[00:00:02] Speaker 04:
Good morning, and may it please the court, counsel.

[00:00:05] Speaker 04:
My name is Jesse Buss for Appellants, and I have with me in the courtroom today two of my clients, Gina Gonzalez and Adam Morrow.

[00:00:13] Speaker 04:
Unlike the case you just heard, this matter never made it anywhere close to trial, didn't make it to summary judgment either.

[00:00:19] Speaker 04:
This is a motion to dismiss.

[00:00:22] Speaker 04:
It's an elections law and First Amendment case.

[00:00:25] Speaker 04:
My clients challenged the state statute limiting the time allowed to gather recall petition signatures to 90 days.

[00:00:32] Speaker 04:
That statute is ORS 249875.

[00:00:37] Speaker 04:
There were as applied challenges and facial challenges under both the Oregon Constitution and the First Amendment and 14th Amendment.

[00:00:44] Speaker 04:
The as applied challenges were dismissed and those are not at issue on appeal.

[00:00:48] Speaker 04:
We're only here on the facial challenges.

[00:00:52] Speaker 04:
The district court dismissed the facial challenge under the First Amendment for failure to state a claim.

[00:00:57] Speaker 04:
The court found that the complaint did not allege enough facts and denied leave to amend.

[00:01:03] Speaker 04:
The district court dismissed the facial challenge under the Oregon Constitution based on lack of jurisdiction, specifically the 11th Amendment, finding that the city of Oregon City is immune to suit in federal court on state law claims, essentially the Pennhurst Doctrine.

[00:01:18] Speaker 04:
I'll start with the last issue.

[00:01:21] Speaker 04:
which is the 11th Amendment and state law claims.

[00:01:23] Speaker 04:
This comes down to, is the city of Oregon City an arm of the state?

[00:01:28] Speaker 04:
And I'll address Judge Owens specifically here, because he has special knowledge on this issue.

[00:01:33] Speaker 04:
Just a few months ago and pursuant to the state's supplemental memo filed recently, the Mitchell test, which used to govern this analysis, has recently been overruled and is now governed by, I don't know if it's Cohn or Kahn,

[00:01:49] Speaker 01:
Cone.

[00:01:50] Speaker 04:
Cone, the Cone case, now governs.

[00:01:52] Speaker 04:
So instead of the Mitchell five-factor test, we have the Cone three-factor test.

[00:01:58] Speaker 04:
Now, that three-factor test was not applied by the district court.

[00:02:02] Speaker 04:
Obviously, it didn't exist at the time.

[00:02:04] Speaker 04:
But neither was the Mitchell test applied at the time, which absolutely applied until Cone was decided.

[00:02:11] Speaker 04:
So although the briefing addressed the Mitchell test We're pivoting now here at oral argument to the cone test because that's the governing law So are we sure that the is that not for like a quasi private quasi state entity rather than a city?

[00:02:25] Speaker 00:
I mean, there's nothing private about the city

[00:02:29] Speaker 04:
I don't think that there's a question of whether there's a private entity involved, Your Honor.

[00:02:33] Speaker 04:
I think we've sued the city of Oregon City here through the city recorder.

[00:02:39] Speaker 04:
The cone test does apply.

[00:02:40] Speaker 04:
What tells us, though?

[00:02:43] Speaker 00:
I mean, the question there was whether the bar is part of the state and the bar is sort of a, I mean, arguably sort of a private entity and sort of a state entity.

[00:02:50] Speaker 00:
The court held it was a state entity enough.

[00:02:53] Speaker 00:
But there's nothing equivalent here where it's like, is the city really a club or something?

[00:02:58] Speaker 04:
Well, I'll agree with you for a different reason, Your Honor, and I think although there's been a change in the law, Cohn has replaced Mitchell, neither test is really necessary to apply here.

[00:03:09] Speaker 04:
There's no reason for you to remand to the court for application of this test because it's a well-established law, going back to the 1800s, that municipalities are simply not subject to 11th Amendment immunity.

[00:03:22] Speaker 04:
So I can cite some cases.

[00:03:24] Speaker 04:
There's Lincoln County versus Looning.

[00:03:26] Speaker 04:
That's the 1890 case.

[00:03:28] Speaker 04:
Moore versus County of Alameda.

[00:03:30] Speaker 04:
Fitzpatrick versus Bitzer.

[00:03:32] Speaker 04:
Mount Healthy.

[00:03:33] Speaker 00:
Can I interrupt you?

[00:03:34] Speaker 00:
So I feel like the issues are a little out of order in the way I've been thinking of them here to start with this one.

[00:03:41] Speaker 00:
We need to talk about the other issue at some point.

[00:03:43] Speaker 00:
But so let's assume for a moment that the federal claims need to be dismissed for some reason or another.

[00:03:48] Speaker 00:
I know you won't want us to say that.

[00:03:49] Speaker 00:
But say that all the federal claims need to be dismissed.

[00:03:52] Speaker 00:
And all that was left was the state law claim.

[00:03:55] Speaker 00:
Do you even want that state law claim to stay in federal court?

[00:03:58] Speaker 00:
Or would you be happier for it to be in state court?

[00:04:01] Speaker 00:
Because it seems like you want us to certify the state question to state court, which makes me think if all that was left in this case was the state law claim, no one even wants it to stay in federal court.

[00:04:09] Speaker 04:
Agree, Your Honor.

[00:04:10] Speaker 04:
I don't think we need to talk about that.

[00:04:11] Speaker 04:
There would be no pendant jurisdiction, no reason for the federal court to keep just state law claims if there was not a federal claim.

[00:04:20] Speaker 04:
This isn't a diversity action.

[00:04:22] Speaker 04:
This is federal question.

[00:04:24] Speaker 00:
And so if that was all that was left, could you just voluntarily dismiss it and refile your state law claim in state court?

[00:04:30] Speaker 04:
We could do that, Your Honor.

[00:04:31] Speaker 04:
There's actually a state court case that's quasi-stayed right now in Clackamas County Circuit Court, Oregon State Court, just on the state law claims, which is not doing anything.

[00:04:42] Speaker 04:
It's waiting a resolution of this case.

[00:04:46] Speaker 01:
Well, let me ask you.

[00:04:46] Speaker 01:
I think we issued a focus order in this case.

[00:04:49] Speaker 01:
I'm sorry, Your Honor?

[00:04:49] Speaker 01:
I believe we issued a focus order in this case asking the parties to address Menell liability and whether this is the proper.

[00:04:56] Speaker 01:
I think with the time you have in light of that focus order,

[00:04:59] Speaker 01:
Focus on that.

[00:05:00] Speaker 04:
Absolutely, Your Honor.

[00:05:01] Speaker 04:
Which brings me to my next point.

[00:05:03] Speaker 04:
Actually, Menell is one of those cases in the list I was going through that specifically says municipalities are not subject to 11th Amendment immunity.

[00:05:11] Speaker 04:
So that's, in a way, a red herring here.

[00:05:13] Speaker 04:
The district court got that wrong, got the 11th Amendment immunity analysis wrong.

[00:05:18] Speaker 04:
But I think we should be able to agree that municipalities are not subject to 11th Amendment immunity.

[00:05:23] Speaker 04:
So Menell should be really the focus.

[00:05:25] Speaker 04:
But Manil did say in footnote 54 that there's no basis for concluding that 11th Amendment is a bar to municipal liability.

[00:05:34] Speaker 04:
And moving on to your focus order.

[00:05:37] Speaker 04:
Under Monell, municipalities are liable for damages under 42 USC section 1983 in three situations.

[00:05:45] Speaker 04:
The first is when a plaintiff is deprived of a federal constitutional right pursuant to an expressly adopted local official policy, or by a longstanding practice or custom, or by the decision of a final policymaker.

[00:06:02] Speaker 04:
Here we have an official policy.

[00:06:05] Speaker 04:
Section 26 of the Oregon City Charter says, quote, except as this charter provides otherwise, and as the commission provides otherwise by ordinances relating to elections, the general laws of the state shall apply to the conduct of all city elections, recounts and returns therefrom, and contests thereof.

[00:06:23] Speaker 04:
So that's the local hook.

[00:06:26] Speaker 01:
We are is your client suing because of the local that local hook or isn't the client suing because they don't like Oregon law state law.

[00:06:35] Speaker 04:
Well both your honor.

[00:06:36] Speaker 04:
So the Oregon City Charter has

[00:06:40] Speaker 04:
stated expressly, we as a city are going to adopt the Oregon state statutes and use those to govern our elections.

[00:06:47] Speaker 01:
But don't they have to do that anyway?

[00:06:49] Speaker 01:
Can an Oregon, can a city say we're actually not going to follow state law?

[00:06:52] Speaker 04:
They can, your honor.

[00:06:53] Speaker 04:
That comes down to the Oregon rule, I'm sorry, Oregon Home Rule Authority.

[00:06:57] Speaker 04:
Under the Oregon Constitution, it's well established that local governments have the ability and the exclusive lawmaking power for some areas of law.

[00:07:06] Speaker 04:
And that's under the case of City of La Grande and Astoria versus the Public Employees Retirement Board.

[00:07:12] Speaker 04:
It's a 1978 Oregon Supreme Court case.

[00:07:15] Speaker 04:
That case drew a distinction between local substantive laws, which can be governed by the state,

[00:07:21] Speaker 04:
and local procedural laws.

[00:07:23] Speaker 04:
Regarding procedural laws, the court opined that whenever state law affects, quote, the structure and procedures of local government, the law violates the locality's home rule authority unless the law is justified by a need to safeguard the interests of persons or entities.

[00:07:39] Speaker 04:
So let me just jump in.

[00:07:40] Speaker 04:
Has any of this been briefed?

[00:07:41] Speaker 04:
It was briefed in the district court, Your Honor.

[00:07:44] Speaker 04:
But not to this court?

[00:07:45] Speaker 04:
That's this court, Your Honor.

[00:07:46] Speaker 04:
This goes to the Manel issue, which the court only asked recently for us to address.

[00:07:50] Speaker 04:
So it's not in the briefing.

[00:07:51] Speaker 01:
OK.

[00:07:51] Speaker 01:
I just want to make sure I, because this was not ringing a bell.

[00:07:53] Speaker 01:
So I just want to make sure I hadn't missed something.

[00:07:57] Speaker 00:
I did look at the district court briefing on this.

[00:07:59] Speaker 00:
So I do know about the city of La Grande case you're talking about.

[00:08:03] Speaker 00:
And I think you were just getting to the point that there are exceptions for when the state can

[00:08:08] Speaker 00:
override the local law and it includes when there's an area of substantive regulatory interest by the state.

[00:08:15] Speaker 00:
And I don't really understand why this wouldn't be one of them.

[00:08:17] Speaker 00:
Like, why doesn't the state have an interest in making sure that recall procedures are fair and that they're not taken advantage of or manipulated?

[00:08:26] Speaker 00:
I mean, it seems like these are some pretty basic rules about how they should work.

[00:08:30] Speaker 04:
Judge Friedland, certainly the state has that interest at the state level because the recall right under the Oregon Constitution applies at every level of Oregon government.

[00:08:38] Speaker 04:
Certainly, they can regulate at the state level.

[00:08:41] Speaker 04:
But at the local level, the city has its own separate interests.

[00:08:45] Speaker 04:
The state has no interest, certainly not one they've articulated, in the need to regulate locally, and specifically below in the district court, the state said, this is at 3ER 354, the state says, the recall goes to the very heart of Oregon's self-government, when and how it elects the officials who govern the state.

[00:09:10] Speaker 04:
The same is true at the local level.

[00:09:13] Speaker 04:
The recall right goes to the very core of who is elected and who represents and governs the city, because we're talking about recall of city commissioners here and mayors in this case.

[00:09:24] Speaker 00:
So, and in the case of State X-Rail Pulse-to-Wave... But if we disagree with you about that and we think the state has an interest, then the city policy saying we're going to follow state law kind of washes out because they didn't have a choice, and then there would be no Monell liability, right?

[00:09:40] Speaker 04:
Absolutely, Your Honor.

[00:09:41] Speaker 04:
And then we switched the analysis to Ex Parte Young.

[00:09:45] Speaker 00:
Well, why don't you just lose at that point?

[00:09:46] Speaker 00:
Because if your claim here is against the city official in their official capacity and under Monell, we're supposed to treat that as a claim against the city.

[00:09:55] Speaker 00:
And if you can't meet the criteria for Monell liability, why don't you just lose?

[00:09:59] Speaker 00:
And why do you get to jump to Ex Parte Young at that point?

[00:10:03] Speaker 04:
Because there are two frames here, Your Honor.

[00:10:04] Speaker 04:
There's a frame through Monell, which only governs Section 1983 claims.

[00:10:10] Speaker 04:
It doesn't govern state law claims.

[00:10:11] Speaker 00:
Right, right.

[00:10:12] Speaker 00:
We're only talking about your federal claim here, which is purposes of your federal claim.

[00:10:15] Speaker 04:
Then we switch to Ex Parte Young, because now we're back in 11th Amendment territory.

[00:10:19] Speaker 00:
Why, though?

[00:10:20] Speaker 00:
If the claim is a claim against the city, you have to satisfy Monell.

[00:10:26] Speaker 00:
If you can't, you lose.

[00:10:27] Speaker 00:
I'm not sure why all of a sudden we would talk about Ex Parte Young.

[00:10:30] Speaker 04:
because the lawsuit is solely directed against Katie Riggs, now Jacob Wiley city recorder, in his official capacity.

[00:10:40] Speaker 04:
And the federal case law is very clear.

[00:10:42] Speaker 04:
If you sue a government officer in their official capacity, that's how you get ex parte young to apply.

[00:10:49] Speaker 00:
For a state official when you're trying to get around sovereign immunity.

[00:10:52] Speaker 00:
But when you're suing a city official in their official capacity, if we treat that as a suit against the city,

[00:10:58] Speaker 00:
We just look at it as a suit against the city.

[00:11:00] Speaker 00:
I'm not sure we ever have to talk about Ex Party Young.

[00:11:01] Speaker 00:
It becomes a suit against the city instead of a suit against the official.

[00:11:05] Speaker 04:
Well, Your Honor, the state has vigorously argued, and the city as well, throughout this litigation, that Ms.

[00:11:14] Speaker 04:
Riggs and now Ms.

[00:11:15] Speaker 04:
Wiley are acting as state officials for purposes of implementing the state statute that's challenged here.

[00:11:21] Speaker 00:
Yeah, it does seem like our question is getting at the idea that we might be worried that you guys have been focused on the wrong issues.

[00:11:26] Speaker 00:
So we understand that that's what everyone's been talking about, but is it the right issue?

[00:11:30] Speaker 00:
It seems like maybe the right issue here is Monell.

[00:11:33] Speaker 04:
Well, Your Honor, the way that the district court wrote their findings and recommendations kind of framed the issues.

[00:11:40] Speaker 04:
The court did rely on ex parte Young.

[00:11:43] Speaker 01:
No, I agree 100%.

[00:11:45] Speaker 01:
I guess the question is, was the proper defendant sued here?

[00:11:48] Speaker 01:
I mean, normally when we see these election cases, you're usually suing the Secretary of State or you're suing the governor, not some local official about the efficacy or legality of a statewide law.

[00:12:01] Speaker 01:
That's why I think

[00:12:03] Speaker 04:
The train kind of jumped the tracks.

[00:12:05] Speaker 04:
Typically, Your Honor, yes.

[00:12:06] Speaker 04:
However, when we're talking about the ex parte young exception, the only person that could have been sued under ex parte young was Ms.

[00:12:13] Speaker 04:
Riggs, now Mr. Wiley.

[00:12:15] Speaker 04:
Why not the Secretary of State of Oregon?

[00:12:17] Speaker 04:
Because under Article 2, Section 18 of the Oregon Constitution, it's the local official that is given the responsibility for administering these election laws.

[00:12:25] Speaker 01:
So you're saying that under Oregon law, the local official is the equivalent of the Secretary of State.

[00:12:31] Speaker 00:
Under article to section 18 yes and you don't think you could have brought a challenge to the constitutionality of the state recall law by suing a state official like the state secretary of state or state attorney general or some other state official.

[00:12:45] Speaker 04:
Not in this case, Your Honor.

[00:12:47] Speaker 04:
That would not qualify under Ex parte Young.

[00:12:49] Speaker 04:
Under Ex parte Young, you have to sue the officer who's implementing the law.

[00:12:53] Speaker 04:
And the only person with authority to implement the law in this Oregon City recall case is the local recorder.

[00:12:59] Speaker 01:
And you're saying state law dictates that?

[00:13:01] Speaker 01:
Yes.

[00:13:01] Speaker 01:
And again, this discussion we're here, has any of this been briefed?

[00:13:05] Speaker 04:
I believe it has, Your Honor.

[00:13:06] Speaker 01:
To this court?

[00:13:08] Speaker 04:
the expert a young know that that's in the district court again the district court relied on experts a young in in even reaching the merits of the first amendment they relied on on expert a young so if we if we think that that this is just gone in the totally wrong direction because

[00:13:27] Speaker 00:
You chose to sue the city official, whether you had to do that or not, I'm not sure, but you did.

[00:13:32] Speaker 00:
And if that in an official capacity counts as a suit against the city, and so we're actually analyzing, should be analyzing this case under Monell and not under Ex parte Young, should you have needed to allege the city policy in your complaint?

[00:13:47] Speaker 00:
I mean, if you're under the completely wrong

[00:13:51] Speaker 00:
framework here, should you have a chance to amend or is this not fixable?

[00:13:55] Speaker 00:
What should we do if we think this whole case has been litigated wrong?

[00:13:57] Speaker 04:
Well, we repeatedly, my clients, repeatedly asked the district court for leave to amend.

[00:14:02] Speaker 04:
There's no futility here, Your Honor.

[00:14:04] Speaker 04:
As is clear from this discussion, there's either Monell liability or there's ex parte Young exception liability, one or the other.

[00:14:12] Speaker 00:
Well, either framework applies, but that doesn't mean there is liability.

[00:14:15] Speaker 00:
I'm not sure you've stated a claim.

[00:14:16] Speaker 00:
I am very skeptical that you've stated a claim under Monell.

[00:14:20] Speaker 00:
I'm not sure if you can help me with that, but so far you haven't shown me that there's a policy of the city that is really the problem here.

[00:14:28] Speaker 04:
Well, Your Honor, we may not have stated a claim under Monell.

[00:14:31] Speaker 04:
My clients, frankly, don't care much either way whether we proceed under Monell against the city directly or if there's an ex parte Young exception, which means that Riggs was acting as an officer of the estate, of the state, excuse me.

[00:14:45] Speaker 04:
Either way is an avenue to challenging the state statute.

[00:14:48] Speaker 04:
The only difference between the two, and I see that I'm almost out of time, may I?

[00:14:52] Speaker 04:
Keep going.

[00:14:53] Speaker ?:
Okay.

[00:14:54] Speaker 04:
The only difference between a finding of Manel liability and a finding that this claim should continue under ex parte young is the availability of retroactive damages relief.

[00:15:07] Speaker 04:
And in this case, the only damages my clients have sought are $1 in nominal damages.

[00:15:12] Speaker 04:
Under ex parte young, injunctive relief and declaratory relief are still available.

[00:15:16] Speaker 04:
That's what they really want here.

[00:15:18] Speaker 04:
So it doesn't matter whether you find that Riggs was a city official for purposes of enforcing the statute or whether she was a state official.

[00:15:26] Speaker 04:
Either way, we should be able to proceed to the merits.

[00:15:28] Speaker 04:
And again, I see amount of time, so I won't be able to address the merits of the first amendment.

[00:15:32] Speaker 01:
We'll give you two minutes for rebuttal.

[00:15:34] Speaker 04:
Thank you.

[00:15:43] Speaker 03:
May it please the Court, Council, Benjamin Gutman appearing on behalf of the State of Oregon.

[00:15:47] Speaker 03:
And I'll begin with the Monell issue, which I think is, in a way, the flip side of the 11th Amendment issue that we have briefed.

[00:15:56] Speaker 03:
And I guess we are sort of in a funny position where our view is that the city recorder in this particular instance is acting as a state official, which means that we're not in Monell territory.

[00:16:07] Speaker 03:
We're in Ex Parte Young territory.

[00:16:08] Speaker 03:
And the prospective federal claims should be addressed on the merits as they were in the district court But I guess I mean if you disagree with that then then yes, I mean I agree, you know if you if you take you take plaintiffs At you know at face value that they're actually intending to sue the city of of Oregon City and not

[00:16:34] Speaker 03:
you know, the state through a local official acting with their state official hat on, then they haven't stated a federal claim for that reason as well.

[00:16:46] Speaker 01:
I'm just trying to understand Oregon law here, because again, it wasn't really presented to us this way.

[00:16:52] Speaker 01:
But hypothetically, I think that the city of Portland has an illegal or the state of Oregon has an illegal rule about parking in front of courthouses.

[00:17:02] Speaker 01:
And it's an Oregon law, and I don't like it.

[00:17:05] Speaker 01:
And I see that the guy who's in charge of giving out tickets in Portland, if I'm challenging this law, this you can't park in front of courthouses law, I'm not sure the person I would be suing would be the person giving me the ticket on my car.

[00:17:20] Speaker 01:
It would seem to be by challenging the Oregon law, I would want to challenge the governor or the attorney general or the secretary of state.

[00:17:27] Speaker 01:
Am I wrong about that?

[00:17:29] Speaker 01:
Because normally when we see these election cases, we're not seeing the local county official or city official suit.

[00:17:34] Speaker 01:
It's this superintendent of elections or something like that.

[00:17:38] Speaker 03:
Yes.

[00:17:38] Speaker 03:
I mean, I think you have to identify a state official who has enforcement authority.

[00:17:43] Speaker 03:
That's the proper defendant in an ex parte young action.

[00:17:45] Speaker 03:
Again, we think that a city election official, in this instance,

[00:17:50] Speaker 03:
is the proper defendant in the ex parte action precisely because they are acting essentially as a state official for the same reason that district attorneys may be technically local officials in California as this court has recognized as a matter of state law but they act as state officials when they bring proceedings in the name of the state and so this court is recognized in Wiener and cases like that that

[00:18:19] Speaker 03:
even though they might be nominally a local official as a matter of state law, they may actually be functioning as a state official for some purposes.

[00:18:31] Speaker 00:
We think that's exactly what's going on here and that's why... So in the cases that you've cited about that kind of thing where there's a local person

[00:18:38] Speaker 00:
I thought they had more discretion, more policymaking authority.

[00:18:42] Speaker 00:
They're deciding who to charge or something.

[00:18:44] Speaker 00:
This person doesn't seem to have any discretion.

[00:18:46] Speaker 00:
So can you point to any case where a local official counts as a state official even though they have no discretion?

[00:18:56] Speaker 03:
No, I'm not sure that I can.

[00:18:57] Speaker 03:
But I don't know that the discretion is what matters.

[00:19:00] Speaker 03:
What matters for purposes of ex parte young is that they are the official enforcing the law.

[00:19:08] Speaker 01:
But if that's the case, then the guy who's passing out the tickets on the car in front of the courthouse would be the person you would sue to challenge the Oregon parking law.

[00:19:18] Speaker 01:
I can't imagine that's correct.

[00:19:19] Speaker 03:
Well, I'm having a little bit of trouble figuring out in that hypothetical exactly how the lines of authority would work back to figure out if that person would be the proper official.

[00:19:28] Speaker 01:
Isn't the easy answer is, well, you sue the state official who's in charge of

[00:19:33] Speaker 01:
who's in charge of that law.

[00:19:34] Speaker 01:
And if it's an election law, it's the secretary of state.

[00:19:36] Speaker 01:
If it's a criminal law, maybe it's the attorney general.

[00:19:39] Speaker 01:
Otherwise, it seems to me you'd have these federal suits against local officials constantly rather than against the state official who's actually in charge of the legislation.

[00:19:50] Speaker 01:
Tell me if I'm wrong here, but I've never seen a case like this, an election case.

[00:19:54] Speaker 01:
It's always secretary of state.

[00:19:56] Speaker 01:
I think it's typically the secretary of state.

[00:19:57] Speaker 01:
I would agree with that.

[00:19:58] Speaker 00:
And is there any reason that the Oregon secretary of state could not have been the defendant here?

[00:20:04] Speaker 03:
Well, um

[00:20:07] Speaker 03:
I mean, the secretary of state wasn't asked to do it.

[00:20:10] Speaker 03:
On the facts of this particular local election, I don't think anybody ever asked the secretary of state to do anything.

[00:20:15] Speaker 00:
But it's a facial challenge to the state statute.

[00:20:18] Speaker 00:
So it's the craziest thing.

[00:20:20] Speaker 00:
A facial challenge to the state.

[00:20:22] Speaker 00:
There used to be an as applied.

[00:20:23] Speaker 00:
Maybe that would be different.

[00:20:24] Speaker 00:
But that's out of our domain at this point.

[00:20:26] Speaker 00:
All we have is a facial challenge to the state statute.

[00:20:28] Speaker 00:
So why are we talking about the city?

[00:20:30] Speaker 00:
In fact, I think you're a lawyer for the state.

[00:20:31] Speaker 00:
The city's not even here, right?

[00:20:33] Speaker 00:
It's weird.

[00:20:34] Speaker 03:
I think that's right.

[00:20:36] Speaker 03:
I mean, you'd have to establish a justiciable claim.

[00:20:39] Speaker 03:
You'd have to show standing, and you'd have to show ripeness and all of those sorts of things.

[00:20:42] Speaker 03:
But yes, if you could establish all of that and bring a facial claim, I can't think of a reason why you couldn't bring it against the secretary of state.

[00:20:50] Speaker 03:
And the state intervened in this case because this is, yes, this is a state law, the constitutionality of state law, quintessential state interest.

[00:20:58] Speaker 03:
We are the real party that has a stake in this.

[00:21:01] Speaker 03:
And as I think you can see from the way the case has been litigated, the city doesn't really, except maybe at the margins.

[00:21:09] Speaker 03:
They're just following state law on this question.

[00:21:12] Speaker 01:
And under the 11th Amendment, if the state of Oregon is here, you can't be a defendant in this case.

[00:21:17] Speaker 01:
That's correct.

[00:21:18] Speaker 03:
So, except the secretary, a state official under ex parte, but correct.

[00:21:24] Speaker 01:
Right, the state can't be.

[00:21:25] Speaker 01:
Correct.

[00:21:26] Speaker 01:
And again, I don't see a state official in this case, unless there's something in Oregon law that says that Mr. Wiley is actually a state official.

[00:21:36] Speaker 03:
That is, that is, that has been our argument all along here is, again, citing the, you know, McMillan and Weiner and cases like that, that even though somebody might be, that public officials can wear multiple hats, and you might be a local official for some purposes, and yet when you are enforcing a state law subject to the supervision of and direction of a state, of a state official, you might be acting as a state official.

[00:22:01] Speaker 00:
I mean, those cases that you cited, though, as I said before, are about final policy makers.

[00:22:07] Speaker 00:
So, you know, district attorneys who are making charging decisions for the state.

[00:22:12] Speaker 00:
We don't have this person doing any decision making for the state other than ministerial following the law.

[00:22:19] Speaker 03:
I would agree with that.

[00:22:23] Speaker 00:
So it seems like those cases are not that helpful to tell us that this is how we should be.

[00:22:30] Speaker 03:
I mean, if the upshot of that is that plaintiffs sued the wrong person and the federal claims ought to be dismissed on that basis, I'm certainly not going to fight the court on that.

[00:22:41] Speaker 00:
go down this Monell track because if we take it at face value it really is a city official and then in the official capacity it really is the city.

[00:22:49] Speaker 00:
Now we're in Monell and we have this I think then we get to this home rule morass.

[00:22:55] Speaker 03:
Well, I mean, in theory could, but I guess what I would say about that is the magistrate judge found that this was not a city policy, applying that state law preempted local law on this particular issue.

[00:23:10] Speaker 03:
And that was not objected to in plaintiff's objections to the district judge, so I think you could just say that that issue is waived.

[00:23:18] Speaker 00:
I see.

[00:23:19] Speaker 00:
So then we just treat it as decided that it's really a state policy, not a city policy.

[00:23:23] Speaker 00:
So then they would fail under Monell if we just take that as given, because then there's no city policy.

[00:23:28] Speaker 00:
Correct.

[00:23:30] Speaker 00:
And then would your argument be they don't have a chance to amend, to fix their Monell theory, it's too late?

[00:23:35] Speaker 00:
Or what do you think about that?

[00:23:37] Speaker 03:
Well, I mean, we do think it would be futile to fix it precisely because the magistrate judge got this right.

[00:23:42] Speaker 03:
I mean, first of all, they haven't identified a city policy here at all.

[00:23:47] Speaker 03:
I mean, all they've identified is maybe in theory a city could choose to do something differently, but they haven't identified any respect in which Oregon City, in fact,

[00:23:56] Speaker 03:
has chosen to do something other than follow state law.

[00:24:00] Speaker 03:
But second, this is an area that I think you can read the statutes on their face.

[00:24:06] Speaker 03:
They pretty clearly cover the field here.

[00:24:13] Speaker 03:
I mean, I'm not aware of any municipality that tries to have, you know, preempt to supersede state law or set aside state law in this area to do something that would be, like, longer.

[00:24:26] Speaker 03:
I mean, you know, maybe in theory they could have a shorter deadline, but I don't see any way they could have a longer deadline as a matter of course.

[00:24:32] Speaker 02:
I'm just curious, why didn't you raise the waiver argument, the fact they didn't object to the findings in your arguments?

[00:24:40] Speaker 03:
Because this was never raised on appeal either.

[00:24:43] Speaker 03:
I mean, the way this case has been framed has been a dispute over the 11th Amendment.

[00:24:48] Speaker 03:
Again, our view is that the city recorder is acting as a state official for these purposes, and so the case should be analyzed in that way.

[00:24:58] Speaker 03:
I guess what I'm saying is if you disagree with that and you're trying to analyze the Minnell issue, then I think that really has fallen out of the case.

[00:25:05] Speaker 03:
But that's not our view of how the case ought to be analyzed.

[00:25:10] Speaker ?:
OK.

[00:25:10] Speaker 00:
So if we, one way or the other, agree that the federal claims have to be dismissed here, it seems like the plaintiffs would be willing to take their state claims to state court.

[00:25:23] Speaker 00:
Maybe they would voluntarily dismiss.

[00:25:24] Speaker 00:
Maybe the district court would say, I'm not going to exercise jurisdiction anymore.

[00:25:29] Speaker 00:
Do you agree that that would be OK?

[00:25:30] Speaker 00:
They could refile in state court, or are you going to say that it's too late to do that, or that's race judicata or something?

[00:25:36] Speaker 03:
Well, it wouldn't be, I don't think that would be restutacada.

[00:25:40] Speaker 03:
They have, in fact, filed in the state court.

[00:25:41] Speaker 03:
We have a state court case with the same parties and the same issues that hasn't gone anywhere.

[00:25:48] Speaker 03:
There may be procedural bars to that case.

[00:25:50] Speaker 03:
I mean, there may be standing questions or ripeness questions or

[00:25:54] Speaker 03:
proper party questions, but I don't think there would be anything about this case that would bar them from proceeding with that case.

[00:26:04] Speaker 00:
I just wanted to make sure that anything we do won't interfere with their ability to bring that claim in state court, which seems like is where it belongs.

[00:26:10] Speaker 03:
I don't see how it would.

[00:26:12] Speaker 03:
I mean, it was dismissed for lack of jurisdiction.

[00:26:14] Speaker 03:
I don't think that would have any sort of estoppel effect.

[00:26:19] Speaker 00:
If we say that they haven't succeeded in the elements of Monell though, that might not actually be for lack of jurisdiction.

[00:26:24] Speaker 00:
That could be on the merits.

[00:26:25] Speaker 00:
Does that matter?

[00:26:26] Speaker 00:
It's still only the federal claim that that would be

[00:26:27] Speaker 03:
It would be the federal claim.

[00:26:29] Speaker 03:
Well, I suppose that could have preclusive effect on the question of who is the right defendant.

[00:26:35] Speaker 03:
I mean, if the reasoning of this court is, at least for the purpose of the federal claim, that this really isn't a proper suit against the local official but needs to be against the state official, I suppose that could control.

[00:26:46] Speaker 00:
Well, no.

[00:26:47] Speaker 00:
I think if we said no, no, we would say this is a suit against the city, and they haven't met the claims for the elements of a suit against the city, so they lose.

[00:26:54] Speaker 00:
If we did that, would it have any effect on their state law claim in state court?

[00:26:58] Speaker 03:
I think it might, in theory, have an impact on the question of who the proper defendant in state court is, to the extent... Maybe it wouldn't, but I think it might depend on exactly what this court said and whether it explicitly or implicitly said that... But I don't think it would necessarily.

[00:27:18] Speaker 00:
I mean, that would be a ruling as a matter of... Who is currently the defendant in state court?

[00:27:21] Speaker 03:
It's the city recorder.

[00:27:23] Speaker 00:
And not a state official.

[00:27:24] Speaker 03:
No, the state has intervened in that case as well.

[00:27:28] Speaker 01:
So that suit could then proceed against the state in state court, and we would avoid this whole issue, because there would be no 11th Amendment issue.

[00:27:37] Speaker 03:
There would be no 11th Amendment issue.

[00:27:39] Speaker 03:
I mean, again, that suit was filed long after the events at issue here.

[00:27:43] Speaker 03:
I think there may be some standing questions about that.

[00:27:45] Speaker 03:
But those would be procedural issues sort of unrelated to the merits of this federal case.

[00:27:53] Speaker 02:
Would the dismissal of this case affect any relief that could be obtained in state court?

[00:27:59] Speaker 03:
I don't think directly, no.

[00:28:00] Speaker 03:
I mean, the relief that could be obtained in state court would be governed by the state laws.

[00:28:06] Speaker 03:
I guess I will point out that if you get to that stage where you've dismissed the federal claim and you're trying to figure out what to do about the state claim, there is a passage in Pennhurst that discusses this issue.

[00:28:19] Speaker 03:
Pennhurst, of course, was the case about the ability to sue state officials

[00:28:26] Speaker 03:
for violation of state law, there were local or county officials in that case as well.

[00:28:30] Speaker 03:
And the court said, you know, we've been asked to allow this suit to proceed just against the county officials on the state claims.

[00:28:37] Speaker 03:
We don't think that would be appropriate because there's no way to provide effectual relief in a program where there is county and state intertwined involvement.

[00:28:48] Speaker 03:
And that would, again, be the same here.

[00:28:50] Speaker 00:
And that was as a matter of pendant jurisdiction, which we now call supplemental jurisdiction.

[00:28:54] Speaker 00:
So the court there says,

[00:28:55] Speaker 00:
at this at that point when that's all that's left we should just not exercise supplemental jurisdiction correct and so that would be what we could let the district court decide that or or would you say that we should say there's no supplemental jurisdiction or let the district court decide that I I mean I think you could let the district court decide that I I think it would be an abuse of discretion for the district court to exercise supplemental jurisdiction with all the federal claims dismissed at a motion to dismiss stage with it also seems like no one even wants them here correct

[00:29:24] Speaker 00:
And so I'm having trouble seeing how anything we say about a federal claim needing to be through Monell and not succeeding could have anything to do with the state law claim posture in the state court.

[00:29:34] Speaker 00:
I can't quite see how what we would say about the federal claim proper defendant would affect that.

[00:29:38] Speaker 00:
But even if it somehow could, could they add a state defendant in their state case if they needed to?

[00:29:44] Speaker 03:
They might be able to, yeah, or bring a different case.

[00:29:51] Speaker 03:
I'm happy to address the merits if the court would like, but it seems like that might not be helpful here.

[00:29:56] Speaker 03:
I'm certainly happy to address any other questions that the court has about this.

[00:30:02] Speaker 01:
Thank you very much.

[00:30:03] Speaker 03:
Thank you.

[00:30:16] Speaker 04:
With my two minutes, I'd like to address Ex Parte Young again, because I think based, Judge Friedland, on your comment about your skepticism of a Minnell claim, the best chance of success here is under Ex Parte Young.

[00:30:28] Speaker 04:
And clearly,

[00:30:31] Speaker 04:
The law is very well established under Ex parte Young.

[00:30:34] Speaker 04:
The proper defendant, as just acknowledged several times by my able opponent, is that the proper defendant is the person enforcing the state law.

[00:30:44] Speaker 04:
Here the person enforcing the state law was Katie Riggs, the city recorder.

[00:30:48] Speaker 04:
And I'll draw your attention to some Ninth Circuit cases.

[00:30:52] Speaker 04:
One is Moore versus Urquhart, 899 F3rd, 1094.

[00:30:58] Speaker 04:
That's 2018.

[00:31:01] Speaker 00:
And it's... Are any of these cases going to be against local officials when what the challenge is the constitutionality of a state law?

[00:31:07] Speaker 04:
Yes.

[00:31:08] Speaker 00:
Oh, which one?

[00:31:09] Speaker 04:
Maybe not the constitutionality.

[00:31:11] Speaker 04:
No, yes, they are, Your Honor.

[00:31:12] Speaker 04:
So I'll just quote from that case, from Moore.

[00:31:15] Speaker 04:
Quote, actions under Ex parte Young can be brought against both state and county officials, not city, but county.

[00:31:22] Speaker 04:
See Planned Parenthood of Idaho versus Waston.

[00:31:26] Speaker 04:
376 F3rd, 908.

[00:31:29] Speaker 04:
That's 9th Circuit 2004.

[00:31:31] Speaker 04:
So it is unnecessary for us to resolve the party's dispute over whether the sheriff acts on behalf of King County or the state of Washington when he executes writs of restitution.

[00:31:42] Speaker 04:
The only issue

[00:31:44] Speaker 04:
again, under Ex parte Young, is whether the sheriff had at least some connection to enforcement of the allegedly unconstitutional eviction procedure as authorized by the state statute.

[00:31:56] Speaker 01:
But again, let me jump in.

[00:31:57] Speaker 01:
When a sheriff does an eviction, that's a discretionary decision.

[00:32:00] Speaker 01:
The sheriff has authority whether they're going to evict or not evict.

[00:32:03] Speaker 01:
In this case, this goes back to Judge Friedland's question from before, was there any suggestion that the local official here had any discretion, much like someone who's a sheriff or a police officer would, or district attorney?

[00:32:17] Speaker 04:
Under the terms of the challenge state statute, no, Your Honor, there's no discretion.

[00:32:21] Speaker 04:
But I would submit that discretion has nothing to do with ex parte young.

[00:32:25] Speaker 04:
It's just not part of the analysis.

[00:32:27] Speaker 04:
So to finish my quote, the sheriff's role in executing those writs makes him a proper defendant in an ex parte young suit seeking to enjoin enforcement of the state statute.

[00:32:37] Speaker 04:
And there's other citations in the Moore case as well.

[00:32:40] Speaker 04:
So here, as there, the proper defendant in an ex parte young suit is the enforcing officer.

[00:32:46] Speaker 04:
Here, that's Riggs.

[00:32:48] Speaker 04:
If we had sued the Oregon Secretary of State,

[00:32:50] Speaker 04:
That would not have been a proper defendant, and they would have been properly subject to dismissal as a defendant.

[00:32:55] Speaker 04:
But I want to point out that even if we had sued the Secretary of State in her official capacity, that is the same under the law of the State of Oregon and the Ninth Circuit as suing the State of Oregon.

[00:33:05] Speaker 04:
And here we have the State of Oregon as an intervener defendant.

[00:33:08] Speaker 04:
So they are in this case.

[00:33:10] Speaker 04:
We didn't originally sue the state as such, but they are here.

[00:33:15] Speaker 04:
You can grant the relief.

[00:33:16] Speaker 04:
Thank you.

[00:33:17] Speaker 01:
All right.

[00:33:17] Speaker 01:
Thank you, counsel.

[00:33:17] Speaker 01:
Thank you to both of you for this.

[00:33:20] Speaker 01:
mind-bending fed courts case uh... this matter submitted and we'll go on to the last case for today