[00:00:15] Speaker 01:
May it please the court. I'm Mark Little on behalf of the plaintiff's appellants, and I'd like to reserve five minutes for rebuttal.

[00:00:22] Speaker 01:
Under ex parte young, a plaintiff may sue an officer of the state to enjoin the enforcement of an act alleged to be unlawful, so long as that officer has some connection to the enforcement of the act. This court's application of that standard in three cases, Messinas, Yu, and Brown, all demonstrate that ex parte young imposes only a modest burden. and that it is applied pragmatically with its remedial ends in mind. Messinas is particularly relevant here. There, this court held that the Arizona Secretary of State's role in promulgating binding directives to local election officials far exceeded the some connection with enforcement requirement under Ex parte Young.

[00:01:01] Speaker 01:
Messinas provides the blueprint for resolving this case because like in Messinas, here the SBCC members also promulgate binding, non-discretionary directives to local officials who then must follow them as a matter of state law.

[00:01:17] Speaker 01:
Under Messinas, and frankly under this course, other presidents... But the question is enforcement. What enforcement capacity do they have? So I think the lesson from Messinas is that enforcement means something more than the last link in the chain. In Messinas, if we were taking the most narrow view of enforcement, it would be the local election officials who were printing the ballots. But this court said, no, look, ordering someone, giving a legally binding order to take an act, here it was the Secretary of State, or rather there it was the Secretary of State ordering the local officials to print the ballots in a certain way, and again, they had to follow that as a matter of state law, that's also enforcement.

[00:01:56] Speaker 02:
And, you know, looking... Let me answer, you know, I'm just curious, what... So the council promulgates...

[00:02:06] Speaker 02:
The rules, right? I guess, I don't know what to call it.

[00:02:09] Speaker 01:
Regulations, yes, Your Honor. Or... Building code.

[00:02:12] Speaker 02:
Building code, right? The building code, I gather, is binding on the local officials.

[00:02:18] Speaker 01:
Yes, Your Honor.

[00:02:18] Speaker 02:
Correct. And so the local officials apply the building code to applications that come in and do all the processing, approve applications and whatnot. Yes, Your Honor. The building code. Okay, but what does the council do if...

[00:02:36] Speaker 02:
if the local officials don't do it the way they think it should be done? Do they have any power to do anything?

[00:02:44] Speaker 01:
Right. What Sean is getting at, I believe, is whether there's any kind of supervisory function, whether they can ensure that the local officials follow their directives. And I want to make two points here. First, in Messinas, there's no indication at all. In fact, I think it's fairly clear that the Secretary of State there didn't have any to hire and fire or anything like that over the local election officials, and yet that legally binding order was enough.

[00:03:11] Speaker 02:
As to what would happen... Well, there was that manual that she produced, right? Oh, absolutely. It was a binding. The directives in the manual were binding.

[00:03:19] Speaker 01:
Yes, they were binding. But if local election officials just said, this is great, this is a binding order, but I'm just not going to follow it, there's certainly no indication from that case, and I believe the actual facts are that the Secretary of State...

[00:03:33] Speaker 01:
it's unclear if she could have compelled the local officials to follow it. Now, again, that is much the same here. I think everyone agrees that the building code is binding that local officials have to follow. As to practically what would happen if some local building official just decided to do its own thing, to kind of flaunt state law, I think it's pretty clear what would happen in that instance, and that's that the Attorney General would bring suit against that local official compelling them to follow state law.

[00:04:06] Speaker 01:
The Attorney General has certainly done this before in matters where a local county had an ordinance that didn't follow state law. That's the Department of Ecology versus Waukegan County case that we cite in our reply brief on page 16. And there's every indication that would happen here.

[00:04:24] Speaker 01:
But I think- How do we know that?

[00:04:27] Speaker 01:
Well, In terms of how we know it, it's kind of a commonsensical analysis. I mean, the Washington State Energy Code is an important policy of the state of Washington. The idea that the Attorney General would simply stand idly by and let it be flaunted is somewhat strange credulity. And you don't have to consider this in a vacuum. I mean, we laid this out in our opening brief that what we think is going to happen the Attorney General doesn't dispute any of that.

[00:04:57] Speaker 01:
In fact, stays very silent on what actions he would take in that process. But I want to point out that even if the Attorney General wouldn't do anything, and even if this court thinks or arguments as to the Attorney General might be weaker, that really doesn't have anything to do with our arguments against the SBCC members. There are really two groups of defendants here, the SBCC members and the Attorney General. And again, as for the SBCC members, I really think the only distinction that the other side has raised here with Messinas, which, again, I think is a very on-point case, very factually analogous, is that in Messinas, it was a challenge to a statute.

[00:05:36] Speaker 01:
In here, it's a challenge to a regulation.

[00:05:39] Speaker 03:
That is true. That is – Well, not quite. I mean, the district court made this promulgation versus distinction. What's your response to that? Sure.

[00:05:50] Speaker 01:
So – In messiness, I will get to your honest question, but if you'll give me a little latitude, I think the key holding there is that in terms of enforcement, just what is enforcement, we know that issuing binding orders to local officials to take an act that violates federal law is enforcement. Right, and that's what I'm getting at here is that even if you look at Esparta Young, the key case itself, the test is some connection to enforcement. The test isn't and no promulgation.

[00:06:21] Speaker 01:
Messinas doesn't talk about promulgation or act like that's important. I don't know of any case that does. And in fact, I believe my friends on the other side concede in their brief that they are not saying that you cannot have a dual promulgation and enforcement role. And again, I don't know why that wouldn't be the case because I can imagine all kinds of scenarios in which statewide officials issue binding orders that they have some discretion over and that would qualify as enforcement. as enforcement under ex parte young principles.

[00:06:49] Speaker 03:
I think you're right that you're asking for only a modest extension of Macinas. And my problem is that I think Macinas is just wrong. It's just, it was overbroad. It is not in the heartland of what ex parte young is about. And so tell me why Macinas is right and why should we should be granting this modest extension?

[00:07:08] Speaker 01:
So I guess first, first runner, I, I honestly don't think that this requires any extension of Macinas just on, on his points, but as, As to why Messinas was right, I think the notion that ordering someone else to violate federal law doesn't have any connection with that act that violates federal law, that seems a little strained.

[00:07:30] Speaker 03:
Well, I mean, the problem is El Separto Young is about enforcement, right? That means being able to have some accountability over the people below you. Here, you know, the secretary had no accountability. has no accountability over the people below her.

[00:07:43] Speaker 01:
Well, I don't think it's accountability. And I hate to keep harping on Messina's, and I promise I'll try to keep it to a minimum. But there, I just want to be very clear, the Arizona Secretary of State and the local elected officials, there were no lines between them. That's why I think it's wrong. I understand your honor thinks it's wrong. And, of course, everyone knows that the panel has to follow the cases of the court. I think I can create a distinction, but I want you to tell me why. Yes, Your Honor. No, I understand. But I think practically, again, whether kind of there's this power to hire and fire or that kind of thing, just the act of enforcing a law under Messinas, under all, and not just Messinas, I mean, frankly, under you, under Brown, it has never been kind of the last link in the chain of enforcement, the closest connection to enforcement, anything like that.

[00:08:32] Speaker 01:
It's always been a some connection requirement. And so I think the The key notion, the only notion that your honor would need to get comfortable with here is that enforcement means more than kind of boots on the ground doing things. And if I'm ordering someone to do those things, that's also part of the enforcement.

[00:08:50] Speaker 03:
There's some connection test. I mean you could apply that to the legislature, right? And no one thinks that we could use Ex parte Young to enjoin the Arizona legislature or the Washington legislature.

[00:08:59] Speaker 01:
So your honor is absolutely correct that Ex parte Young does not apply to the legislative branch of the state government. That's a bright line rule.

[00:09:06] Speaker 03:
Right. The sum connection test kind of suggests that it would.

[00:09:10] Speaker 01:
Well, but the sum connection test was promulgated in the context of state executive branch officials. I mean, I think the language in Esparta Young limits itself to state executive branch officials because, look, while agencies often do things like making law, I mean, what they're really doing is enforcing law. The executive branch enforces law. Sometimes they enforce law by just issuing orders. Sometimes they do it through a bit more of a formal process with more – Those things might be called rules or regulations, but those are enforcement of law.

[00:09:43] Speaker 01:
And frankly, the Exparta Young test shouldn't turn on, you know, what the executive branch calls its orders, whether they're just kind of preemptive orders or or regulations. And nor should it turn on this power to hire or fire. I mean, the fact that under state law, what the statewide official says goes is a pretty close connection, frankly, more than just some connections. Unless the court has other questions, I'll save my remaining time for rebuttal.

[00:10:11] Speaker 03:
Thank you, counsel.

[00:10:22] Speaker 00:
May it please the court, July Simpson on behalf of the Washington State Building Code Council and the Attorney General of Washington. Ex parte young requires suit against the enforcer. Here, state law explicitly provides The counties and cities are the sole enforcers of the energy codes. The council promulgates but does not enforce the codes. If the plaintiffs want to bring a challenge to those codes in a suit against the council, the proper forum is in a rulemaking challenge under the State Washington Administrative Procedure Act.

[00:10:58] Speaker 00:
I'd like to make three... Could they also see the local officials? Yes, they could do that.

[00:11:04] Speaker 00:
Your Honor.

[00:11:04] Speaker 03:
And they're not entitled to any sovereign immunity, right? The municipalities?

[00:11:08] Speaker 00:
They are not. However, the Attorney General and the Council are.

[00:11:13] Speaker 00:
As an initial matter, I'd like to make three factual points about what the Council does and does not do when speaking about the Council. First, the Council is a quasi-legislative body that does not approve or deny building permits.

[00:11:26] Speaker 03:
I have a question about that. How come you didn't claim some sort of legislative immunity, if that's true?

[00:11:34] Speaker 03:
Can you repeat that? There's a doctrine of legislative immunity that you can't sue – that there's some – on top of sovereign immunity, there's some immunities for legislative branch members.

[00:11:47] Speaker 03:
If they're a quasi-legislative organization, why didn't they claim that?

[00:11:52] Speaker 00:
I suppose it's possible that they could have done that. In this instance, what made the most sense in terms of an immunity to apply is the – immunity of the 11th Amendment, which applies to executive branches, where the council is housed in an executive branch. The council is a slightly unique agency.

[00:12:19] Speaker 00:
There was discussion previously here at the podium about how there are agencies that do promulgate rules and also enforce rules. However, here that is not the case. What we have here is we have an agency, the council, that only promulgates the rules. And then the state statute explicitly states that it's the local officials that do the enforcing of those rules.

[00:12:43] Speaker 00:
And frankly, when we think about the local county officials enforcing those rules, what we talk about, they have significant penalties when they enforce. They can issue stop work orders, fines, even forced demolition. And the council does not oversee or supervise their decisions.

[00:13:00] Speaker 03:
And they don't have any recourse if they can issue opinions on how to interpret the regulations, correct?

[00:13:05] Speaker 00:
They can issue non-binding opinions.

[00:13:08] Speaker 03:
So if they issued an opinion and the local municipality just disregards it, council can do nothing about it.

[00:13:14] Speaker 00:
That's correct, Your Honor. I would like to turn to the discussion of Messinas. Council did speak broadly about Messinas. And Judge Bumate, you mentioned that you thought that Messinas was wrong. And what I would like is to provide a way to look at Messinas and those cases that may assist this court. When we look at Messinas and you and the Brown case, what we're looking at is a distinct line of cases because those are cases that challenge statutes that don't typically give rise to enforcement proceedings.

[00:13:49] Speaker 00:
And that comes directly from the you case. And in these types of cases, the courts use the legal fiction of ex parte young to to allow suit to proceed against state officials who give effect to the challenge codes.

[00:14:04] Speaker 00:
But by contrast, this case falls comfortably within a different category of cases where there are clear enforcement proceedings and clear enforcers.

[00:14:14] Speaker 03:
In Messinas, if one of the county recorders disobeyed the manual, what would happen?

[00:14:20] Speaker 00:
It's unclear there. However, what we're talking about there is they challenged a statute. They challenged the order that candidates need to appear on ballots. There is no discretion there. The statute says the candidates have to appear in a certain order. The manual then enforced that.

[00:14:39] Speaker 03:
But you said they had no enforcement mechanism, right? There has to be some way to make sure the county recorder follows the law.

[00:14:47] Speaker 00:
It is a little difficult. Perhaps what I intended to say is that they don't typically give rise to enforcement proceedings. as opposed to, say, a criminal case or here where you have a building code application and then the code is applied and enforced to that particular application.

[00:15:07] Speaker 02:
In Messinas, if a local official declined to follow the manual or the rule, the statute, I gather some suit could be brought in the local superior court.

[00:15:18] Speaker 00:
Absolutely. I believe, Your Honor, that in that case, actually, the only form was criminal. There was criminal enforcement provisions for failing to follow the Arizona state ballot order statute.

[00:15:32] Speaker 00:
But like I said, this is not the type of case that arises that gives – that's the stereotypical ex parte young enforcement action where there's clear enforcement.

[00:15:43] Speaker 02:
Let's assume that some Democratic county in Arizona that just declined to – you know, just set the ballot out the way they wanted it and didn't follow the statute. I imagine the Republican Party could go to court and try to get an injunction to compel the county clerk to comply with the law.

[00:16:05] Speaker 00:
In that case, it is possible that, again, in that situation, that the court could use the legal fiction of ex parte young to allow suit to proceed against certain state officials who give effect.

[00:16:18] Speaker 02:
I'm talking about county officials.

[00:16:20] Speaker 00:
then in that case the county officials would not have 11th Amendment immunity, and that statute allowed for criminal sanctions against county officials. It failed to follow, but that's not the case here. Here what we have is a case that comfortably falls within the category of cases where it's enforced and there is an enforcer. These cases include Planned Parenthood of Idaho, SNCC, These are all cases where there were clear enforcement proceedings and entities that enforce the law.

[00:16:56] Speaker 00:
And here we have a clear enforcer. That's the local building code officials, not the defendants. How about the attorney general?

[00:17:05] Speaker 00:
The attorney general does not enforce the energy codes. Again, that's entrusted to the local officials and the attorney general does not.

[00:17:13] Speaker 02:
Is the attorney general precluded from, I mean, is there just can't, can't get into this game?

[00:17:18] Speaker 00:
I think what Your Honor may be speaking – referring to is the city of Sunnyside, which is about the discretionary authority to file a lawsuit in a matter of common concern. And it merely states that the AG has discretionary authority when there's a cognizable common law or statutory cause of action. But this is no more than a generalized duty to enforce, which is not enough under ex parte young. In fact, Ex Parte Young specifically contemplated this very scenario where an Attorney General is sued, and it stated that you cannot sue the Attorney General just because he might represent the state in litigation involving enforcement of the statute.

[00:18:02] Speaker 00:
The Attorney General has nothing more than discretionary authority. Ex Parte Young provides relief against the enforcement of laws and not their promulgation. Let me just, I want to make,

[00:18:14] Speaker 02:
Could the Attorney General enforce it, attempt to enforce it? Well, the plaintiffs – I mean, suppose the Attorney General just thought that the state policy of trying to reduce the use of gas needed to be enforced.

[00:18:43] Speaker 02:
Could the Attorney General say, you know, if any local entity doesn't comply, I'm going to go after them?

[00:18:51] Speaker 00:
Well, Your Honor, again, in City of Sunnyside, that did state that the Attorney General does have discretionary authority in some instances, and in those situations, the plaintiffs would need to point to some cognizable common law or statutory law cause of action, and they simply have not done so in this case, which makes them not the appropriate, makes the Attorney General not the appropriate defendant in this particular case under these particular circumstances.

[00:19:23] Speaker 00:
And the plaintiffs have not shown any real likelihood that the Attorney General will take any action, anything beyond mere speculation.

[00:19:34] Speaker 00:
And also, briefly going back to Messinas, as that was points that were made specifically, MECINUS did not hold that there's any lack of discretion anytime the rule promulgator is stripped of their 11th Amendment immunity, and plaintiffs do want to broaden the meaning of MECINUS to mean that it would strip a quasi-legislative agency without enforcement authority of its 11th Amendment immunity, and this is not what Ex Parte Young intended, and it's not how waivers of sovereign immunity work.

[00:20:07] Speaker 00:
If there are no further questions, then in conclusion... This district court properly, the district court properly dismissed the council and the attorney general due to its 11th amendment immunity. And this court should affirm. Thank you.

[00:20:20] Speaker 03:
Thank you, counsel.

[00:20:32] Speaker 01:
A few points in re but all your honors, but of course, feel free to interrupt me with questions. First, I want to, talk about this kind of floodgates or extension of Messina's argument.

[00:20:44] Speaker 01:
Look, there are very clear lines here. It's only the executive branch can't go to the legislative branch. I think that takes a lot of the kind of is ex parte ongoing to swallow everything concerned off the table. Second issue here is really what Messina's did is it's a fairly narrow holding, frankly. It's when a statewide official issues orders that are binding under state law and that leave local officials without discretion to avoid violating federal law, as in it is an order that under state law, they have to violate federal law.

[00:21:20] Speaker 01:
A lot of regulations and a lot of, frankly, orders from statewide officials are going to leave tons of discretion to local officials. In fact, when you look at most orders from the governor just broadly about how to enforce laws, they often leave quite a bit of enforcement discretion with the local officials. Those are not going to work under this theory because the key is it's this binding lawful order that I have no choice but to either violate state law, of course, or comply with.

[00:21:52] Speaker 01:
Second, Messina, it's not some aberration from this court's case law. I mean, this court has a fairly long tradition of having a broad conception of Esparta Young. The U case and the Brown case, I won't belabor the court with the Facts of those, again, they're in a briefing, of course, and my point on those cases isn't that they're factual analogs. I think Messinas is a close factual analog. But you and Brown, it's not so much that they're clear factual analogs. It's that they show the flexible, pragmatic approach the court takes to ex parte Young.

[00:22:26] Speaker 01:
And, again, I think when you kind of add that general approach to Messinas – Even Messinas, I'm not sure, advanced this court's law that much more in that direction than what it already was.

[00:22:38] Speaker 01:
Third point, there was some talk about what else we could do. Could we sue all of the localities and all of that? And I want to be clear, we believe we have a right under Ex parte Young to seek vindication of our federal rights in federal court. It is true that we could bring suit against 100 plus localities, that is less than ideal for numerous reasons.

[00:23:05] Speaker 01:
It's bad for us and that would multiply costs and make it much more complicated.

[00:23:09] Speaker 02:
Could you do a defendant class action?

[00:23:13] Speaker 01:
Well, I'm not sure in this case if we could because there are about 100 some odd defendants. It's not as if we have 20,000 or something like that. And so I'm not sure if numerosity would be satisfied there?

[00:23:28] Speaker 03:
But if he won in one case, wouldn't you appeal up and then they'll be binding on, I don't know how the state courts work there, but.

[00:23:34] Speaker 01:
Sure. So if we sued one of the localities in federal court, of course, that injunction would only be against that locality. You are correct that, well, it wouldn't even have presidential effect unless and until it got to this court, right? Because district court orders don't have presidential effect.

[00:23:53] Speaker 01:
in that instance, we would have a binding precedent.

[00:23:55] Speaker 02:
Well, I mean, they're somewhat authoritative. I mean, you know. Oh, no, no, no.

[00:23:59] Speaker 01:
I do not mean to suggest that. You don't want to dismiss. I do not mean to suggest that we should. You don't want to just say, just record, you know, they don't really mean anything. I am talking in terms of legally binding presidential effect, which, you know, my clients would want to feel comfortable. And frankly, what they would really want is an injunction against the parties and Really, there is no way to obtain an injunction against all the localities without suing them all. And, of course, needless to say, that's a complicated endeavor, but not just for us.

[00:24:30] Speaker 01:
It's bad for the courts, and it's bad for these localities, many of which are small localities, many of which don't like the energy code and frankly don't want to enforce it. So you put really everyone in a bad position.

[00:24:42] Speaker 01:
This is the mechanism that, again, we think is lawful and we think also just makes the most sense in terms of an efficient – adjudication of our claims. And I guess lastly, briefly on the attorney general point, this court's decision in Long versus Vandekamp says, you know, what, what you need to show is something beyond, Hey, the AG is, is the chief law enforcement officer of, of the state. That's not our argument. Our argument is that in the words of this court, there's a real likelihood that the attorney general would take action to enforce this, this law.

[00:25:18] Speaker 01:
And, again, I will simply point out that even now the attorney general has not addressed that issue. And that's not, to be clear, the attorney general taking this action and trying to enforce Washington state law, nothing's wrong with that. It makes perfect sense. And that's exactly what the attorney general is going to do, which is why the attorney general is also a proper ex parte young defendant. Unless the court has further questions, I'll yield the remainder of my time.

[00:25:42] Speaker 03:
Thank you, counsel. This case is submitted.