed. R.
App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and
(6).
This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or
s/
Unrepresented Litigant

elgi C.

al er

Date

ay 3, 2 1

("s/" plus typed name is acceptable for electronically-filed documents)
(Rev.12/1/16)