[00:00:01] Speaker 03:
Let counsel get settled here, and then I will call the next case, which is Free Speech Coalition versus Anderson.

[00:00:08] Speaker 03:
It is Docket 23-4104.

[00:00:10] Speaker 03:
Good morning, Your Honors.

[00:00:13] Speaker 04:
May it please the Court?

[00:00:15] Speaker 04:
I'm Jeff Sandman on behalf of the plaintiff appellants in this case.

[00:00:19] Speaker 04:
And with the Court's permission, I'm going to aim to reserve about three minutes for rebuttal.

[00:00:24] Speaker 04:
Now, the district court made three critical errors in dismissing plaintiff's complaint alleging constitutional problems with Utah's age verification law.

[00:00:35] Speaker 04:
First, it looked at the attorney general's particular statutory duties, and it wrongly cast them instead as the generalized responsibilities for enforcing the law that have been deemed insufficient to satisfy the connection standard under Ex parte Young for some time.

[00:00:53] Speaker 04:
Second, the court looked at the commissioner of public safety's duty to develop and operate a key component of technological architecture in the Age Verification Act.

[00:01:04] Speaker 04:
And the district court characterized that duty as too attenuated from enforcement to satisfy Ex parte Young.

[00:01:11] Speaker 04:
And finally, the district court misunderstood the arguments made in the whole Women's Health versus Jackson case and denied a form of relief that plaintiffs never asked for in this case.

[00:01:21] Speaker 04:
thereby ignoring the basis for relief that was, in fact, requested.

[00:01:26] Speaker 04:
So I'd like to begin with the first of these errors concerning the attorney general's role in the enforcement.

[00:01:31] Speaker 00:
Counsel, before you get started, can I ask you a preliminary question?

[00:01:37] Speaker 00:
Was the district court correct in assessing the 11th Amendment questions first as opposed to standing?

[00:01:48] Speaker 04:
Judge Eide, it was the court's prerogative.

[00:01:50] Speaker 04:
The Wild Earth Guardians case from the circuit says that when faced with jurisdictional questions involving either the 11th Amendment or Article III standing, the court can decide in which order to address them.

[00:02:02] Speaker 00:
And do you agree that we should start with...

[00:02:05] Speaker 00:
I mean, what would your preference or what would you say with regard to that choice?

[00:02:10] Speaker 04:
I think it makes sense to start with the qualified immunity question.

[00:02:14] Speaker 04:
Qualified immunity, excuse me.

[00:02:16] Speaker 04:
Listening to the case before me.

[00:02:18] Speaker 04:
Pardon me.

[00:02:19] Speaker 04:
Makes sense to begin with the ex parte young question.

[00:02:21] Speaker 04:
And I think the reason for that is courts have described these two questions, standing an ex parte young, as two sides of the causation coin.

[00:02:29] Speaker 04:
When, in the rare circumstance, they differ, the result as to each differs,

[00:02:34] Speaker 04:
It's usually qualified and it's usually ex parte young that tanks the argument.

[00:02:41] Speaker 04:
So as long as we survive by demonstrating a connection to the enforcement under ex parte young, we're going to establish standing as well.

[00:02:49] Speaker 04:
So I think the standing issues really do kind of move to the background in this case because they're basically subsumed within the ex parte young question.

[00:03:01] Speaker 04:
So the attorney general

[00:03:03] Speaker 04:
has two particular statutory duties that are of relevance in this case.

[00:03:08] Speaker 04:
The first is the duty to vindicate state interests in litigation.

[00:03:12] Speaker 04:
And the second is the duty to opine on questions of law in a supervisory capacity for the benefit of executive branch officers.

[00:03:20] Speaker 04:
And these duties are codified at Utah code 67-5-1.

[00:03:24] Speaker 04:
One is 1B.

[00:03:27] Speaker 04:
The other is 1G.

[00:03:29] Speaker 04:
Now, the first of these duties was deemed sufficient to satisfy the ex parte young connection standard in both the Chamber of Commerce versus Edmondson case and the Petrello versus Brownback case.

[00:03:41] Speaker 04:
And the second of these duties was deemed sufficient to satisfy the connection standard and ex parte young in the Kitchen versus Herbert case.

[00:03:48] Speaker 04:
These are all recent authorities from the 10th Circuit.

[00:03:50] Speaker 02:
Well, isn't the Henrikson case the most on point for us to look at?

[00:03:56] Speaker 02:
And that's a case where the authority to enforce it was given to an outside independent board, the PELRB.

[00:04:05] Speaker 02:
And here we've got authority to enforce being given to private citizens.

[00:04:12] Speaker 02:
It's really the same.

[00:04:14] Speaker 02:
We can certainly analogize our holding in Hendrix, which said that the AG did not have the ability to enforce in that case.

[00:04:22] Speaker 02:
Why isn't Hendrix in control?

[00:04:23] Speaker 04:
Hendrickson certainly is one of the controlling authorities in this case, Judge, but we think it's... Why isn't it decisive?

[00:04:29] Speaker 04:
I think it's not decisive for a few reasons.

[00:04:31] Speaker 04:
First of all, because the court in that case recognized that the legislature had vested enforcement authority in another state actor.

[00:04:41] Speaker 02:
In other words... It was an independent body of the board.

[00:04:44] Speaker 04:
It was, but that's a state actor in that case.

[00:04:48] Speaker 02:
Did they say it was a state actor?

[00:04:49] Speaker 04:
I don't believe so, but these were members appointed by the governor

[00:04:53] Speaker 02:
and insulated from... The point being, the attorney general did not have the ability to enforce in that case because enforcement had been given expressly to the board.

[00:05:05] Speaker 02:
Here, same deal.

[00:05:07] Speaker 02:
Enforcement given expressly to private citizens, not to the attorney general.

[00:05:11] Speaker 04:
But there's a distinction, Judge Martz, in that the board in that case was represented by board members who were appointed by the governor, was specifically insulated from

[00:05:23] Speaker 02:
We refer to it as an independent body.

[00:05:27] Speaker 04:
But that's different from empowering effectively the world at large to bring claims on their own behalf.

[00:05:35] Speaker 04:
In that case, there is no state after.

[00:05:37] Speaker 02:
Well, the question here isn't whether it's different.

[00:05:39] Speaker 02:
It's whether the attorney general somehow still has some power despite the fact that the legislature has chosen to give the power to private citizens.

[00:05:48] Speaker 04:
You're right.

[00:05:51] Speaker 02:
How do we get there?

[00:05:52] Speaker 04:
Well, I think we get there by looking at the language of Hendrickson itself.

[00:05:55] Speaker 04:
And Hendrickson distinguished the Petrella case, which I've just referenced, by noting that in the Petrella case, and now I'm quoting, the attorney general had general law enforcement powers, and there was no indication that the statutory provisions at issue fell outside the scope of those powers.

[00:06:13] Speaker 02:
Right.

[00:06:13] Speaker 02:
The statute didn't say anything in that case about enforcement.

[00:06:18] Speaker 02:
Here, we have a statute that's very specific about who can enforce.

[00:06:22] Speaker 02:
That's why it's not like Petrella.

[00:06:24] Speaker 02:
That's why Hendrickson wasn't like Petrella.

[00:06:26] Speaker 02:
We do have the legislature telling us who can enforce, and it doesn't say anything about the attorney general.

[00:06:32] Speaker 04:
Your Honor, the statute says not just who can enforce.

[00:06:35] Speaker 04:
The verification act says who can bring actions under the statute.

[00:06:40] Speaker 04:
That's a more specified, more nuanced standard than what enforcement is.

[00:06:44] Speaker 04:
This Court has recognized that.

[00:06:46] Speaker 04:
In the Prairie Band case,

[00:06:47] Speaker 04:
This court identified that enforcement does not require the ability to compel or constrain.

[00:06:54] Speaker 04:
Enforcement is about assisting in giving effect to a statute.

[00:06:58] Speaker 04:
The attorney general has non-displaced statutory duties in this case that were the attorney general to act on them, would qualify as participating in the enforcement.

[00:07:12] Speaker 04:
I think what might be helpful here as well is looking at,

[00:07:16] Speaker 04:
the way that the Texas legislature legislated in the whole women's health case.

[00:07:23] Speaker 04:
The statute it issued there is called SB 8, also called the Heartbeat Act.

[00:07:27] Speaker 04:
And the legislature specifically divested all state actors from any enforcement authority in that case.

[00:07:35] Speaker 04:
In that case, the legislature wrote, notwithstanding any other law, the requirements of this subchapter shall be enforced exclusively through private civil actions described in the statute.

[00:07:46] Speaker 04:
No enforcement in this subchapter may be taken.

[00:07:48] Speaker 02:
Hendrickson, if I can interrupt, Hendrickson, there was no expressed divestiture of enforcement powers from the attorney general in that case either.

[00:07:56] Speaker 02:
And yet we said expressly, the powers expressly given to the board meant that the attorney general didn't have them.

[00:08:03] Speaker 02:
We did not require an expressed divestiture.

[00:08:06] Speaker 04:
But Your Honor, in Hendrickson, the court did recognize that the Supreme Court of the state had recognized this independence of the board

[00:08:14] Speaker 04:
and that the board was essentially immunized from meddling by the governor.

[00:08:18] Speaker 04:
That was critical to the holding of that case.

[00:08:20] Speaker 04:
The 10th Circuit wouldn't have discussed it otherwise.

[00:08:24] Speaker 04:
The 10th Circuit painstakingly in Hendrickson went through this court's precedence and attempted to distinguish them.

[00:08:31] Speaker 04:
And the manner in which they distinguished Petrella indicates that we're on all fours with Petrella, not necessarily with Hendrickson.

[00:08:39] Speaker 04:
I also just would want to deliver the court's attention to the Edmundson case, which

[00:08:44] Speaker 04:
I think is our strongest authority.

[00:08:47] Speaker 04:
The Edmondson case predates Hendrickson.

[00:08:50] Speaker 04:
And under this court's precedent, to the extent that there is a conflict, it's Edmondson that holds.

[00:08:57] Speaker 04:
But in the Edmondson case, the court recognized the very same statutory duties that we're pointing to here were sufficient to demonstrate that the attorney general had a connection to the enforcement.

[00:09:13] Speaker 04:
In that case,

[00:09:15] Speaker 04:
An injunction in that case would prevent the attorney general, and I'm quoting, from filing lawsuits or defending against suits brought by contractors.

[00:09:23] Speaker 04:
Now that sounds like some esoteric provision of Oklahoma law, but it's not.

[00:09:28] Speaker 04:
And we know this because the Edmundson court cited to the Oklahoma statute of relevance, which is Oklahoma statute 74 at section 18B A3.

[00:09:37] Speaker 04:
in which the attorney general is empowered to initiate or appear in any action in which the interests of the state or the people of the state are at issue.

[00:09:46] Speaker 04:
That is exactly the statute, almost verbatim, that we're invoking in this case as the basis for the attorney.

[00:09:52] Speaker 02:
Did Edmondson involve a situation like Hendrickson in this case where power was given specifically to another party, regardless of whether right now it's a state actor or not a state actor?

[00:10:05] Speaker 04:
It wasn't to my knowledge, Your Honor.

[00:10:07] Speaker 02:
Isn't Hendrickson the only case where we have an express statement in the statute giving power to another entity, regardless of whether it's public or not at this point?

[00:10:19] Speaker 04:
That might be right, Your Honor.

[00:10:21] Speaker 04:
But again, I just want to clarify that providing one body with enforcement authority doesn't necessarily strip other potential enforcers of a statute.

[00:10:33] Speaker 04:
And in this case, by providing a cause of action to private litigants, there is no baked in assumption that state officials with statutory duties are divested of those duties simply because in the first instance, private actors may bring enforcement actions.

[00:10:51] Speaker 04:
No case has gone that far.

[00:10:53] Speaker 04:
The whole women's health case didn't go that far because that case was dealing with specific legislative wrinkles

[00:10:59] Speaker 04:
and a really tightly circumscribed statute drafted by the Texas legislature that Utah did not copy in this case.

[00:11:08] Speaker 04:
The statute in this case simply provides a cause of action to Utah citizens.

[00:11:12] Speaker 04:
It doesn't divest the attorney general of any enforcement role, and it doesn't divest the commissioner of any role in participating in maintaining and developing key architecture under this statute.

[00:11:24] Speaker 03:
So what is the AG's enforcement role?

[00:11:27] Speaker 04:
The role of the enforcement for the attorney general is twofold.

[00:11:30] Speaker 04:
First of all, it's the duty to vindicate state interests in litigation, or in other words, to prosecute or defend actions in which the state or any board or commission may be a party.

[00:11:41] Speaker 04:
In other words, if there's a challenge to this statute, or not even a challenge to this statute, if there is an enforcement action brought by a private litigant, it's the prerogative of the attorney general to defend the state's interest in that litigation.

[00:11:55] Speaker 03:
That's only one of them.

[00:11:56] Speaker 03:
The state's interest being the constitutionality of the statute.

[00:11:59] Speaker 03:
The constitutionality of the statute.

[00:12:00] Speaker 03:
That would be the same in Texas, wouldn't it?

[00:12:02] Speaker 04:
It would, but we're not pointed in Texas to these particular duties of the attorney general, because the Heartbeat Act specifically divested the attorney general of all enforcement role.

[00:12:17] Speaker 03:
Understood, but I thought you were saying that if the AG is defending the constitutionality of the statute, that would qualify as enforcement.

[00:12:26] Speaker 04:
It would, and the Texas statute denied a role for the attorney general in that respect.

[00:12:31] Speaker 04:
I don't know necessarily the nuances of the attorney general's statutory roles.

[00:12:36] Speaker 04:
I do know that the Heartbeat Act, SB 8 in the Texas Whole Women's Health litigation, expressly deprived all state actors of, quote, enforcing the law.

[00:12:46] Speaker 03:
What other enforcement?

[00:12:48] Speaker 04:
The second element of enforcement from the attorney general

[00:12:53] Speaker 04:
is the duty to opine on questions of law in a supervisory capacity for the benefit of executive branch officers.

[00:12:59] Speaker 03:
Meaning advising the legislature?

[00:13:01] Speaker 03:
Advising either the legislature, Judge Phillips, or an executive branch officer.

[00:13:05] Speaker 03:
Isn't that the case in every state?

[00:13:06] Speaker 03:
No, not necessarily.

[00:13:08] Speaker 03:
DAG doesn't advise the other branches?

[00:13:10] Speaker 04:
That's the prerogative of the legislature, and to some extent, the Constitution, to craft the bounds of the duties of that actor.

[00:13:21] Speaker 03:
And so if someone approached the AG and said, we have a legal question.

[00:13:25] Speaker 03:
Here's our question.

[00:13:26] Speaker 03:
And the AG answered that.

[00:13:28] Speaker 03:
Here's our opinion.

[00:13:29] Speaker 03:
Only a court can tell you for sure that AG has enforced something?

[00:13:34] Speaker 04:
Yes, Your Honor, because he's exercising an enforcement

[00:13:38] Speaker 04:
exercising enforcement capacity in a supervisory role.

[00:13:41] Speaker 04:
The Kitchen v. Herbert case says this very thick.

[00:13:45] Speaker 04:
It says the attorney general via an advisory letter to the tax commissioner in that case had essentially supervisory capacity over the tax commissioner.

[00:13:55] Speaker 04:
We've cited in our briefing an identical letter.

[00:13:58] Speaker 02:
I think in Kitchen's we actually said the AG could compel compliance with the statute because the county clerk was under

[00:14:08] Speaker 02:
The authority that was with respect to the authority.

[00:14:11] Speaker 02:
I mean, that's what we said, your honor.

[00:14:12] Speaker 04:
That's correct with respect to the county opinion.

[00:14:14] Speaker 02:
There may have been an opinion in that opinion may have been correct, but it wasn't the opinion that provided the that's probably that's probably right, your honor.

[00:14:21] Speaker 02:
The defendant in that case was the county clerk versus the court clerk who the AG would not have

[00:14:29] Speaker 04:
But the court also went to pains to recognize that the attorney general had authority over the tax commissioner as well and demonstrated that authority by virtue of this advisory letter.

[00:14:44] Speaker 04:
Your Honor, I see I'm running out of time.

[00:14:45] Speaker 04:
I'd like to reserve the little bit I have left for rebuttal.

[00:14:48] Speaker 04:
Thank you very much.

[00:14:50] Speaker ?:
Thank you.

[00:14:50] Speaker 01:
Good morning.

[00:14:51] Speaker 01:
May it please the court.

[00:14:53] Speaker 01:
Sarah Goldberg on behalf of the commissioner and the attorney general.

[00:14:56] Speaker 01:
Your Honors, the only issue for the court to decide today is whether it has subject matter jurisdiction to hear this case.

[00:15:03] Speaker 01:
The constitutionality of the act is not an issue, nor is the wisdom of the Utah legislature in choosing to allow a private versus a public enforcement scheme.

[00:15:12] Speaker 01:
Instead, the question is whether the commissioner and the attorney general have the required connection to the enforcement of the act to satisfy the ex parte young exception to 11th Amendment immunity and the causation and redressability prongs of Article III standing.

[00:15:26] Speaker 01:
They do not.

[00:15:29] Speaker 01:
I was going to start with the commissioner, but since opposing counsel spent most of his time on the attorney general, I'll go there first.

[00:15:36] Speaker 01:
Your Honor, the only connection that attorney general has to the enforcement of the act is his general duty to enforce state law.

[00:15:43] Speaker 01:
We cited a myriad number of cases that say that this isn't enough.

[00:15:49] Speaker 01:
And I don't think opposing counsel did anything to distinguish or even acknowledge most of those.

[00:15:56] Speaker 01:
Petrella isn't such a case.

[00:15:59] Speaker 01:
First off, it wasn't a case like this one where there was a private enforcement mechanism and only a private enforcement mechanism.

[00:16:07] Speaker 01:
There, the court said that the attorney general did have specific enforcement authority under that statute.

[00:16:14] Speaker 01:
Edmondson is the same.

[00:16:16] Speaker 01:
Again, it's not a private enforcement case.

[00:16:20] Speaker 01:
And second, although it's true that the court referenced the attorney general's

[00:16:25] Speaker 01:
general duty to enforce state law, that was specifically applied to issues in the act, like entering into state contracts.

[00:16:36] Speaker 01:
The attorney general is someone who does that.

[00:16:38] Speaker 01:
He inserts the clauses in there.

[00:16:40] Speaker 01:
And he was also responsible for bringing cases against contractors who violated that statute.

[00:16:48] Speaker 01:
We don't have that here.

[00:16:49] Speaker 01:
The only thing that the attorney general can do with regard to the statute

[00:16:54] Speaker 01:
is to, if there is a private enforcement suit, sure, Utah law allows him to intervene.

[00:17:02] Speaker 01:
But his standing in that suit is wholly dependent on the private parties there.

[00:17:08] Speaker 01:
If a private party brings such a suit, AG intervenes, and the private party decides not to continue on with that suit, I don't think the AG has any prerogative on his own to continue on with that lawsuit.

[00:17:23] Speaker 01:
I would also direct the court to the digital recognition case in the Eighth Circuit that specifically deals with this issue in regards to the attorney general's duty to intervene in the ex parte young analysis.

[00:17:39] Speaker 02:
I'm sorry, what's the case?

[00:17:40] Speaker 01:
It's digital recognition network.

[00:17:42] Speaker 01:
It's in our brief.

[00:17:45] Speaker 02:
And can you tell me about the facts of that?

[00:17:48] Speaker 01:
It was a similar private

[00:17:51] Speaker 01:
enforcement mechanism case.

[00:17:52] Speaker 01:
It had to do with license plate readers.

[00:17:55] Speaker 01:
And there was a First Amendment challenge to that.

[00:17:58] Speaker 01:
And one of the arguments that the plaintiffs made was that the AG was a defendant, was that the AG was a proper defendant based on his ability to intervene in the private actions.

[00:18:13] Speaker 01:
And they said that that wasn't enough.

[00:18:16] Speaker 02:
Is that even really an argument here, that the AG can intervene?

[00:18:20] Speaker 01:
From what I heard from what opposing counsel just said, I think that was what his basis for the attorney general's ability to enforce the law was, was to enforce the state's interest.

[00:18:32] Speaker 01:
And I think based on how the statute is written, that's the only way the attorney general can do that here.

[00:18:39] Speaker 01:
I'd also say that you can't distinguish Hendrickson or Whole Woman's Health on the basis that they

[00:18:46] Speaker 01:
purportedly expressly divest the attorney general from enforcement authority.

[00:18:52] Speaker 01:
That's not the ex parte young test.

[00:18:54] Speaker 01:
The question is whether the attorney general has the required connection to the enforcement of the act.

[00:19:02] Speaker 01:
It's not whether there's some other state actor or whether it specifically says the attorney general can't enforce the act.

[00:19:10] Speaker 01:
So I don't think you can distinguish those cases on that basis.

[00:19:14] Speaker 02:
We didn't really talk about expressed divestiture in Hendrickson.

[00:19:20] Speaker 02:
But we did say the attorney general doesn't have the power, even though there was no expressed divestiture.

[00:19:24] Speaker 02:
But did we really consider the question that counsel is arguing today, which is that there would need to be some kind of expressed divestiture, because otherwise the attorney general just has that power and has that obligation

[00:19:39] Speaker 01:
I think for the reasons I've just argued, because the attorney general doesn't have a general duty or an ability outside his ability to intervene, that that expressed divestiture, whether it was discussed or not in Hendrickson, I don't think that matters.

[00:19:56] Speaker 03:
So what qualifies as enforcement?

[00:19:58] Speaker 03:
What would you say, given these facts, the AGE can enforce?

[00:20:05] Speaker 01:
With regards to this statute, nothing.

[00:20:08] Speaker 01:
Other than if there's a private enforcement suit between a private party and the commercial entity, and there was a defense based on constitutionality, the AG could intervene and defend the statute on that grounds.

[00:20:23] Speaker 03:
Well, what would take this act on the other side of the line?

[00:20:27] Speaker 03:
What would it take for the statute to give authority to the AG that was enough that we said, OK, AG has enforcement authority?

[00:20:36] Speaker 01:
Uh, I think it would be, I mean, some type of criminal penalty or potentially a state civil sanction would I think possibly put it across the line there.

[00:20:49] Speaker 03:
Okay.

[00:20:50] Speaker 03:
So AG people in court saying, here's what we want your honor, whether it's civil or criminal.

[00:20:57] Speaker 01:
Well, not honestly, just being in court saying here's what we want.

[00:21:00] Speaker 01:
I mean, the statute would have to give that authority.

[00:21:03] Speaker 01:
I mean, if it was a criminal.

[00:21:05] Speaker 01:
If there's some kind of criminal sanction, I don't think there'd be any argument.

[00:21:09] Speaker 01:
The attorney general does have supervises state prosecutions for that reason.

[00:21:15] Speaker 01:
And I mean, it might be a different question of what agency was enforcing a civil sanction, whether the AG would be a proper party.

[00:21:24] Speaker 01:
But depending on that, he might be.

[00:21:27] Speaker 03:
All right.

[00:21:28] Speaker 03:
Advising agencies isn't enough.

[00:21:33] Speaker 01:
I don't think that could be the case.

[00:21:35] Speaker 01:
I mean, if that was the case, the AG would be a proper party in basically any suit suing a state agency or officer.

[00:21:44] Speaker 01:
And I think, I mean, as far back as the 1800s, the Supreme Court has said that that's not sufficient.

[00:21:51] Speaker 01:
I mean, if you're trying to challenge a state law, you don't get to just automatically bring the AG or the governor or another statewide official.

[00:21:59] Speaker 01:
and is a defendant for that challenge.

[00:22:01] Speaker 03:
If you're challenging constitutionality or what?

[00:22:04] Speaker 03:
Correct.

[00:22:05] Speaker 03:
Don't you have to serve the AG if you're challenging constitutionality of a statute?

[00:22:10] Speaker 01:
That is correct.

[00:22:12] Speaker 01:
And that's so that the AG can be put on notice so that he can intervene.

[00:22:17] Speaker 03:
That person can appear and defend the constitutionality.

[00:22:19] Speaker 01:
And defend the constitutionality when that's at issue.

[00:22:22] Speaker 01:
But again, the AG doesn't have independent standing without the private parties

[00:22:29] Speaker 01:
to maintain that kind of suit.

[00:22:33] Speaker 01:
And I think when you look at the standing issue, I think it helps to kind of illustrate the lack of the connection that both the AG and the commissioner have to the enforcements of this act.

[00:22:47] Speaker 01:
So probably recognizing that the AG doesn't have enforcement authority, Free Speech Coalition and their complaint, they asked for an injunction

[00:22:56] Speaker 01:
to enjoin the AG otherwise intervening to enforce the act.

[00:23:01] Speaker 01:
And so like I was just discussing and that kind of injunction will do nothing to redress the injuries here because we still have private plaintiffs that can bring their own claims regardless of whether the AG intervenes or not.

[00:23:19] Speaker 01:
And they ask for a declaratory judgment.

[00:23:22] Speaker 01:
There we have Whole Women's Health being very clear

[00:23:26] Speaker 01:
that a declaratory judgment that the law is unconstitutional doesn't apply to the world at large.

[00:23:34] Speaker 01:
It only applies to the parties in the case.

[00:23:37] Speaker 01:
And that that might potentially dissuade private parties from bringing their own suits will not satisfy the redressability requirements.

[00:23:50] Speaker 01:
Moving on to the commissioner's connection to the act, the only connection that he has

[00:23:56] Speaker 01:
is that he's tasked under a different statute with creating an electronic driver's license.

[00:24:02] Speaker 01:
This administrative duty doesn't supply the required connection between the commissioner and the enforcement of the act.

[00:24:09] Speaker 01:
He can't bring a cause of action under it.

[00:24:11] Speaker 01:
He can't decide what methods of age verification are reasonable.

[00:24:15] Speaker 01:
And he can't choose how the digital identification card will be utilized.

[00:24:20] Speaker 01:
I'm not aware of any case that involves a state officer

[00:24:24] Speaker 01:
who's tasked with administering an otherwise independent program that's incidentally connected to the challenge legislation where the state officer is a proper defendant under Ex parte Young.

[00:24:36] Speaker 01:
The Prairie Band case isn't it.

[00:24:38] Speaker 01:
They're the, I think it was the secretary of revenue, I don't remember the other.

[00:24:44] Speaker 01:
Director of Motor Vehicles.

[00:24:45] Speaker 01:
Director of Motor Vehicles.

[00:24:47] Speaker 01:
They were making independent discretionary decisions that the

[00:24:53] Speaker 01:
registrations or titles at issue didn't fit the reciprocity requirements.

[00:24:59] Speaker 01:
That was a discretionary decision.

[00:25:01] Speaker 01:
The commissioner here can't do anything like that.

[00:25:04] Speaker 01:
All he does is create a mobile driver's license under a totally different statute.

[00:25:10] Speaker 01:
He's not mentioned in the act, nor is, frankly, the mobile driver's license in the same terms as the mobile driver's license statute.

[00:25:20] Speaker 01:
This is much more like the ministerial duties in Peterson of creating the list of reciprocal states and simply choosing, again, under an unrelated act, the members of an execution team in Ballot.

[00:25:36] Speaker 01:
And again, the standing analysis here helps highlight the commissioner's tenuous connection to the act.

[00:25:47] Speaker 01:
When we look at the injunction,

[00:25:49] Speaker 01:
Again, Whole Women's Health made it clear that you can't enjoin the law itself.

[00:25:55] Speaker 01:
And to be honest, I'm not entirely sure what they're asking for when you compare the complaint and the briefing.

[00:26:02] Speaker 01:
In the complaint, they're asking for the commissioner be enjoined from allowing data from the MDL program to be downloaded at all.

[00:26:12] Speaker 01:
But that's not going to redress free speech coalitions, injuries,

[00:26:17] Speaker 01:
from having a reasonable age verification.

[00:26:20] Speaker 01:
In fact, if you take them at the word that it's the only really functional, or not functional, the only possible method to comply, then there's no way.

[00:26:31] Speaker 01:
And they have even more of a problem.

[00:26:34] Speaker 01:
In their brief, they ask for an order requiring the commissioner to create a workable digital ID card that will allow compliance with the act.

[00:26:44] Speaker 01:
But again, this doesn't get rid of the

[00:26:46] Speaker 01:
reasonable age verification requirements.

[00:26:49] Speaker 01:
And it's also not what they ask for in their complaint.

[00:26:53] Speaker 01:
I mean, if you look at every cause of action in the complaint, it's not complaining about what the commissioner has done.

[00:27:00] Speaker 01:
It just says that the act is unconstitutional for x reason.

[00:27:06] Speaker 01:
And then for the declaratory judgment that the act is unconstitutional, again, we have the same problems I discussed before.

[00:27:16] Speaker 01:
I think Whole Woman's Health and Nova Health Systems confirm this, that we can't look at any deterrent effect on private individuals from bringing suit under the Act for redressability purposes.

[00:27:34] Speaker 01:
And I want to also just note that neither of these jurisdictional inquiries depend on whether there's another appropriate state defendant or other avenue for a plaintiff to challenge the law.

[00:27:46] Speaker 01:
The question is whether the court has subject matter jurisdiction in this case, not some hypothetical case or not that there's some other hypothetical case that a plaintiff sometime could bring.

[00:27:58] Speaker 00:
Well, counsel, that's an interesting point.

[00:28:02] Speaker 00:
You're saying it doesn't depend on this, but is there another proper defendant, state defendant?

[00:28:09] Speaker 01:
State defendant, no.

[00:28:12] Speaker 00:
There is no one they could sue in this case.

[00:28:15] Speaker 01:
Correct, because there is no state official that has the required connection to the enforcement of the act to satisfy either the Ex parte Young requirement or Article III standing.

[00:28:29] Speaker 01:
And those are jurisdictional requirements.

[00:28:31] Speaker 01:
I mean, it might be uncomfortable sometimes, but this court has to.

[00:28:35] Speaker 02:
Sometimes.

[00:28:35] Speaker 02:
This will be the first time that we've held that, isn't it, that there's no state official, no public official that can

[00:28:43] Speaker 02:
that can enforce a legislative act.

[00:28:47] Speaker 02:
So there's no exception.

[00:28:49] Speaker 01:
I mean, I think the Nova Health Systems case came close.

[00:28:52] Speaker 01:
I mean, I realized that they weren't, like the AG and the governor weren't defendants there.

[00:29:00] Speaker 01:
But I mean, Whole Woman's Health held that.

[00:29:03] Speaker 01:
And again, it's not a, the court doesn't get to ignore its jurisdiction for those requirements.

[00:29:10] Speaker 01:
And it also doesn't mean that there's no way

[00:29:12] Speaker 01:
for the act to be challenged.

[00:29:15] Speaker 01:
There could be ways in state court to do a pre-enforcement challenge.

[00:29:21] Speaker 01:
Free speech coalition hasn't addressed that that's impossible.

[00:29:25] Speaker 01:
And again, they have the ability if in a private suit when there's enforcement by a private party to raise that as a defense.

[00:29:37] Speaker 02:
What about Hendrickson?

[00:29:38] Speaker 02:
Do you agree that the board there was

[00:29:40] Speaker 02:
not an independent body or that it was a public entity, as counsel suggested?

[00:29:49] Speaker 02:
Or does it support your argument that you can have an entirely independent?

[00:29:56] Speaker 01:
My understanding was that it was independent.

[00:29:58] Speaker 01:
I don't think there was anything in the statute that expressly said that it was

[00:30:05] Speaker 01:
fully independent from the government.

[00:30:08] Speaker 02:
Is there a difference between being an independent body and being a state actor?

[00:30:11] Speaker 02:
I mean, can you be an independent body and still be a state actor?

[00:30:17] Speaker 02:
Your Honor, I'm not as familiar with the- Well, that's the only case to me that is even slightly akin to what we have here.

[00:30:27] Speaker 01:
And again, I don't think it matters that there's a state actor or not.

[00:30:30] Speaker 01:
And that's our position.

[00:30:33] Speaker 01:
So, Your Honors, if there are no further questions, I ask that you affirm the district court.

[00:30:37] Speaker 01:
Thank you.

[00:30:38] Speaker 04:
Your Honors, I'm going to speak like the micro-machines man for my next 10 seconds here.

[00:30:47] Speaker 04:
General duties that were identified by

[00:30:50] Speaker 04:
my friend on the other side here, refer to background constitutional duties, not the precise statutory duties that the attorney general has that are not displaced that at least a trio of 10th Circuit panels have held are sufficient.

[00:31:04] Speaker 04:
And just I see I'm out of time, Your Honors.

[00:31:06] Speaker 04:
But with respect to the commissioner, the digitized identification card, it's not some incidental aspect of the Age Verification Act.

[00:31:15] Speaker 04:
It provides the veneer of constitutionality, absent which there is no state

[00:31:21] Speaker 04:
channel by which to vindicate First Amendment rights.

[00:31:26] Speaker 04:
My friend says we have a problem if we were to knock out that provision.

[00:31:31] Speaker 04:
That's not the case, because severability analysis demonstrates that if we can challenge a portion of the statute, even a part that's not aggrieving us, and the entire statute falls with us based on a severability analysis, then we're vindicated in a standing analysis.

[00:31:48] Speaker 04:
Unless Your Honors have additional questions, I'll submit.

[00:31:52] Speaker 03:
All right, thank you.

[00:31:52] Speaker 03:
Thank you, Your Honor.

[00:31:53] Speaker 03:
You both went over about the same amount.

[00:31:55] Speaker 03:
Perfect.

[00:31:58] Speaker 03:
Thank you for your helpful arguments.

[00:31:59] Speaker 03:
The case is submitted.

[00:32:01] Speaker 03:
Counsel are excused.