[00:00:09] Speaker 01:
We are back on record and ready for the final case on the oral argument calendar, Boquist versus Baumgart.

[00:00:15] Speaker 01:
I should say cases 23-35535 and 23-3696.

[00:00:29] Speaker 04:
Good morning, Your Honors.

[00:00:30] Speaker 04:
May it please the Court?

[00:00:31] Speaker 04:
Dustin Bueller representing defendant appellants in this matter.

[00:00:36] Speaker 04:
I plan to reserve five minutes for rebuttal, and I'll certainly watch the clock.

[00:00:41] Speaker 04:
This case presents an issue of great importance within our federal system.

[00:00:47] Speaker 04:
whether federal courts may adjudicate First Amendment claims arising out of a state legislature's internal efforts to investigate and regulate the conduct and behavior and speech of one of its members.

[00:01:02] Speaker 04:
In this case, the plaintiff, a member of the Oregon Senate, seeks to hold three of his Senate colleagues personally liable for their participation in a unanimous bipartisan committee vote

[00:01:17] Speaker 04:
a vote that imposed personal safety measures, interim safety measures, in the form of a 12-hour notice rule in order to facilitate further investigation into plaintiff's conduct and statements he made in the state capitol.

[00:01:33] Speaker 04:
Now, certainly, certainly legislators in our system have a right to speak freely.

[00:01:40] Speaker 04:
But that right has always been subject to the legislature's exclusive constitutional authority to regulate and discipline member conduct and speech.

[00:01:51] Speaker 03:
Was this discipline?

[00:01:53] Speaker 04:
This was on the road to potential discipline.

[00:01:56] Speaker 03:
Well, but I thought there was testimony that this wasn't discipline, that this was a safety measure.

[00:02:02] Speaker 03:
If this was discipline, then don't we get closer to the Bond case in terms of constitutional rights?

[00:02:10] Speaker 03:
If he was disciplined for his speech, then it seems to me it's a very different case than if they just instituted a safety measure.

[00:02:18] Speaker 03:
So I'm interested in your view about whether it was discipline.

[00:02:22] Speaker 04:
So this was an interim safety measure at the start of an investigation to facilitate further investigation.

[00:02:31] Speaker 04:
To your question, Judge Hurwitz, certainly this did not get to discipline later.

[00:02:37] Speaker 04:
Sometimes it doesn't.

[00:02:38] Speaker 04:
Sometimes it doesn't when the legislature embarks on this road.

[00:02:40] Speaker 01:
But I don't think the question is whether it resulted in discipline.

[00:02:43] Speaker 01:
I'm trying to figure out what is the nature of the action taken.

[00:02:47] Speaker 01:
So without using 2020 hindsight,

[00:02:51] Speaker 01:
At the outset, we know what the facts are.

[00:02:55] Speaker 01:
And so I really joined Judge Hurwitz in trying to get my arms around.

[00:02:58] Speaker 01:
Was that disciplinary?

[00:03:00] Speaker 01:
Or were they concerned about employees' concerns for their safety and acting out of that motivation?

[00:03:08] Speaker 04:
Yeah, so it was the latter.

[00:03:11] Speaker 04:
That's my reading of it, Your Honor.

[00:03:12] Speaker 01:
Not discipline.

[00:03:13] Speaker 04:
Well, so this particular action, no, was not a disciplinary action.

[00:03:18] Speaker 01:
The 12-hour rule.

[00:03:20] Speaker 04:
Correct.

[00:03:21] Speaker 04:
Correct.

[00:03:21] Speaker 03:
So if so, you argue for complete legislative immunity.

[00:03:27] Speaker 03:
But isn't this more akin to an administrative action then?

[00:03:31] Speaker 03:
The action that's being challenged, not where the process might end up.

[00:03:35] Speaker 03:
Had they expelled him at the end of the process, we'd be dealing with a legislative action.

[00:03:40] Speaker 03:
But isn't this more of an administrative action?

[00:03:43] Speaker 04:
No, Your Honor.

[00:03:44] Speaker 04:
No, it's not, because if you view it in an isolated way in that manner, instead of contextually, as part of the legislature, embarking on something that is within its power to potentially punish behavior, then you fall into the trap of looking at it in a way that's not appreciated in that context.

[00:04:02] Speaker 03:
So an analogous instance... Well, what if their final action had been this rule?

[00:04:08] Speaker 03:
In other words, they'd go into the whole process and say, okay, we're done.

[00:04:12] Speaker 03:
It's a 12-hour...

[00:04:14] Speaker 03:
rule.

[00:04:15] Speaker 03:
Is that discipline?

[00:04:17] Speaker 04:
You're saying if they stop after imposing the prophylactic measure, as it were?

[00:04:22] Speaker 03:
Yeah, this is enough.

[00:04:22] Speaker 03:
We don't need to go further.

[00:04:24] Speaker 04:
Yeah, so I think we're maybe tangling up two things that need to be kept separate here.

[00:04:30] Speaker 04:
So if you're asking me, is this interim safety measure disciplinary?

[00:04:37] Speaker 04:
Like, is it a discipline?

[00:04:39] Speaker 04:
The answer is no.

[00:04:40] Speaker 04:
That is not the nature of it.

[00:04:42] Speaker 04:
But what I'm saying, which I think is very important, and that other sister circuits have recognized as very important, such as in the Wrangel versus Boehner case, and in one of the Sixth Circuit cases cited in the brief, is that every step in a process that could lead to member discipline is entitled to absolute legislative immunity.

[00:05:04] Speaker 04:
That is what the other circuits unanimously, that's how they viewed this.

[00:05:09] Speaker 04:
So I think both things are true here.

[00:05:11] Speaker 01:
So then going back to what I asked you to tease apart a minute ago about the nature of this 12 hour rule.

[00:05:18] Speaker 01:
And you said it was a safety measure.

[00:05:20] Speaker 01:
You're now telling me I can't divorce that from the step one in a disciplinary procedure.

[00:05:26] Speaker 04:
Yeah.

[00:05:26] Speaker 04:
So I think the point.

[00:05:28] Speaker 01:
Yes.

[00:05:29] Speaker 01:
I'm sorry.

[00:05:29] Speaker 01:
Was that a yes?

[00:05:31] Speaker 04:
Well, I'm sorry.

[00:05:31] Speaker 04:
Ask the question again.

[00:05:33] Speaker 04:
My apologies.

[00:05:34] Speaker 01:
That's all right.

[00:05:35] Speaker 01:
I asked you a minute ago about trying to tease out the nature of that without 2020 hindsight, the nature of the

[00:05:40] Speaker 01:
12-hour rule, and I think you said it was a safety measure.

[00:05:44] Speaker 01:
Now I think you're telling me that I should also view it as step one in a disciplinary procedure.

[00:05:50] Speaker 01:
Is that what you're telling me?

[00:05:51] Speaker 04:
Correct.

[00:05:52] Speaker 01:
So it was both?

[00:05:53] Speaker 01:
It was both.

[00:05:54] Speaker 01:
The nature was both?

[00:05:55] Speaker 04:
Correct.

[00:05:56] Speaker 04:
And here's why.

[00:05:57] Speaker 04:
So when in a workplace or the Capitol building, when the legislature is investigating the conduct or speech of one of its own members, when it starts to go down that road, I mean, we don't know, you're right, with 2020 hindsight, we don't know exactly initially where that's going to go.

[00:06:16] Speaker 04:
But when the conduct committee for the Senate puts safety measures in place for purposes of facilitating further investigation,

[00:06:26] Speaker 04:
Look, that could lead nowhere as it did here or in the Hernandez case cited in the answering brief, also from Oregon.

[00:06:33] Speaker 04:
That could lead somewhere and there's no way to know initially which road we're on.

[00:06:37] Speaker 04:
The important thing though is that you need absolute immunity for committee votes as you embark down that path.

[00:06:42] Speaker 00:
Counsel, let me follow up on that point because your argument really suggests that there are no factual issues remaining.

[00:06:50] Speaker 00:
As I understand the position that you took in your brief, you're asking for reversal and a remand for dismissal.

[00:06:57] Speaker 00:
Why is it a dismissal rather than for the case to proceed to trial?

[00:07:04] Speaker 04:
Are you suggesting there are facts that are?

[00:07:07] Speaker 00:
There are many cases where there are sufficient factual disputes.

[00:07:12] Speaker 00:
The nature of the speech, for example, the nature of the conduct related to what you and Judge Christian was discussing, where we really can't figure it out because there are countervailing characterizations.

[00:07:27] Speaker 00:
The case proceeds the trial, and then after that, you would have an opportunity to move for

[00:07:34] Speaker 00:
absolute qualified immunity.

[00:07:36] Speaker 00:
So why isn't it that kind of a case where there are sufficient disputes on what happened, whether this was protected speech or not?

[00:07:45] Speaker 00:
I'm really kind of following up on a point that the previous panel said that as the case proceeds through discovery, there may be additional evidence that would shed light on the nature of the statements, whether it's really motivated by a legitimate safety concern or whether it's more retaliatory.

[00:08:02] Speaker 00:
Are there jury questions in there that need to be considered?

[00:08:05] Speaker 04:
No, and the Supreme Court has been very clear that this is an immunity from trial, also from suit, and needs to be figured out at the earliest point possible.

[00:08:16] Speaker 04:
And certainly, look, if there are further facts that this court would need, then it may have to remand for a determination on those facts.

[00:08:25] Speaker 04:
If there are further facts about this action by a legislative committee.

[00:08:30] Speaker 01:
So now you're saying with this action, you mean the 12-hour rule.

[00:08:33] Speaker 04:
Correct.

[00:08:33] Speaker 04:
Well, and let's be more precise.

[00:08:36] Speaker 04:
I believe what the First Amendment claims are rooted in, the specific action, is the committee vote, the roll call vote, the unanimous bipartisan committee vote to adopt the 12-hour rule.

[00:08:47] Speaker 04:
I believe that is the action, right?

[00:08:49] Speaker 04:
And so look, that looks pretty legislative to me.

[00:08:53] Speaker 04:
But if this court needs further facts as to what that is.

[00:08:56] Speaker 01:
Well, the district court, for example, to just follow up on Judge Wynn's question, I think he thought this was a political stunt.

[00:09:02] Speaker 01:
I think that is in the record somewhere.

[00:09:04] Speaker 01:
I think that was the sum up.

[00:09:08] Speaker 01:
But if we put ourselves in the shoes of the folks who are running the Capitol and in charge of making sure that there's orderly and safe workplace, then it seems to me that Judge Wynn has a point about, is there an issue of fact about whether there were legitimate safety concerns even raised?

[00:09:23] Speaker 04:
So that, but that goes to the First Amendment claims.

[00:09:26] Speaker 04:
That does not go to the immunity analysis.

[00:09:29] Speaker 04:
Tenny v. Brandhove, Tenny versus Brandhove.

[00:09:32] Speaker 01:
It does if we're trying to figure out, if we're trying to forgive me for interrupting, but that's why I keep trying to parse out what's the nature of that action.

[00:09:39] Speaker 01:
Was it disciplinary?

[00:09:40] Speaker 01:
At first you said yes, and now you said, well, it was also, first you said it was a safety measure, and then you said, no, it's also a disciplinary measure.

[00:09:49] Speaker 04:
It is the first step in a disciplinary action.

[00:09:53] Speaker 04:
The action itself, that first step, is not the end point of discipline.

[00:09:58] Speaker 04:
That's the point I'm making now.

[00:09:59] Speaker 00:
Let me try again because I'm not sure that I fully understand your position on why there aren't sufficient disputed factual questions that will warrant a trial and then the determination after trial as to whether qualified immunity applies versus a straight reversal and dismissal.

[00:10:17] Speaker 00:
So the district court characterized this as

[00:10:21] Speaker 00:
political speech, it's political hyperbole, and so therefore the action is really retaliatory.

[00:10:29] Speaker 00:
In trying to figure out whether this is an interim measure that's legitimately motivated by safety concerns,

[00:10:37] Speaker 00:
or whether, as you characterize it as a legislative action, or whether it's one step on the road to core legislative action, or whether it's retaliatory, are there factual questions in there that the jury needs to sort out first?

[00:10:52] Speaker 00:
And your answer is no, and tell me why not.

[00:10:55] Speaker 00:
Even if there's conflicting reactions, right?

[00:10:58] Speaker 00:
Some people thought, okay, well, maybe there's a safety issue here.

[00:11:01] Speaker 00:
Other people are like, well,

[00:11:03] Speaker 00:
really political hyperbole so do we do we resolve those questions in your favor at this point or those story questions no so so the Supreme Court has been crystal clear on this point that we do not

[00:11:18] Speaker 04:
consider motives.

[00:11:20] Speaker 04:
We do not consider whether they're vindictive or political.

[00:11:22] Speaker 04:
So Judge Winn, you're citing evidence in the record, and certainly that evidence is there.

[00:11:27] Speaker 04:
There's a disputed question as to the merits of the First Amendment claim, but that dispute is not relevant for the immunity analysis.

[00:11:34] Speaker 03:
Can I refocus you a little bit on this?

[00:11:38] Speaker 03:
Let's assume for a moment that we don't think absolute immunity obtains.

[00:11:45] Speaker 03:
Let's assume, I don't think anybody disputes that under 1983, given that they're suing state officials, we have to do a qualified immunity analysis, at least with respect to monetary claims.

[00:11:57] Speaker 04:
Yes.

[00:11:58] Speaker 03:
So would you address the qualified immunity issue?

[00:12:01] Speaker 04:
Certainly.

[00:12:01] Speaker 03:
Tell me why you think you prevail under.

[00:12:04] Speaker 03:
qualified immunity, which I think we always do at summary judgment.

[00:12:09] Speaker 03:
We do the analysis the court tells us.

[00:12:13] Speaker 03:
We can assume a constitutional right was violated, but now the question is, is there some sort of clearly established law

[00:12:20] Speaker 03:
Would you address that for us?

[00:12:21] Speaker 04:
Certainly, Judge Hurwitz.

[00:12:23] Speaker 04:
And I will preface it by saying, look, this might be the easier road for this court.

[00:12:27] Speaker 04:
On the nominal damages claim, there was not clearly established law at the time that applied to these particular facts.

[00:12:35] Speaker 04:
And let me tease that out, if you'll bear with me.

[00:12:38] Speaker 04:
So the law was unsettled because at the time, we didn't have the benefit of this court's opinion in Boquist.

[00:12:43] Speaker 04:
We didn't have that.

[00:12:45] Speaker 04:
So we didn't know that the pickering standard, the more forgiving standard for employee speech didn't apply.

[00:12:52] Speaker 04:
We didn't know whether this particular kind of sui generis 12-hour notice rule was a material adverse action.

[00:12:59] Speaker 04:
I think it's pretty clear reading the district court's qualified immunity analysis that there was not a clearly established right.

[00:13:05] Speaker 04:
And indeed, what I'd actually point out as the most persuasive evidence that not every reasonable official would have concluded that this was a violation is that the district court itself initially thought that this did not state a claim for relief.

[00:13:21] Speaker 04:
So certainly reasonable minds could disagree at the time of the action in this case as to whether this was a violation or not.

[00:13:27] Speaker 03:
Well, if you're right on that,

[00:13:30] Speaker 03:
Would you turn to the non damages claims and tell us how we deal with those?

[00:13:35] Speaker 03:
Yeah, certainly.

[00:13:36] Speaker 03:
You contend that they're moot.

[00:13:38] Speaker 04:
That's correct.

[00:13:39] Speaker 04:
And look, to be clear, just to state this clearly, qualified immunity does not apply to the declaratory judgment part of the judgment below.

[00:13:46] Speaker 04:
And so I think if this court were to go the qualified immunity route, mootness is the other angle, right?

[00:13:54] Speaker 04:
And here, the reason why this case is moot at this point, there's several reasons, really.

[00:14:00] Speaker 04:
Number one, the active investigation on this conduct

[00:14:05] Speaker 04:
ceased at the end of 2019.

[00:14:07] Speaker 04:
It has been almost five years since anybody has done anything on this.

[00:14:11] Speaker 04:
Also, rule 27 in the legislature, the legislative branch personnel rule 27 makes crystal clear that there's a five-year limitation on any action on specific occurrences of conduct.

[00:14:23] Speaker 04:
That passed in June of this year.

[00:14:25] Speaker 04:
So on the declaratory judgment piece of this- This member is no longer serving.

[00:14:29] Speaker 04:
Oh, no, he is.

[00:14:31] Speaker 04:
But he's serving until January.

[00:14:32] Speaker 04:
So he's constitutionally barred from serving beyond his current term.

[00:14:37] Speaker 01:
Oh, but his current term hasn't expired yet.

[00:14:39] Speaker 04:
That's correct, Your Honor.

[00:14:40] Speaker 03:
That's correct.

[00:14:41] Speaker 03:
Is it inconceivable that he'll, I don't want to use this term in a negative way, but it's the shortest way to do it, mouth off again in this way, that that might lead to further discipline?

[00:14:52] Speaker 04:
But that would be an entirely different incident, right?

[00:14:55] Speaker 04:
If we're looking at the declaratory relief afforded by the district judge, the district court.

[00:14:58] Speaker 03:
Well, but the question is whether or not the incident is capable of repetition.

[00:15:03] Speaker 03:
And you didn't undo the rule until after this case was brought.

[00:15:09] Speaker 03:
So those things sort of cut against finding it moot.

[00:15:14] Speaker 01:
Well, if we just play that out and somebody, any member,

[00:15:18] Speaker 01:
on the floor made another statement that was perceived by others, just hypothetically, to be threatening, right?

[00:15:25] Speaker 01:
Wouldn't another process have to start all over again?

[00:15:28] Speaker 01:
Yes.

[00:15:29] Speaker 01:
Another four-person committee like the one that bipartisan that met here and to decide whether to institute something like the 12-hour rule or something else or?

[00:15:36] Speaker 03:
Correct.

[00:15:37] Speaker 03:
And somebody could come to court and attack that if it started to happen.

[00:15:40] Speaker 04:
That's correct.

[00:15:41] Speaker 04:
And the specific relief, declaratory relief, was rooted in these specific statements and the specific reaction by the committee almost five years ago violating plaintiff's rights.

[00:15:52] Speaker 01:
That 12-hour rule was a compromise made up in committee, right?

[00:15:56] Speaker 01:
Correct.

[00:15:57] Speaker 01:
We don't have any reason to think that another committee of a similar circumstance were to arise would think a 12-hour warning notice rule would be the correct one.

[00:16:06] Speaker 04:
That is entirely right.

[00:16:06] Speaker 01:
No, that really is a question.

[00:16:10] Speaker 04:
precedent for doing that.

[00:16:28] Speaker 04:
from the ambit of qualified immunity and whether this could happen again, it was so in the moment, particularized to that conduct and that situation, it really is hard for me to imagine it could.

[00:16:42] Speaker 04:
And let me just make an additional point, and I see I'm eating into my rebuttal time, and I apologize for that, but I guess I'm apologizing to myself.

[00:16:49] Speaker 04:
But look, I think everybody has moved on in the Capitol.

[00:16:53] Speaker 03:
They've moved on.

[00:16:55] Speaker 03:
Everybody hasn't moved on because the plaintiff is still pursuing his case.

[00:17:00] Speaker 03:
Correct.

[00:17:00] Speaker 01:
And we're along for the ride, too, I suppose.

[00:17:02] Speaker 01:
I don't think this is your strongest argument, because we would take very seriously a situation where an elected member of a body were silenced if we thought they were.

[00:17:10] Speaker 01:
And that's all hypothetical, but I'm just saying that premise is something we would take very, very seriously, as you know.

[00:17:15] Speaker 01:
That makes sense.

[00:17:15] Speaker 01:
But you just said something that confused me a little bit, because we were talking about mootness.

[00:17:19] Speaker 01:
So we had the nominal damage claim and then the equitable relief claim.

[00:17:24] Speaker 01:
And when we talked about equitable relief, we're talking about moodness.

[00:17:27] Speaker 01:
And we went through whether there was any reason to think that this was capable of repetition yet evading review.

[00:17:33] Speaker 01:
And I think you harken back to qualified immunity.

[00:17:35] Speaker 04:
Oh, yeah.

[00:17:36] Speaker 04:
My apologies.

[00:17:37] Speaker 04:
Yeah.

[00:17:37] Speaker 01:
We've got to keep those.

[00:17:38] Speaker 01:
Yeah.

[00:17:38] Speaker 04:
Let's keep them separate.

[00:17:40] Speaker 04:
And the point is a point about mootness.

[00:17:42] Speaker 04:
And the point is just that at this point, given the statute of limitations running, given that this was specific to this conduct and this rule that kind of generated on the fly, I just can't frankly envision the circumstances that this would happen.

[00:17:55] Speaker 01:
So my takeaway is that on the damages claim, you think the qualified immunity is why your team wins, and on the equitable relief, you think the claim's moot.

[00:18:05] Speaker 04:
Correct.

[00:18:05] Speaker 04:
Look, our team would love to win on legislative immunity, but that is an alternative way to reverse in both the summary judgment and also the fee award.

[00:18:14] Speaker 01:
Where would that leave you on fees?

[00:18:16] Speaker 04:
So I think as long as you're doing a merits-based reversal on the nominal damage part of the judgment below, that would be sufficient to then switch over the prevailing party status.

[00:18:27] Speaker 01:
Do you have any authority for that?

[00:18:28] Speaker 01:
Because there would be an adjudication in Mr. Boquist's favor on the equitable claim, and then really just a declaration that the matter is moot.

[00:18:38] Speaker 01:
Do you have any authority for the notion that that wouldn't leave him as prevailing party?

[00:18:42] Speaker 04:
Well, so not offhand, but here's how I get there logically.

[00:18:46] Speaker 04:
So if the declaratory part of the judgment is moot, if that's what the court concludes, I believe the proper disposition is vacatur.

[00:18:55] Speaker 04:
You vacate the judgment below as it pertains to the equitable relief.

[00:18:58] Speaker 04:
But because mootness does not apply to the nominal damages award,

[00:19:02] Speaker 04:
I think if there's qualified immunity or any immunity, that's a reversal.

[00:19:08] Speaker 04:
That's not just vacatur.

[00:19:09] Speaker 04:
That's a reversal.

[00:19:10] Speaker 04:
And as a result, I think that that's essentially saying, sorry, the district court erred by determining the violation of rights.

[00:19:20] Speaker 04:
And I think that is sufficient enough under 1988 to reverse.

[00:19:22] Speaker 04:
Thank you.

[00:19:22] Speaker 04:
Do you have any other questions?

[00:19:25] Speaker 03:
No.

[00:19:25] Speaker 03:
Just one quick one.

[00:19:26] Speaker 03:
Go right ahead.

[00:19:27] Speaker 03:
When did the mootness occur?

[00:19:29] Speaker 03:
But when did the mootness occur?

[00:19:30] Speaker 03:
In your view.

[00:19:31] Speaker 03:
Well, it certainly wasn't moot when brought, so tell me.

[00:19:33] Speaker 03:
Correct.

[00:19:34] Speaker 03:
Was it after, before the district court's ruling that's now on appeal to us?

[00:19:41] Speaker 04:
So I believe the mootness occurred when the statute of limitations ran in June.

[00:19:46] Speaker 04:
That's after.

[00:19:47] Speaker 04:
That's nearly a year after the district court.

[00:19:49] Speaker 01:
End of 2024.

[00:19:50] Speaker 04:
Correct, because that's.

[00:19:51] Speaker 03:
So we can't say that the district court erred in not finding it moot.

[00:19:56] Speaker 01:
Wasn't moot then.

[00:19:58] Speaker 04:
I suppose that's right.

[00:19:59] Speaker 04:
There's a lot.

[00:20:00] Speaker 04:
I'm trying to untangle it in my mind on the fly.

[00:20:02] Speaker 03:
So should we send it back to the district court to determine whether it's now moot, or should we make a finding of moot?

[00:20:08] Speaker 04:
I mean, I think my reading of Brock v. Newsom and this court's case law on mootness is you can look at the situation before you and make that determination now.

[00:20:19] Speaker 01:
Thank you, counsel.

[00:20:19] Speaker 04:
Yeah.

[00:20:20] Speaker 04:
Thank you.

[00:20:20] Speaker 01:
When you come back, you can plan.

[00:20:22] Speaker 01:
We'll put two minutes on the clock.

[00:20:23] Speaker 01:
OK.

[00:20:23] Speaker 01:
Thank you.

[00:20:37] Speaker 02:
Good morning.

[00:20:38] Speaker 02:
My name is Vance Day.

[00:20:39] Speaker 02:
I represent the plaintiff, Senator Boquist.

[00:20:42] Speaker 02:
He and his wife are here.

[00:20:43] Speaker 02:
And Beth Jones on this case as well.

[00:20:45] Speaker 02:
May I first start with the mootness, kind of the rear end of the cowl?

[00:20:50] Speaker 01:
Wherever you want to start, it's fine.

[00:20:51] Speaker 02:
Appreciate that.

[00:20:54] Speaker 02:
This case is not moot.

[00:20:56] Speaker 02:
There is still, and the interesting thing about this, there is a five year statute of limitations in house concurrent resolution 28.

[00:21:05] Speaker 02:
But the interesting thing about that is that there's also a facial review period that has no dates on it.

[00:21:12] Speaker 03:
So if you look at.

[00:21:14] Speaker 03:
Is there any significant real world chance that your client could be, let's call it discipline,

[00:21:22] Speaker 03:
one of a better term, could be disciplined again for the conduct that you engaged in in 2019?

[00:21:30] Speaker 02:
Yes.

[00:21:30] Speaker 03:
There really is?

[00:21:31] Speaker 02:
Yeah, there really is.

[00:21:32] Speaker 02:
If you live in Salem and you see the fractious nature, think about measure 113.

[00:21:37] Speaker 02:
We were just here a few months ago.

[00:21:39] Speaker 01:
Wait a minute.

[00:21:39] Speaker 01:
After this rule was put in place, my understanding is it just sort of petered out.

[00:21:42] Speaker 01:
Nobody even followed up and filed a complaint.

[00:21:44] Speaker 02:
Well, that was part of the discipline punishment element, which I'll get to in a minute.

[00:21:49] Speaker 02:
But Senator Pruszanski, the defendant, is still the chair of this committee.

[00:21:55] Speaker 02:
unless that happened just recently, but he was the one who crafted the Rule 27 under which he thought he had authority.

[00:22:03] Speaker 03:
The rule is no longer there, right?

[00:22:05] Speaker 02:
Well, Rule 27 has changed four times.

[00:22:07] Speaker 03:
Yes.

[00:22:07] Speaker 03:
And so how's... So the rule that was in effect at the time that your client, I'll use disciplined without prejudice, was disciplined, is gone.

[00:22:17] Speaker 03:
Yes.

[00:22:18] Speaker 03:
The discipline that was imposed has been removed.

[00:22:23] Speaker 03:
And the statute of limitations has run on the, and you're not alleging that he intends to do it again.

[00:22:31] Speaker 03:
So I'm trying to figure out.

[00:22:34] Speaker 03:
I would allege, if I may.

[00:22:36] Speaker 02:
I'm trying to figure out why we're really here.

[00:22:37] Speaker 02:
I would allege that Senator Boquist has a keen interest in his First Amendment rights, and he makes use of that all the time.

[00:22:44] Speaker 03:
Oh, sure.

[00:22:44] Speaker 03:
But you're not alleging that he intends to make the statement that led to

[00:22:50] Speaker 03:
whatever happened in 2019 again.

[00:22:52] Speaker 02:
Probably not make that statement, although I wouldn't pass him for him to put it on a t-shirt.

[00:22:58] Speaker 02:
The point is that he does speak out a lot.

[00:23:01] Speaker 01:
And he is.

[00:23:01] Speaker 01:
And we protect the First Amendment, no question.

[00:23:06] Speaker 01:
But could you assume that violation and go on to the qualified immunity analysis?

[00:23:11] Speaker 01:
What's the clearly established law?

[00:23:14] Speaker 02:
Yes.

[00:23:16] Speaker 02:
Under the qualified immunity, the interesting thing is that

[00:23:19] Speaker 02:
You know, defendants argue that it's not particularly established under the law, that it's not clearly established.

[00:23:27] Speaker 02:
But even the district court, looking at what was the qualified immunity, didn't even look at Boquist 1, meaning the original case that came out.

[00:23:36] Speaker 02:
Well, of course not.

[00:23:37] Speaker 03:
You don't want a judge to say, I got it wrong the first time, so therefore it couldn't have been.

[00:23:41] Speaker 03:
Although he did say that in the transcript.

[00:23:43] Speaker 03:
Yeah, but to me, that's an argument with some substance.

[00:23:47] Speaker 03:
Good judge.

[00:23:50] Speaker 03:
You think he's a great judge the second time through.

[00:23:52] Speaker 03:
He didn't think there was clearly established law.

[00:23:55] Speaker 03:
If he didn't think it, why should the defendants have thought it?

[00:23:59] Speaker 02:
I can't remember the exact term Judge Hurwitz that he used.

[00:24:03] Speaker 02:
He said something about it goes without question that this type of retaliation is not permitted.

[00:24:11] Speaker 02:
And that's my transliteration.

[00:24:12] Speaker 00:
Let me ask you this, counsel.

[00:24:14] Speaker 00:
On the qualified immunity question,

[00:24:17] Speaker 00:
sometimes the facts really have to be resolved until we can figure out what the clearly established law really is, right?

[00:24:25] Speaker 00:
I'm not sure that this is that type of a case, and so I just don't see a case that is

[00:24:32] Speaker 00:
close enough, we don't require it to be exactly on all fours, but the Supreme Court has cautioned us not to define the clearly established law at too high a level of generality.

[00:24:45] Speaker 00:
So can you talk about the factual disputes in this case and whether it matters for purposes of figuring out the clearly established law question?

[00:24:53] Speaker 02:
I would.

[00:24:54] Speaker 02:
Two things.

[00:24:56] Speaker 02:
One, it's interesting, and the defendants can't argue against this really, and that is that the committee at the time on July 8, 2019, did not have authority to act at all.

[00:25:08] Speaker 02:
They were ultra-virus.

[00:25:10] Speaker 02:
They literally took into the committee without a basis to make their determination.

[00:25:18] Speaker 02:
They didn't have any authority to put in interim safety measures, number one.

[00:25:23] Speaker 02:
They didn't have authority to even constitute that committee.

[00:25:26] Speaker 02:
If you notice, in the record, it says the Senate Special Committee.

[00:25:31] Speaker 02:
That's under the first HCR, which ended on June 29.

[00:25:35] Speaker 00:
And the significance of those facts are what?

[00:25:37] Speaker 00:
That if the jury finds that they're acting ultra-virus, then it's closer to retaliatory finding?

[00:25:44] Speaker 02:
It provides a wide swath of firm foundation for retaliation.

[00:25:49] Speaker 02:
Why?

[00:25:50] Speaker 02:
Because Senator Perzanski helped draft HCR 20, the one that was in place on July 8.

[00:25:58] Speaker 02:
That's the interesting thing about this case.

[00:26:00] Speaker 03:
Even if you're right, why does that entitle you to summary judgment?

[00:26:04] Speaker 03:
As Judge Winn suggests, there are facts in the record that would suggest retaliation, but there's also facts in the record that would suggest that the people on the committee viewed it as a safety measure.

[00:26:17] Speaker 03:
You don't get summary judgment under those circumstances, do you?

[00:26:21] Speaker 02:
I think we get summary judgment because Judge McShane wrote an awesome opinion.

[00:26:25] Speaker 03:
I thought he wrote an awesome one the first time when we reversed him.

[00:26:28] Speaker 02:
But it's based on the facts, though.

[00:26:30] Speaker 00:
Well, my question is whether he resolved the facts in your favor instead of the other way, or saying that there are sufficient disputed facts such that the jury must resolve it.

[00:26:41] Speaker 00:
He made a finding of retaliation, so he construed the facts in your favor, didn't he?

[00:26:47] Speaker 02:
I think he took it more looking at the actual specific statements of defendants, how the police were never asked to come and support the interim safety measure, how they'd never sent instructions to the secretary of the Senate, how Senator Perzanski sent an email out to everybody saying basically right the day after, good job, we sent a message inside the Capitol and outside the Capitol, which was the discipline.

[00:27:15] Speaker 02:
You don't do this in the Oregon Senate.

[00:27:18] Speaker 01:
Another message is that we're going to insist upon a safe workplace.

[00:27:21] Speaker 01:
So obviously, we weren't there, and we're not finders of fact anyway.

[00:27:25] Speaker 01:
But if you can just close the loop on Judge Nguyen's question.

[00:27:29] Speaker 02:
Sure.

[00:27:29] Speaker 02:
We have to take the defendant's actual statement during the July 8th committee hearing.

[00:27:35] Speaker 02:
Senator Brzezinski says, I do not believe he poses a current threat.

[00:27:40] Speaker 01:
The other thing that's happening in that committee meeting, and we've read this record, is that there were people complaining, employees apparently complaining that they felt threatened.

[00:27:51] Speaker 02:
We heard that from the investigator.

[00:27:54] Speaker 02:
There was never any complaint filed.

[00:27:56] Speaker 02:
There was no investigation prior.

[00:27:58] Speaker 00:
Right, but that gets back to my question about whether the disputed facts, the extent that the facts conflict, whether it really matters for purposes of clearly established law.

[00:28:09] Speaker 00:
On a record where there were expressions by some people, not by everybody, expressions by some people of safety concerns, what is the clearly established law that you're relying on?

[00:28:21] Speaker 02:
So the clearly established law, I would point to two different things.

[00:28:24] Speaker 02:
Blair, I'd also point to Watts with regard to how this statement was made and how it was dealt with.

[00:28:30] Speaker 02:
It was a future event.

[00:28:33] Speaker 02:
So Senator Boakwiston saying to the sub, three months before he made the statement, said to the superintendent of police, hey, send bachelors.

[00:28:42] Speaker 02:
Tell them to come heavily armed because I'm not going to be a political prisoner in my state.

[00:28:46] Speaker 02:
It's just that simple.

[00:28:47] Speaker 02:
That's a future event.

[00:28:49] Speaker 03:
Well, but again, I'm trying

[00:28:51] Speaker 03:
And we're sensitive to this because, interestingly enough, when we find that police officers are not entitled to qualified immunity, the Supreme Court often says to us, oh, no, you're generalizing.

[00:29:03] Speaker 03:
We need a case with facts pretty close to these facts before we'll deprive a public official of qualified immunity.

[00:29:11] Speaker 03:
So let's assume there was a constitutional violation, which is mostly what you've been arguing so far.

[00:29:16] Speaker 03:
But we still have to find a case that would say to the legislators, with facts close enough to this one, that this was a constitutional violation.

[00:29:26] Speaker 03:
And I'm just not sure I see any case that you cite that's close.

[00:29:30] Speaker 03:
I mean, Bond, the person was expelled from the legislature.

[00:29:34] Speaker 01:
And you just answered Judge Wynn's question by saying you don't think it matters whether there was a legitimate safety concern or not, and you were mentioning, but we interrupted you.

[00:29:43] Speaker 01:
I'm not sure which one of us, maybe me.

[00:29:46] Speaker 01:
So I apologize, but you were saying this was a futuristic sort of threat or statement.

[00:29:51] Speaker 01:
Why does that matter for purposes of this qualified immunity analysis?

[00:29:53] Speaker 02:
Because what stands for the proposition that you can say something that people could take as a threat, but if it was a condition precedent, meaning it was into the future that LBJ would be standing in front of him and he'd have a rifle, the chance of that happening is so minute you can't retaliate against that person speaking because it's freedom of speech.

[00:30:13] Speaker 01:
But this is a different scenario.

[00:30:14] Speaker 01:
Going back to Judge Wynne's initial question, well, Judge Hurwitz is trying to follow up on that.

[00:30:18] Speaker 01:
We really need a case that's pretty darn

[00:30:21] Speaker 01:
on point.

[00:30:22] Speaker 01:
And what's the best you've got?

[00:30:24] Speaker 02:
I think Blair and his progeny as it moves forward helps.

[00:30:29] Speaker 00:
This case is maybe too high of a level of generality, as the Supreme Court would say.

[00:30:35] Speaker 00:
I just don't see a case where there are actual expressions of safety concerns by staffers and other people.

[00:30:43] Speaker 02:
But if we pull it out from the safety concerns a little bit, and I realize that the defense wants to focus on that, because that was what was the etiology.

[00:30:51] Speaker 01:
And it's a disputed fact.

[00:30:52] Speaker 01:
So at this point, we'd have to assume that there were legitimate safety concerns, unless you can tell me what I'm missing.

[00:30:58] Speaker 02:
Well, in the record, it's clear that the committee members said there were no legitimate safety concerns.

[00:31:04] Speaker 01:
I said that a minute ago, and I responded the way I responded now, the way I responded then, which is that what's going on there

[00:31:10] Speaker 01:
is there's a concern about, I think there's definitely a concern about making sure there's a safe.

[00:31:17] Speaker 01:
From people.

[00:31:17] Speaker 01:
Yeah.

[00:31:18] Speaker 02:
Yes, definitely.

[00:31:20] Speaker 02:
From people.

[00:31:20] Speaker 02:
But let me, and I don't remember that.

[00:31:22] Speaker 01:
That's the problem.

[00:31:22] Speaker 01:
It was people.

[00:31:23] Speaker 01:
There's employees working there, and they're concerned about, what are we missing there?

[00:31:26] Speaker 01:
Why isn't that a dispute that would need to be resolved to go the route you're wanting us to go?

[00:31:31] Speaker 02:
I understand your question, I think.

[00:31:33] Speaker 01:
OK.

[00:31:33] Speaker 02:
Let me answer it this way.

[00:31:35] Speaker 02:
The target, if you want to use the term target, of Senator Boquist spoke to Senator Courtney, number one.

[00:31:42] Speaker 02:
Number two, the second statement was toward the state police.

[00:31:46] Speaker 01:
Well, now you're telling me that the people who expressed concern were irrational, and they shouldn't have been frightened.

[00:31:52] Speaker 02:
Well, I wouldn't necessarily say that, but they weren't in the zone.

[00:31:55] Speaker 02:
And I can't remember the name.

[00:31:56] Speaker 01:
They weren't targets.

[00:31:57] Speaker 01:
He didn't target any of them.

[00:31:58] Speaker 01:
By his words, I certainly would grant you that.

[00:32:00] Speaker 01:
But I'm still looking for the case on point.

[00:32:03] Speaker 02:
I'm having a moment of cerebral flatulence, so forgive me.

[00:32:07] Speaker 02:
I can't remember the case.

[00:32:08] Speaker 02:
But it's the case cross-burning, where the people across the street said they were terrified.

[00:32:14] Speaker 02:
But the court said, no, you actually weren't within the zone, or you weren't targeted.

[00:32:18] Speaker 03:
See, but you're now talking about, and this is why we're having some difficulty.

[00:32:22] Speaker 03:
I'm assuming for a moment that your client's constitutional rights were violated for purposes of this question.

[00:32:29] Speaker 03:
It may or may not be the right conclusion.

[00:32:32] Speaker 01:
That's prong one.

[00:32:33] Speaker 03:
I'm assuming that.

[00:32:33] Speaker 03:
So you don't have to explain to me again why their conclusion was irrational and they shouldn't have done it.

[00:32:40] Speaker 03:
I'm still trying to find the case.

[00:32:43] Speaker 03:
I think qualified immunity, by the way, is a very difficult way to analyze cases, but the Supreme Court tells us we have to.

[00:32:50] Speaker 03:
Watts is a case in which somebody was prosecuted and somebody said it's not a true threat and therefore you can't prosecute them.

[00:32:57] Speaker 03:
But I'm trying to find a case that says that a legislative body or something like it can't take what it thinks is a safety measure in response to what may be protected speech.

[00:33:09] Speaker 02:
Yes, and I don't think there's any case that we could find that had those direct facts.

[00:33:14] Speaker 03:
Or some analogous to it, something analogous to it.

[00:33:17] Speaker 02:
Yes, I do think, well, and how far do we go in the analogous?

[00:33:22] Speaker 03:
Yeah, I know that's part of the problem, but give me your, let's assume that I don't think Watts particularly helps you bond in Floyd as a complete disqualification.

[00:33:33] Speaker 03:
of somebody from the legislature, what other case should I be looking at?

[00:33:37] Speaker 02:
You're torturing me, Judge Hurwitz.

[00:33:40] Speaker 02:
I'm torturing myself because I'm trying to find a case.

[00:33:42] Speaker 01:
You've been tortured by the qualified immunity analysis.

[00:33:43] Speaker 01:
I realize that.

[00:33:44] Speaker 02:
And I'm not sure I can give you any more specific than that.

[00:33:47] Speaker 02:
OK.

[00:33:47] Speaker 03:
And that may be the problem with qualified immunity, but it's what they ask us to look for.

[00:33:53] Speaker 01:
What about equitable relief?

[00:33:54] Speaker 01:
You think this is not moot?

[00:33:57] Speaker 01:
I don't think it's moot.

[00:33:57] Speaker 01:
And your best argument for that is?

[00:33:59] Speaker 02:
HCR 28, which is the current version, says five-year statute of limitations.

[00:34:05] Speaker 02:
So somebody, all they have to do is file a complaint on the 18th of June this year.

[00:34:11] Speaker 02:
And that complaint can sit there under facial review under Section 14C, I believe it is, of that rule for an indeterminate standpoint.

[00:34:21] Speaker 02:
It's like... Even when it's barred by the limitations?

[00:34:24] Speaker 02:
It's not barred because it was filed before the five years.

[00:34:28] Speaker 02:
It's like a...

[00:34:29] Speaker 02:
So the five years expires on what day?

[00:34:32] Speaker 02:
June 19th.

[00:34:34] Speaker 03:
So if I filed a complaint on June 19th of next year?

[00:34:37] Speaker 03:
This year.

[00:34:39] Speaker 03:
Well, it's August.

[00:34:41] Speaker 03:
I know.

[00:34:42] Speaker 03:
Was a complaint filed?

[00:34:44] Speaker 02:
We wouldn't know that because the rule doesn't tell you, or doesn't, let me put it this way.

[00:34:49] Speaker 01:
Nothing in the record that says a complaint was filed.

[00:34:51] Speaker 01:
And you're saying you wouldn't know because what?

[00:34:53] Speaker 02:
Because one, the rule does not require notice to the respondent that it was filed.

[00:34:59] Speaker 02:
Then there's a facial review period where the LEO, the legislative equity officer, reviews whether it has enough grounds to be filed.

[00:35:10] Speaker 02:
And if he or she decides that, then they send it to an investigator.

[00:35:14] Speaker 02:
At that point.

[00:35:15] Speaker 03:
But I'm still not clear.

[00:35:16] Speaker 03:
Why wouldn't the statute of limitations, if it wasn't filed,

[00:35:21] Speaker 03:
There's no complaint that was filed by June 19th.

[00:35:24] Speaker 03:
So you're asking what you're saying.

[00:35:26] Speaker 03:
It says not moot because there might have been a complaint filed, and we'll never know.

[00:35:31] Speaker 02:
And we wouldn't know at this point.

[00:35:33] Speaker 02:
Number two, this is a case of intense public interest.

[00:35:38] Speaker 02:
It makes a difference in the legislature, and it's one of those cases that can evade judicial review because it gets mooted and sent out.

[00:35:45] Speaker 02:
That's why I think they decided after three and a half years of punishing him publicly

[00:35:50] Speaker 02:
Because it was a public shaming.

[00:35:53] Speaker 02:
You can't do this and say this in this legislature, because look what happened to Boquist.

[00:35:59] Speaker 02:
It'll happen to you.

[00:36:01] Speaker 02:
And the public were upset about it.

[00:36:03] Speaker 02:
So this is one of those cases that does need to set underneath that it's not moot for the equitable remedies.

[00:36:11] Speaker 02:
Did I answer that question, Your Honor?

[00:36:12] Speaker 02:
Yes, you did.

[00:36:15] Speaker ?:
OK.

[00:36:15] Speaker 02:
Oh, good.

[00:36:16] Speaker 01:
You have some time.

[00:36:18] Speaker 01:
Go ahead.

[00:36:19] Speaker 02:
I thought I saw red, so I was concerned about that.

[00:36:22] Speaker 01:
Not on our equipment.

[00:36:23] Speaker 01:
Maybe you have your own, but no.

[00:36:26] Speaker 02:
If I may, going back to the capacity to act without the authority to act.

[00:36:34] Speaker 02:
Again, we have four different HCRs.

[00:36:37] Speaker 02:
The BOQUIST statement was made under the original HCR 11, which was January 14, 2019.

[00:36:43] Speaker 02:
It was passed.

[00:36:45] Speaker 02:
They made it on June 19th.

[00:36:48] Speaker 02:
On June 25th, that special investigator sent out her report.

[00:36:52] Speaker 02:
Nobody asked her to make that report.

[00:36:54] Speaker 02:
I won't go through all these facts, but listen to this.

[00:36:57] Speaker 02:
Then on the 29th, HCR 20 was passed, which expanded.

[00:37:02] Speaker 02:
And then it became a big human relations rule to take

[00:37:08] Speaker 02:
all the employees, the legislators, even the public, it swept into its orbit.

[00:37:14] Speaker 02:
This is more of an HR function than it is a legislative function.

[00:37:18] Speaker 03:
Yeah, but now it seems to me, and I didn't understand this was the argument in your brief, now you're treading much closer to legislative immunity, because what you're saying is that the establishment of the committee

[00:37:29] Speaker 03:
violated the legislature's own rules.

[00:37:31] Speaker 03:
And it's sort of like sausage.

[00:37:33] Speaker 03:
We don't want to know how the sausage was made.

[00:37:36] Speaker 03:
They're entitled to make the sausage, and we decide at the end whether it's constitutional or not.

[00:37:41] Speaker 03:
Aren't these all questions of sort of Oregon state law that aren't posed by your complaint?

[00:37:46] Speaker 02:
No, it's a question of is the law the law?

[00:37:48] Speaker 02:
Are we Lex Rex or Rex Lex?

[00:37:52] Speaker 02:
Is the legislature under the law or are they over the law?

[00:37:55] Speaker 03:
Here's what I mean.

[00:37:56] Speaker 03:
But certainly, Oregon could entitle the legislature to operate this way.

[00:38:00] Speaker 03:
What you're saying is it's not the way they entitled the legislature to operate.

[00:38:05] Speaker 03:
I'm having a hard time seeing that raising a constitutional claim.

[00:38:09] Speaker 02:
OK.

[00:38:11] Speaker 02:
If the legislator committee acted ultra-virus with no authority.

[00:38:17] Speaker 03:
As a matter of state law ultra-virus.

[00:38:18] Speaker 02:
As a matter of state law.

[00:38:20] Speaker 03:
That makes it a 1983 violation?

[00:38:23] Speaker 02:
It does because the remedy or what he was punished for was protected by, they used state law to punish him.

[00:38:30] Speaker 03:
But you didn't raise any state law claims, I'm correct, right?

[00:38:32] Speaker 03:
Correct, no.

[00:38:33] Speaker 03:
So you could have gone to the

[00:38:35] Speaker 03:
district judge with a supplemental state law claim that said, and by the way, what they did violated state law, rule in my favor.

[00:38:42] Speaker 03:
But you didn't.

[00:38:43] Speaker 03:
You only put a 1983 claim.

[00:38:45] Speaker 03:
So as you may have heard earlier today, I'm having some trouble wrapping Oregon state law into the Constitution.

[00:38:51] Speaker 02:
Love my state.

[00:38:52] Speaker 02:
And as a former circuit court judge, I think we made the right choice.

[00:38:55] Speaker 02:
That's all I'll say.

[00:38:57] Speaker 02:
But here's the problem.

[00:38:59] Speaker 02:
When they held July 8 hearing,

[00:39:03] Speaker 02:
The rules that they used didn't, and Judge McChain pulled the string on this.

[00:39:09] Speaker 02:
You'll see it.

[00:39:11] Speaker 02:
They didn't have authority until November 25, 2019, five months later.

[00:39:16] Speaker 02:
They had literally no authority to act on July 8.

[00:39:21] Speaker 02:
And that's part of that foundation of retaliation, because Senator Pruszanski helped write that bill.

[00:39:27] Speaker 02:
I can assume, I think it's fair, that when we took him into deposition,

[00:39:33] Speaker 02:
He didn't, he said, I think I had authority, maybe I didn't or something like that.

[00:39:38] Speaker 02:
My point is, is that they didn't have any authority to act.

[00:39:44] Speaker 02:
And that initial or that foundational element runs through the whole time that they dealt with Senator Boquist.

[00:39:54] Speaker 01:
For qualified immunity, we often find ourselves saying that a police officer can be wrong, he just can't be unreasonable.

[00:40:00] Speaker 01:
So, and your premise is that they never had authority from the outset.

[00:40:06] Speaker 01:
What if they were wrong about that?

[00:40:08] Speaker 02:
What's wrong?

[00:40:10] Speaker 02:
Well, they can be wrong.

[00:40:11] Speaker 02:
And then you add the other factual elements to it of how they dealt with their safety measure, not giving instructions to anybody, never enforcing it, never bringing in the police, the state police, to be there on the days that he was.

[00:40:24] Speaker 01:
And from that, you think the conclusion we ought to draw at summary judgment is that there was no legitimate safety concern?

[00:40:31] Speaker 02:
Yes, because the committee did not rely on any complaints.

[00:40:35] Speaker 02:
They had no evidence in front of them.

[00:40:37] Speaker 02:
In fact, they said this is just one step in a process.

[00:40:42] Speaker 02:
Unfortunately, they had no authority to initiate the process.

[00:40:45] Speaker 02:
That's the point.

[00:40:47] Speaker 01:
Thank you for your advocacy.

[00:40:49] Speaker 01:
Let me just make sure no further questions.

[00:40:51] Speaker 01:
Thank you very much, sir.

[00:40:52] Speaker 02:
Thank you, Judge Christin.

[00:41:06] Speaker 04:
I think this court well understands the issues here, understands why qualified immunity is a challenging argument here and the contours of mootness and also has our briefing on legislative immunity.

[00:41:21] Speaker 04:
I'm also hearing the court understands the disputed issues in the record.

[00:41:24] Speaker 04:
So I don't have anything to add unless this court has questions.

[00:41:27] Speaker 01:
I do not.

[00:41:28] Speaker 01:
Do you have further questions?

[00:41:30] Speaker 04:
Thank you very much.

[00:41:31] Speaker 04:
We would urge the court to reverse both the summary judgment and the fee award and remand with instructions to dismiss.

[00:41:38] Speaker 04:
Thank you.

[00:41:38] Speaker 01:
Thank you.

[00:41:39] Speaker 01:
Thank you both for your very careful advocacy and excellent briefing.

[00:41:43] Speaker 01:
We're going to take this under advisement.

[00:41:45] Speaker 01:
We'll stand in recess.