[00:00:02] Speaker 04:
So you may proceed.

[00:00:08] Speaker 02:
Thank you very much.

[00:00:09] Speaker 02:
Good morning, your honors.

[00:00:11] Speaker 02:
May it please the court?

[00:00:13] Speaker 02:
This case presents a conflict between the heavy-handed actions of the state versus a city's constitutional local control, which is driven by the will of its local people.

[00:00:24] Speaker 02:
The recent overbearing legislative actions by the state are trampling not only local control, i.e.

[00:00:30] Speaker 02:
local decision making, but in order to effectuate that overbearing state will, the state is erasing the long-standing bright lines that delineates... I don't want to interrupt you, but I mean there is this big question here of, you know, can you even bring this lawsuit

[00:00:45] Speaker 05:
Do you have standing?

[00:00:46] Speaker 05:
That's the word we've used.

[00:00:47] Speaker 05:
It may not be a perfect word, but it means can you do what you're trying to do here?

[00:00:53] Speaker 05:
And does circuit precedent actually foreclose this argument altogether?

[00:00:57] Speaker 05:
So how do you address those points?

[00:00:59] Speaker 02:
Thank you, Your Honor.

[00:01:00] Speaker 02:
So the circuit precedent, there's a few responses to that.

[00:01:06] Speaker 02:
It's pretty clear by not only Burbank but also San Juan Capistrano that the concurring opinions, those judges believe that that precedent needs probably will be revisited in the first place.

[00:01:19] Speaker 05:
But the issue is we can't do that.

[00:01:21] Speaker 05:
We're a three-judge panel, so you would have to convince us that this precedent is either not binding or it's been made irreconcilable by some waiter authority.

[00:01:30] Speaker 02:
And I would add, Your Honor, that this precedent is not precedent for this case.

[00:01:35] Speaker 02:
That is precedent for cases where there is a political subdivision.

[00:01:39] Speaker 04:
Huntington?

[00:01:40] Speaker 04:
That's not entirely accurate.

[00:01:42] Speaker 04:
And by the way, as you probably know, I'm sympathetic to your argument here.

[00:01:46] Speaker 04:
I wrote a concurring opinion in Capistrano saying that we've probably got it wrong.

[00:01:52] Speaker 04:
But Burbank involved a city charter

[00:01:55] Speaker 04:
just the same.

[00:01:56] Speaker 04:
So how can you say that it doesn't apply or that we've held that it doesn't apply to a subdivision like this?

[00:02:02] Speaker 02:
Well, the Burbank case is an airport authority case.

[00:02:06] Speaker 02:
It's a JPA, a Joint Powers Authority, created by Burbank, Glendale, and Pasadena, all charter cities, by the way.

[00:02:14] Speaker 02:
And they're united as a JPA under government code 6500.

[00:02:20] Speaker 02:
That is actually a political subdivision of the state because it's created by statute.

[00:02:26] Speaker 02:
Charter cities are not created by statute, Your Honor.

[00:02:29] Speaker 02:
They're created by the California Constitution.

[00:02:31] Speaker 04:
So the distinction you're making is that

[00:02:33] Speaker 04:
They were charter cities, but they set up another entity.

[00:02:37] Speaker 04:
Absolutely.

[00:02:38] Speaker 04:
So help me understand, are we being disingenuous if we said charter cities are carved out from these other cases?

[00:02:47] Speaker 02:
No, there's a long history that I would love to share with this court on that very point.

[00:02:53] Speaker 04:
Are you relying on the two California statutes that you cited in your brief, or is there more than that?

[00:02:59] Speaker 02:
No, there's much more than that.

[00:03:00] Speaker 02:
First of all, just to be abundantly clear,

[00:03:03] Speaker 02:
The Gravaman of the Burbank case is an airport authority case, which is a political subdivision created by statute.

[00:03:10] Speaker 02:
The one reference to the public utilities code about a charter city being a political subdivision, the Burbank court said in that case, in that instance, that generally California holds that charter cities are political subdivisions.

[00:03:27] Speaker 02:
But that's actually not true at all.

[00:03:29] Speaker 02:
If the issue of whether-

[00:03:33] Speaker 04:
That's the problem.

[00:03:34] Speaker 04:
I think we kind of collapse back.

[00:03:35] Speaker 04:
Aren't you just saying, well, our precedent isn't correct?

[00:03:40] Speaker 02:
No, I what I'm trying to say, your honor, maybe not so articulately is the Burbank case did not present a full scale analysis to the panel at that time on what is the legal character of a charter city.

[00:03:55] Speaker 02:
And I can show you it's in our brief.

[00:03:58] Speaker 02:
But in addition to that, the Otis case is a perfect example

[00:04:03] Speaker 02:
of the history of where charter cities are considered independent, not political subdivision state.

[00:04:11] Speaker 02:
And that stems from the California constitution.

[00:04:14] Speaker 02:
It's Otis versus Los Angeles, 52 Cal App second, 605.

[00:04:19] Speaker 02:
That's a 1942 case, your honor.

[00:04:22] Speaker 02:
And if you look at page 611 of that case, the Otis court, which is the court of appeal, second appellate district division one said, quote,

[00:04:32] Speaker 02:
As was tersely stated in County of San Mateo versus Coburn, a county is a government agency or political subdivision of the state organized for purposes of exercising some functions of the government.

[00:04:47] Speaker 02:
Whereas a municipal corporation is an incorporation of inhabitants of a specified region for purposes of local government.

[00:04:58] Speaker 02:
And then the Otis Court goes on and again,

[00:05:01] Speaker 02:
Article 11, that's of the California Constitution.

[00:05:05] Speaker 02:
So the court is now looking at the California Constitution, not state statute.

[00:05:09] Speaker 02:
The Otis Court goes on to say, our state constitution provides, quote, the several counties as they now exist are hereby recognized as legal subdivisions of the state.

[00:05:19] Speaker 02:
It is the free consent of the persons comprising them that brings into existence municipal corporations, and they are used for the promotion of their own local and private advantage and convenience.

[00:05:32] Speaker 05:
Here's the thing, though.

[00:05:36] Speaker 05:
For you to win here, you have to first get out of city of Burbank, so you've made some arguments about that.

[00:05:41] Speaker 05:
The second, though, would be, even if that case isn't binding,

[00:05:46] Speaker 05:
Why would this distinction in California law matter?

[00:05:50] Speaker 05:
Because the Lake Tahoe case is a case about federal law.

[00:05:55] Speaker 05:
It's an interpretation of the Constitution, effectively, to say that state subdivisions don't have the ability to sue the state in federal court for constitutional violations.

[00:06:06] Speaker 05:
So why would it matter how exactly the state describes this?

[00:06:09] Speaker 05:
Lake Tahoe could be wrong, but by the theory of the case, I'm not sure how you

[00:06:13] Speaker 05:
are drawing this distinction in a way that matters.

[00:06:15] Speaker 02:
Understood, Your Honor.

[00:06:16] Speaker 02:
It's because Lake Tahoe and San Juan Capistrano and its subsequent cases have all recognized that basically as a creature of the state, the left hand can't sue the right hand, the creature can't sue the creator, and charter cities are created by the people.

[00:06:33] Speaker 04:
Well, they're not really created by the people.

[00:06:35] Speaker 04:
I mean, they're still allowed by the state.

[00:06:40] Speaker 02:
So the distinction between a charter city and a general law city or any other political subdivision is that a charter city is created by Article 11 of the California Constitution, specifically providing for the independence of a charter city, a charter- Yeah, but they don't have independence from the state.

[00:06:58] Speaker 02:
Well, Your Honor, not to sound completely contrarian,

[00:07:04] Speaker 02:
But if we look at the Johnson case— Look, they're not exempt from state law.

[00:07:10] Speaker 04:
They're not exempt from state law, but— You're just saying it gives them a hook to challenge that state law.

[00:07:15] Speaker 02:
More than that, Your Honor.

[00:07:16] Speaker 02:
In the Johnson v. Bradley case, which is just 1992, not that long ago, the California Supreme Court said, when it talked about the history of the Constitution and charter cities, it literally said,

[00:07:28] Speaker 02:
that, but after the Constitution of 1879 was adopted, the Supreme Court in Johnson v. Bradley declared it was manifestly the intent of the drafters of the Constitution to, quote, emancipate municipal governments from the authority of control formally exercised.

[00:07:43] Speaker 05:
Why would the federal Constitution turn on these niceties of state law?

[00:07:48] Speaker 05:
Why would the federal Constitution turn on these niceties of state law?

[00:07:52] Speaker 05:
Because what the case is basically saying is we do not want

[00:07:56] Speaker 02:
states localities in here suing this excuse me subdivisions of the state localities municipalities suing the state that that is essentially what we have here and that analysis requires the courts to look at the character of the plaintiff and i would submit to this court that if this court doesn't allow charter cities and their actors other agents i.e.

[00:08:15] Speaker 02:
the councils and their individual council members to bring federal claims in federal court against the state of california

[00:08:21] Speaker 02:
Then it produces an absurd result and that is to say that the all of these plaintiffs now the doors are The federal the doors of federal court are closed to them that they literally have no recourse the state court action What's the status of the companion case in LA County Superior Court?

[00:08:40] Speaker 02:
So that is now transferred to San Diego.

[00:08:42] Speaker 02:
It's up in the Court of Appeal at this point, Your Honor.

[00:08:44] Speaker 02:
It's been going on for about a minute.

[00:08:49] Speaker 02:
So none of the constitutional issues presented here were raised there.

[00:08:53] Speaker 02:
It was purely a battle of the state law or the application of the state law to the city.

[00:08:58] Speaker 02:
So different issues.

[00:09:00] Speaker 02:
But the court... How is that different?

[00:09:01] Speaker 01:
I mean, you're saying there's a conflict between state law regulating low-income housing versus a city's charter autonomy from...

[00:09:15] Speaker 01:
the reach of that regulation?

[00:09:17] Speaker 02:
So basically in the state court, what the city's position was is that the laws, the state laws that the state were invoking to prosecute the case against the city didn't apply to Huntington Beach as a charter city, but none of the federal questions were raised in that court.

[00:09:33] Speaker 01:
That's not my, I guess the question I'm asking is why can't you get a resolution of this question from the California appellate courts if you're currently on appeal in San Diego?

[00:09:45] Speaker 02:
Well, the city's choice of venue in this case was the federal courts because they are important questions of federal law.

[00:09:51] Speaker 01:
Yeah, I understand that.

[00:09:52] Speaker 01:
But suppose we disagree with the city's position and say, you may have a cognizable claim here in state court, but you can't bring it in federal court.

[00:10:01] Speaker 01:
You're not totally out of court.

[00:10:02] Speaker 02:
Because it's not a, well, Your Honor, I mean, as far as the city's concerned, these are great questions, great federal questions of law that concern us.

[00:10:09] Speaker 05:
But can you not raise that in state court?

[00:10:11] Speaker 02:
Well, theoretically, but we had filed this suit in federal court and at the very same time.

[00:10:17] Speaker 04:
Hold on.

[00:10:17] Speaker 04:
You filed it after, not at the very same time.

[00:10:20] Speaker 04:
You filed it after they filed in state court.

[00:10:22] Speaker 02:
So to be clear, we filed it the day after.

[00:10:25] Speaker 02:
Exactly.

[00:10:26] Speaker 02:
That matters.

[00:10:27] Speaker 04:
You need to be upfront with the court about that.

[00:10:32] Speaker 02:
Well, there are issues about the housing element

[00:10:36] Speaker 02:
weren't raised until their amended complaint three months later.

[00:10:38] Speaker 04:
I'm not sure that that matters.

[00:10:40] Speaker 04:
They filed the claim in state court, amended complaint goes back.

[00:10:46] Speaker 04:
And all of this gets to, even if we were able to get around the standing question, why wouldn't we just rely on younger abstention and say, we should defer to the state court proceeding?

[00:10:59] Speaker 02:
Well, if that were the case, it would essentially cause the city to

[00:11:04] Speaker 02:
Reset the entire litigation in state court because none of these questions of federal law were brought I know but I don't know why couldn't you have raised them?

[00:11:12] Speaker 05:
Why couldn't you have raised them as a defense?

[00:11:14] Speaker 01:
You don't need a federal answer.

[00:11:16] Speaker 01:
You need a state answer whether or not charter cities are

[00:11:20] Speaker 01:
immune as it were or separate sovereigns by virtue of the fact that they're created by the California Constitution and not by state statute.

[00:11:29] Speaker 02:
Those questions are answered by Johnson v. Bradley, by the city of Redondo Beach, by the high to sign case.

[00:11:36] Speaker 01:
Those questions are already answered.

[00:11:37] Speaker 01:
So you're confident that you're going to win on appeal in the state court.

[00:11:41] Speaker 02:
Well, we haven't brought those questions of law to challenge in state court because we've brought them here.

[00:11:47] Speaker 01:
You're highlighting my question.

[00:11:48] Speaker 01:
My question doesn't have anything to do with whether or not you should be in federal court.

[00:11:53] Speaker 01:
The question is whether or not you can obtain adequate relief in state court for which younger abstention at the federal level would be appropriate since the state action was filed first.

[00:12:06] Speaker 02:
Technically, we probably could, but it goes to the quality of their review and the quality of the analysis.

[00:12:12] Speaker 03:
Federal courts are just better.

[00:12:14] Speaker 02:
Yeah, better.

[00:12:15] Speaker 02:
These are very important.

[00:12:16] Speaker 03:
The Anti-Federalists disagreed with you very strongly.

[00:12:20] Speaker 02:
That's an interesting argument.

[00:12:21] Speaker 02:
I mean, honestly, Your Honor, it was a calculated decision by the City of Huntington Beach and way no with the First Amendment.

[00:12:28] Speaker 04:
I understand that, but you can't strategically get out of younger abstention by not bringing claims and then saying they're not being adjudicated there.

[00:12:36] Speaker 01:
When the question is the same, the question is whether or not you are immune.

[00:12:42] Speaker 01:
Immune may be the wrong term, but as a separate sovereign, you're not amenable to regulation by the state when it comes to local issues like housing.

[00:12:52] Speaker 02:
Well, as I said, Your Honor, I don't have an abstention before me in terms of arguing abstention.

[00:12:59] Speaker 01:
But we have an independent obligation to invoke younger abstention if the tests are met.

[00:13:05] Speaker 01:
And it seems to me that they are.

[00:13:08] Speaker 02:
don't think that they are, your honor, and I do know that we briefed it somewhat in our briefing.

[00:13:13] Speaker 02:
I believe that this court, frankly, can rule on the federal questions whether these housing laws as applied to Huntington Beach violate federal law without really disturbing the rulings in state court, albeit I'll acknowledge that if these laws are found unconstitutional, then

[00:13:33] Speaker 02:
There is no need for the state rulings and state court.

[00:13:36] Speaker 01:
He would want an injunction from the federal court essentially enjoining the state of California from enforcing the housing statute against the city of Huntington Beach.

[00:13:46] Speaker 02:
And I do think that would be appropriate considering that this is a threshold question of whether the application of these laws is even constitutional.

[00:13:52] Speaker 01:
The Supreme Court seems to have a slightly different view of that with regard to the underpinning of Younger.

[00:13:58] Speaker 02:
I understand, Your Honor.

[00:13:59] Speaker 02:
I don't think that there's a conflict.

[00:14:02] Speaker 02:
Like I said, we briefed it in our briefing.

[00:14:08] Speaker 02:
The key here is that we properly brought in advanced questions of federal law, critical and important questions of federal law, namely Free Speech 14th Amendment and Commerce Clause, to the federal court.

[00:14:21] Speaker 02:
their case was amended, the state's case was amended much later to then add these unconstitutional laws to their case against the city of Huntington Beach.

[00:14:31] Speaker 04:
I wonder if you shouldn't reserve some time.

[00:14:34] Speaker 04:
You've got a little bit of time left.

[00:14:36] Speaker 04:
Do you want to reserve the remainder of that, unless there's further questions?

[00:14:40] Speaker 02:
No, I will just end by saying I think Burbank is a different case.

[00:14:44] Speaker 02:
It's about the airport authority, which is a JPA, which is a creature of the state.

[00:14:50] Speaker 02:
And that reference that in Burbank that California generally sees charter cities as political subdivisions just doesn't stand up against the Otis ruling, the City of Redondo Beach ruling, the height to sign ruling, all of these court of appeal decisions from different districts, by the way, consistently throughout the state of California, the courts of appeal have held that charter cities are independent and not political subdivisions.

[00:15:16] Speaker 02:
Thank you, Your Honor.

[00:15:17] Speaker 02:
Thank you.

[00:15:18] Speaker 01:
Thank you.

[00:15:23] Speaker 04:
So we'll hear, is it first from Mr. Kinzinger?

[00:15:27] Speaker 04:
Yeah, okay.

[00:15:35] Speaker 00:
Morning, Your Honors.

[00:15:35] Speaker 00:
May I please the court?

[00:15:37] Speaker 00:
This court's South Lake Tahoe decision, which the city has not asked the court to reconsider, controls the outcome of this case.

[00:15:43] Speaker 00:
For decades, this court has held that political subdivisions and their officials cannot assert federal constitutional rights against their parent states.

[00:15:49] Speaker 00:
Even if this court were inclined to reconsider South Lake Tahoe's Brightline rule, this case is the wrong vehicle to do that.

[00:15:55] Speaker 01:
You don't dispute that.

[00:15:58] Speaker 01:
You use the term political subdivision, but it's actually, Charter City is actually a creature of state constitutional law, is it not?

[00:16:06] Speaker 00:
It is a creature of the state constitution.

[00:16:10] Speaker 01:
And would you equate that with a political subdivision, which I would think would be created by statute?

[00:16:16] Speaker 00:
Well, for federal constitutional purposes, Your Honor, it's the derivative nature of the city's local government.

[00:16:21] Speaker 00:
They're a municipal corporation, like any other city.

[00:16:25] Speaker 00:
Adopting a city charter did not turn them into the 51st state.

[00:16:29] Speaker 00:
It's a derivative government.

[00:16:31] Speaker 00:
So it is the law of the circuit that the city does not have standing.

[00:16:35] Speaker 00:
The city argues that California state law gives it a special dispensation to pursue federal claims in federal court, but states cannot do this.

[00:16:42] Speaker 00:
What state law says is irrelevant to the question of federal standing.

[00:16:45] Speaker 00:
The Supreme Court was clear on this point in Hollingsworth versus Perry.

[00:16:48] Speaker 00:
The states cannot hand out tickets to the federal courthouse, and California did not do that here.

[00:16:54] Speaker 00:
Now, South Lake Tahoe recognized a bright line rule, which this court has reaffirmed repeatedly, including just five years ago in the city of San Juan Capistrano.

[00:17:02] Speaker 00:
Now, this court applied that same rule to bar charter city standing in city of Burbank, which also controls this case.

[00:17:09] Speaker 00:
The Burbank court rejected the argument that a charter city had standing because state law gave it authority distinct from that of a general law city.

[00:17:17] Speaker 00:
Now, the airport authority raised and briefed the issue in that case.

[00:17:20] Speaker 00:
It specifically argued that it should not fall under the South Lake Tahoe rule because state law defined different powers to them.

[00:17:28] Speaker 00:
And this court necessarily decided that issue against them.

[00:17:31] Speaker 00:
Secondly, the court did examine state law in that case, but it did that only to note that California law is inconsistent in whether it defines charter cities as political subdivisions.

[00:17:39] Speaker 00:
It did this to reject a premise of the airport authority's argument after rejecting the airport authority's position that state law definitions controlled the question at all.

[00:17:48] Speaker 05:
Are there any other circuits that would have allowed this claim?

[00:17:52] Speaker 05:
Because my understanding is there's some circuits that maybe have a different view when it comes to claims that are grounded in supremacy clause, like a preemption argument.

[00:18:00] Speaker 05:
I don't see that argument being made here by the city.

[00:18:03] Speaker 05:
And so would these claims be viable in any other circuit, do you know?

[00:18:07] Speaker 00:
No, Your Honor.

[00:18:08] Speaker 00:
The second, third, fifth, and tenth circuits, to my knowledge, they permit supremacy clause claims from political subdivisions, but other substantive constitutional provisions, those claims are barred when being brought by political subdivisions.

[00:18:20] Speaker 00:
And that stems from Supreme Court precedent, which holds that, again, political subdivisions do not have due process rights against their states.

[00:18:30] Speaker 00:
So under South Lake Tahoe, the city officials do not have standing here either.

[00:18:34] Speaker 00:
That case included plaintiffs.

[00:18:36] Speaker 00:
The plaintiffs included the mayor and city council members of the city.

[00:18:40] Speaker 00:
Now South Lake Tahoe held that the city official plaintiffs did not have a personal stake in the controversy and that they were simply attempting to circumvent the bar to political subdivision standing.

[00:18:49] Speaker 00:
And the same is true here.

[00:18:50] Speaker 05:
Could these constitutional arguments have been raised in the state court proceeding?

[00:18:55] Speaker 00:
Uh, yes, your honor.

[00:18:56] Speaker 00:
The state court proceeding provides a full forum for them to raise these federal constitutional arguments.

[00:19:01] Speaker 05:
Were they raised there or have they been raised there?

[00:19:04] Speaker 00:
Uh, not to date in our action.

[00:19:06] Speaker 04:
So right now the state, the state court proceeding began with the state initiating basically enforcement action against the city saying you've got to comply.

[00:19:16] Speaker 04:
Correct.

[00:19:16] Speaker 04:
Yeah.

[00:19:17] Speaker 04:
And that would have been the proper a proper vehicle for them to come back and say, no, we don't because this is unconstitutional.

[00:19:25] Speaker 00:
Yes, your honor, they had every right to assert that as an affirmative defense and brief that to the court.

[00:19:29] Speaker 04:
And right now, where is it at?

[00:19:31] Speaker 04:
I'm not sure I got the full answer.

[00:19:33] Speaker 04:
The Superior Court went your way on that case?

[00:19:38] Speaker 00:
Yes, it ruled in, I believe it was June 20th, that the city had an obligation to follow the housing element law and bring its housing element into compliance.

[00:19:45] Speaker 04:
And they have appealed that to the California Court of Appeals.

[00:19:47] Speaker 04:
What's the timeline on that?

[00:19:49] Speaker 04:
Do you know?

[00:19:50] Speaker 00:
I'm not certain on that.

[00:19:52] Speaker 00:
We've also cross appealed because certain forms of relief were not included by the trial courts.

[00:19:58] Speaker 05:
What forms of relief were not included that you wanted?

[00:20:01] Speaker 00:
Injunctive relief that would require the city to essentially adopt its housing elements and comply with the California state housing laws.

[00:20:09] Speaker 01:
And the individual officials did not raise the claim that they were being asked to sign a fraudulent certification with regard to the environmental impacts of the proposed expansion of housing?

[00:20:21] Speaker 01:
I don't believe that issue was briefed, Your Honor.

[00:20:25] Speaker 01:
In the face of an enforcement action seeking to assess civil penalties and injunctive relief for not complying with state law?

[00:20:35] Speaker 00:
Yes, Your Honor, the city raised arguments that the California Housing Element Law did not apply to them because they are a charter city, kind of turning on the charter city general law city distinction, which to be fair is relevant in state courts, but not here for federal standing purposes.

[00:20:51] Speaker 00:
Now, South Lake Tahoe held that city official plaintiffs, they did not have a personal stake in the controversy, and here the city officials are suing in their capacity as elected officers of Huntington Beach.

[00:21:01] Speaker 00:
and they're trying to vindicate the city's own claim to interest in disobeying the state's housing laws.

[00:21:06] Speaker 00:
Now, they claim the consequences for their refusal to adopt a compliant housing element are punishments for official speech, but again, this does not state an injury in fact specific to them.

[00:21:15] Speaker 00:
Every consequence they complain about falls in the city, whether it's increased housing density or a state court enforcement action, which has transpired.

[00:21:22] Speaker 00:
That's because the state's housing and environmental laws regulate cities, they do not regulate people.

[00:21:27] Speaker 00:
And even if this court was inclined to reconsider the Brightline rule of South Lake Tahoe, which again the city has not asked it to do, this case is not the right vehicle.

[00:21:35] Speaker 00:
Now the city and city officials are trying to assert constitutional claims the Supreme Court has already held they do not possess.

[00:21:41] Speaker 00:
This was true in 1907 when the Supreme Court decided Hunter versus Pittsburgh.

[00:21:44] Speaker 00:
It was true in 2009 when the court decided Asursa, and it remains true today.

[00:21:49] Speaker 00:
The city is not protected by the first or 14th Amendments, at least in federal court against its parent state.

[00:21:56] Speaker 00:
And the city officials claim the First Amendment completely shields their votes and speech in their official capacities, but this is not true either.

[00:22:03] Speaker 00:
Justice Scalia already explained in Nevada versus Kerrigan a city council members vote is not a protected expressive activity and the Supreme Court reaffirmed just this year and lengthy versus free.

[00:22:12] Speaker 00:
The first amendment does not protect the speech of public officials.

[00:22:15] Speaker 04:
You would agree, though, no matter how we decide this case, the merits are really not before us, right?

[00:22:20] Speaker 04:
Because, I mean, I guess technically they could be, but the district court never weighed in on the merits.

[00:22:28] Speaker 04:
So it would be odd for us to reach out.

[00:22:30] Speaker 00:
Correct, Your Honor.

[00:22:31] Speaker 00:
This case turns narrowly on the issue of standing.

[00:22:33] Speaker 00:
This court could alternatively affirm the district court on the merits.

[00:22:36] Speaker 00:
That was fully briefed in the district court and also briefed in our brief.

[00:22:42] Speaker 00:
All right, thank you.

[00:22:52] Speaker 06:
May it please the court.

[00:22:53] Speaker 06:
Good morning, Your Honors.

[00:22:54] Speaker 06:
David Marutu for Appellee Southern California Association of Governments known as SCAG.

[00:23:00] Speaker 06:
So this case concerns a simple application of a well-established nine circuit rule that

[00:23:06] Speaker 06:
government entities within a state, which are referred to often in the case laws, political subdivisions, do not have standing to sue the state based on federal constitutional grounds.

[00:23:17] Speaker 06:
The Ninth Circuit Court decision that announced this rule, of course, with South Lake Tahoe, which held that political subdivisions lack standing to sue the state on federal constitutional grounds,

[00:23:27] Speaker 06:
and also held that elected officials of those political subdivisions also lack standing because their interests are either derivative of the city or the political subdivision at stake.

[00:23:38] Speaker 04:
Do you understand Southlake Tahoe to I mean when Southlake Tahoe was issued standing was

[00:23:44] Speaker 04:
bit more of an amorphous concept than it is today.

[00:23:47] Speaker 04:
Do you understand it to be a standing in the sense of Article 3 standing, or do you understand it to be something different than that?

[00:23:56] Speaker 06:
Thank you, Your Honor.

[00:23:57] Speaker 06:
I think ultimately it probably doesn't make a difference in this case.

[00:24:02] Speaker 06:
You know, if we look at standing, if the way that City of South Lake Tahoe used standing was more like the way we typically think of standing now,

[00:24:09] Speaker 06:
I know that there's been discussion in the courts about whether that was appropriate because it was based on prior decisions where the concept of standing was different.

[00:24:19] Speaker 06:
It meant more something like, does the entity have a viable claim?

[00:24:23] Speaker 06:
And I think you get to the same result here no matter what.

[00:24:27] Speaker 06:
The question is, do these political subdivisions have these constitutional rights vis-a-vis the state that they're in?

[00:24:34] Speaker 05:
Yeah, the only way in which it might matter is whether we have to reach it first because here we're being presented with this standing argument.

[00:24:42] Speaker 05:
We also have an abstention argument.

[00:24:44] Speaker 05:
If something goes to Article 3 jurisdiction, we have to decide it first.

[00:24:48] Speaker 05:
If it doesn't, we can go in different orders depending on the case.

[00:24:52] Speaker 05:
And so do you think it's jurisdictional in the sense in which that term is now understood?

[00:24:58] Speaker 06:
Well, I mean, under appreciate the question, your honor, under city of South Lake Tahoe, it was framed as a jurisdictional issue.

[00:25:04] Speaker 06:
I think that's the binding precedent.

[00:25:05] Speaker 06:
So here I think the district court was correct in treating it as jurisdictional and couldn't reach any other questions.

[00:25:12] Speaker 05:
Right.

[00:25:12] Speaker 05:
But does that make sense?

[00:25:13] Speaker 05:
I mean, if, if someone has to, if a city has a completely meritless first amendment claim, do we really need to go through this song and dance about South Lake Tahoe or could we just say this claim fails?

[00:25:27] Speaker 06:
Your Honor, do you mean if they had a meritless First Amendment claim based on First Amendment law or based on this principle announced in the City of South Florida?

[00:25:36] Speaker 05:
Based on any other ground, you know, because the argument that we're being presented with here is that this political subdivision is a little different.

[00:25:43] Speaker 05:
It has a city charter that's different, and we would have to work through all that issue.

[00:25:47] Speaker 05:
But at the end of the day, there's some other problems here, like abstention, which is a problem.

[00:25:52] Speaker 05:
There's probably some other issues with the case as well.

[00:25:55] Speaker 05:
And one question is, in which order do we need to proceed here?

[00:26:00] Speaker 05:
Because if it's jurisdictional under South Lake Tahoe, you would think we would have to deal with that first.

[00:26:06] Speaker 06:
Yeah.

[00:26:06] Speaker 06:
I mean, I think under the circuit law, it's jurisdictional.

[00:26:09] Speaker 06:
But I understand that there has been an analysis of whether that's completely accurate.

[00:26:14] Speaker 06:
And so that may be a decision for another court to look into.

[00:26:18] Speaker 06:
But I think here it's the binding precedent.

[00:26:20] Speaker 01:
But if the city doesn't have standing, then we don't have any authority to proceed further, do we?

[00:26:25] Speaker 06:
I think that's correct, Your Honor.

[00:26:28] Speaker 04:
Yes.

[00:26:28] Speaker 04:
Depending on what kind of standing we're talking about.

[00:26:33] Speaker 06:
Yes.

[00:26:33] Speaker 06:
To the point of charter cities, one of the things I just wanted to make clear is that the city tries to make this point that charter cities are somehow different because they're not created by legislative enactment.

[00:26:45] Speaker 06:
They're not under as much control of the legislature.

[00:26:48] Speaker 06:
And I think that's completely incorrect.

[00:26:51] Speaker 06:
I think the point for a city of South Lake Tahoe's rule is that

[00:26:55] Speaker 06:
as counsel for the state said.

[00:26:57] Speaker 06:
You're talking about a state entity.

[00:26:58] Speaker 06:
You know, it's not the 51st state.

[00:27:00] Speaker 06:
It is an entity within California.

[00:27:02] Speaker 06:
That's what the Constitution cares about, not whether the state of California has decided within itself, based on its constitution, based on legislative enactments, whatever it might be, to give a particular entity more or less power or more or less independence from the legislature.

[00:27:17] Speaker 06:
So I just want to make that crystal clear that I don't think that the status of a charter city having more or less autonomy from the legislature changes anything here.

[00:27:27] Speaker 04:
And just to follow up, Judge Bress asked the state about other circuits.

[00:27:33] Speaker 04:
Are you aware of these, any other cases that would extend or make an exception to political subdivision standing outside of the Supremacy Clause cases?

[00:27:44] Speaker 06:
Your Honor, first of all, I'm unaware of any case deciding this City of South Lake Tahoe standing issue based on whether it's a charter city or not.

[00:27:55] Speaker 06:
as to other constitutional claims.

[00:27:58] Speaker 06:
It's not the rule in the Ninth Circuit.

[00:27:59] Speaker 06:
In the Ninth Circuit, even supremacy clause claims are included.

[00:28:03] Speaker 04:
I understand.

[00:28:03] Speaker 06:
I'm just trying to figure.

[00:28:04] Speaker 04:
I mean, they raise First Amendment claims.

[00:28:06] Speaker 04:
Is there any other circuit where First Amendment claims

[00:28:10] Speaker 04:
or say, you know, federal constitutional claims other than supremacy claims would be recognized as an exception to political subdivisions.

[00:28:19] Speaker 06:
I'm unaware of any federal case where the city could bring the claim it brought here and get past this no-standing rule, whether it's under City of South Lake Tahoe or under one of the other circuits.

[00:28:30] Speaker 06:
decisions.

[00:28:31] Speaker 06:
There have been no exceptions for First Amendment, no exceptions for the other claims that are made here.

[00:28:36] Speaker 06:
The only exception that has been made in some other circuits is the Supremacy Clause, and that's not an issue here.

[00:28:43] Speaker 06:
There isn't a Supremacy Clause claim.

[00:28:45] Speaker 06:
There are different considerations that go into a Supremacy Clause claim, but again, it's just not an issue here.

[00:28:52] Speaker 01:
Council, can you help me with the administrative framework here?

[00:28:56] Speaker 01:
As I understand it, the state allocates a certain percentage of housing units to each city, and if the city doesn't like that allocation, it appeals to your client, and it did that, and it lost before the Southern California Council of Governments.

[00:29:15] Speaker 01:
And then is that the final administrative decision that then triggers review in the state courts?

[00:29:22] Speaker 01:
Is that all have to occur before the state can file their action in Superior Court?

[00:29:29] Speaker 06:
Thank you, Your Honor.

[00:29:29] Speaker 06:
There is, you're absolutely right, there is that administrative process.

[00:29:33] Speaker 06:
And that administrative process was followed here.

[00:29:35] Speaker 06:
The city did appeal the allocation of housing units.

[00:29:38] Speaker 01:
But that goes only to the quantification.

[00:29:41] Speaker 01:
It doesn't really address the issue of whether local officials are being compelled to sign these certificates against their will.

[00:29:49] Speaker 01:
Correct.

[00:29:50] Speaker 06:
And there is no judicial review of that administrative decision.

[00:29:54] Speaker 01:
um... however many housing units skag says you've got to build the city has to build well again the the number the total number of housing units is established by the state right and then the different regional governments determine the allocation within their areas and there's a process for that and that didn't change whatever the initial allocation was that stayed the same and that's all that the southern california council decided

[00:30:19] Speaker 06:
And I think I'm out of time.

[00:30:20] Speaker 06:
If you have any questions, I'd be happy to address them.

[00:30:21] Speaker 06:
Otherwise, we ask that you affirm the decision below.

[00:30:24] Speaker 04:
Thank you.

[00:30:24] Speaker 04:
We'll give one minute for rebuttal.

[00:30:31] Speaker 02:
Thank you, Your Honor.

[00:30:33] Speaker 02:
So there is no judicial review of the SCAG determination, which is part of the city's case.

[00:30:38] Speaker 02:
that it's an unconstitutional set of laws, the lower court's decision rests on whether Huntington Beach is a political subdivision.

[00:30:48] Speaker 02:
That's the question.

[00:30:50] Speaker 02:
And it relied on South Lake Tahoe.

[00:30:52] Speaker 02:
South Lake Tahoe doesn't apply to this case because it's a general law city.

[00:30:56] Speaker 02:
This is a charter city.

[00:30:57] Speaker 02:
It is a creature of the Constitution.

[00:31:00] Speaker 02:
And as Johnson v. Bradley states by the California Supreme Court,

[00:31:03] Speaker 02:
that the Constitution, the draft of the Constitution, emancipated charter cities from the authority of the state legislature.

[00:31:11] Speaker 05:
And Fregeley went on to say... They're not emancipated from the standpoint of the federal Constitution.

[00:31:16] Speaker 05:
The city of Huntington Beach is not some free-floating entity that gets to do whatever it wants and call itself whatever it wants, and is not a city of the state of California.

[00:31:25] Speaker 02:
I just don't understand this argument.

[00:31:27] Speaker 02:
Well, there's no case that bars a non-political subdivision from bringing a federal claim in federal court.

[00:31:33] Speaker 02:
The only cases cited thus far are cases that say a political subdivision cannot.

[00:31:39] Speaker 02:
We are not a political subdivision, and the lower court relied on that case, and it even cited Burbank.

[00:31:45] Speaker 02:
The City of Huntington Beach is not a political subdivision.

[00:31:48] Speaker 04:
Let me ask you this, kind of the counter question to opposing counsel here.

[00:31:54] Speaker 04:
Are there any cases outside of the Ninth Circuit where you could bring this claim?

[00:31:59] Speaker 04:
Has anyone recognized this charter city exception that you're asking for?

[00:32:07] Speaker 02:
There are cases in other circuits, like you indicated, Your Honor, mostly under the Supremacy Clause.

[00:32:13] Speaker 02:
I think the rub is— But those wouldn't apply here.

[00:32:16] Speaker 04:
So that's what I'm wondering is, what is your framework that you would have us look to that would allow these claims to go forward?

[00:32:23] Speaker 02:
And that's why, Your Honor, we started our briefing by saying that this is a case of first impression.

[00:32:27] Speaker 02:
that this is a new, a novel concept.

[00:32:30] Speaker 04:
So that was my question.

[00:32:30] Speaker 04:
But you have nothing else, even outside of the Ninth Circuit, to point to.

[00:32:34] Speaker 02:
Well, and I'm not sure that they would be applicable, because every state constitution is different, providing for its cities in a different and unique way.

[00:32:41] Speaker 02:
And every city in each state is different.

[00:32:42] Speaker 04:
But that's what I'm just asking.

[00:32:44] Speaker 04:
One case anywhere, federal district court, federal appellate court, anything that would allow a city of any nature to bring a claim.

[00:32:53] Speaker 04:
Case of first impression.

[00:32:54] Speaker 04:
OK.

[00:32:57] Speaker 04:
I think we have your argument.

[00:32:59] Speaker 04:
Thank you, Your Honor.

[00:33:01] Speaker 04:
Thank you.

[00:33:04] Speaker 04:
The case is now submitted.

[00:33:05] Speaker 04:
Thank you to both counsel for your arguments in the case.