[00:00:02] Speaker 04:
We'll call the next case, 24-1473, Gays Against Groomers versus Garcia.

[00:00:12] Speaker 04:
Please proceed.

[00:00:13] Speaker 03:
Good morning, Your Honor.

[00:00:15] Speaker 03:
Endell Cold for Gays Against Groomers et al.

[00:00:19] Speaker 03:
May it please the Court, having opened a portion of its committee meetings for public comment and invited citizens to share their own opinions about pending legislation,

[00:00:30] Speaker 03:
The Colorado General Assembly cannot discriminate based on viewpoint.

[00:00:34] Speaker 03:
But Colorado officials did just that when they banned misgendering, dead naming, or disrespecting public figures.

[00:00:43] Speaker 03:
And they proposed to do so again using their highly flexible decorum rules.

[00:00:47] Speaker 03:
This court should reverse because the district court erred when it held that plaintiff's claims were barred by absolute legislative immunity.

[00:00:56] Speaker 03:
First, the act of enforcing the General Assembly's speech restrictions were executive or administrative in nature, not legislative.

[00:01:04] Speaker 04:
So let's talk about that because that seems like a hard argument to make for me.

[00:01:09] Speaker 04:
So I realize we have

[00:01:11] Speaker 04:
The Kim Plain case.

[00:01:16] Speaker 04:
Kim Plain and Borty.

[00:01:17] Speaker 04:
Yeah.

[00:01:18] Speaker 04:
And the name was escaping me for a moment.

[00:01:22] Speaker 04:
But that was a case where there was sort of a blanket exclusion of somebody after the speech had taken place, and they were basically never to come back.

[00:01:33] Speaker 04:
And what concerns me is it seems like public comment and consideration of public comment

[00:01:42] Speaker 04:
And rules of decorum are inherently legislative functions.

[00:01:48] Speaker 04:
How can this not be part of the legislative process?

[00:01:57] Speaker 03:
Well, I would say that part of campaign is there can be a mixed use, kind of a dual use situation.

[00:02:06] Speaker 03:
It may be that some applications of the decorum rules

[00:02:11] Speaker 03:
exercise of a legislative function and other exercises of it are not.

[00:02:17] Speaker 03:
We would submit that here they were enforcing a censorship regime.

[00:02:22] Speaker 03:
It is functionally tantamount to excluding somebody or denying them permanently the right to speak.

[00:02:28] Speaker 04:
How can we know that?

[00:02:29] Speaker 04:
How can we tell that this is part of a censorship regime though?

[00:02:34] Speaker 04:
I mean,

[00:02:35] Speaker 04:
On the other side could say, oh, absolutely not.

[00:02:38] Speaker 04:
It's a decorum rule.

[00:02:40] Speaker 04:
We have people in the audience who take this very seriously, and we're trying to prevent disruption so we can continue with our business.

[00:02:50] Speaker 03:
They have said specifically that you cannot misgender, dead name, or say anything disrespectful about a transgender individual if they're the namesake of legislation.

[00:03:03] Speaker 03:
They're very clear about it.

[00:03:04] Speaker 04:
No, I understand they've said that, but they can have a reason for it that was related to the legislative function.

[00:03:13] Speaker 04:
We don't know what their reason is.

[00:03:15] Speaker 03:
No, the reason specifically that they've said is they don't want hurt feelings.

[00:03:20] Speaker 03:
They don't want their constituents to be upset by what they might hear in the hearing room.

[00:03:25] Speaker 03:
They've been very clear about that.

[00:03:27] Speaker 03:
That's in the briefing.

[00:03:29] Speaker 03:
And that is not a valid reason.

[00:03:31] Speaker 00:
That's essentially a cod... But that's not the issue before us on appeal, is it?

[00:03:35] Speaker 00:
I mean, the reason for the rule of decorum, aren't we only to consider whether or not they have immunity?

[00:03:41] Speaker 00:
And in fashioning this rule as part of a committee hearing in consideration of a bill under proposal that goes before the legislature, if that's part of the sphere of legislative activity, then they're immune.

[00:03:54] Speaker 00:
It doesn't matter to us, or does it, I guess, whether or not the rule of decorum is justified or not.

[00:04:01] Speaker 00:
We think it does matter, Your Honor.

[00:04:03] Speaker 03:
How?

[00:04:06] Speaker 03:
So there are three arguments.

[00:04:07] Speaker 03:
So number one on this immunity issue, number one is that this is an executive or administrative function.

[00:04:15] Speaker 03:
We've talked about that a little bit, and we can talk about it some more.

[00:04:19] Speaker 03:
Second, that legislative immunity is a personal defense.

[00:04:23] Speaker 03:
It's not an offense that runs to the legislative body or the state.

[00:04:29] Speaker 03:
Do you have any cases that support that theory?

[00:04:31] Speaker 00:
Yeah, Sable, Graham, Kentucky v. Graham.

[00:04:38] Speaker 00:
Do you think all those cases hold that they extend that essentially ex parte young type remedy in that manner to legislative immunity?

[00:04:48] Speaker 03:
I wouldn't read it that way.

[00:04:49] Speaker 03:
They say those cases very clearly say

[00:04:53] Speaker 03:
that a personal defense cannot be raised by an official to bar an official capacity claim.

[00:05:05] Speaker 03:
And our claims for injunctive and declaratory relief are official capacity claims.

[00:05:10] Speaker 03:
The Supreme Court has said that.

[00:05:13] Speaker 03:
This Court has said that in Sable.

[00:05:14] Speaker 03:
This Court was correct in Sable in ruling that.

[00:05:17] Speaker 03:
That is binding.

[00:05:19] Speaker 03:
It was binding on the legislature.

[00:05:21] Speaker 03:
It was binding on the district court below.

[00:05:23] Speaker 03:
And frankly, under the principles of stare decisis, it's binding on this court as well.

[00:05:29] Speaker 03:
The official capacity claims cannot be blocked by a personal defense.

[00:05:34] Speaker 03:
Legislative immunity is a personal defense.

[00:05:39] Speaker 03:
Potentially, it could block the nominal damages claims if this court finds it's not an enforcement function.

[00:05:47] Speaker 03:
A personal defense cannot be used to block a claim for injunctive relief.

[00:05:53] Speaker 03:
And Sable D. Myers very clearly held that.

[00:05:57] Speaker 01:
But can a legislative body, not personal, but the legislative body, establish manner, time, place, manner for testimony?

[00:06:08] Speaker 01:
And isn't this not talking about immunities, but just isn't this within their parameter to establish

[00:06:16] Speaker 01:
time, place, and manner of testimony before them.

[00:06:20] Speaker 03:
So can they establish time, place, and manner restrictions?

[00:06:23] Speaker 03:
Yes, but this is not a time, place, and manner restriction.

[00:06:25] Speaker 01:
It struck me it was.

[00:06:26] Speaker 01:
It said the manner that we are imposing is you're not going to defame other people.

[00:06:31] Speaker 01:
That's the manner of the presentation.

[00:06:35] Speaker 03:
They specifically said in a particular way by misgendering or dead naming, which is an ideological point of view, my clients choose not to lie about biological sex and use ideologically laden language that they reject.

[00:06:50] Speaker 03:
By the way, the majority of Americans reject that language too.

[00:06:54] Speaker 03:
So they are just speaking in common sense terms that everyday Americans use every day to talk about men and women.

[00:07:04] Speaker 03:
censored under this decorum rule.

[00:07:08] Speaker 03:
Defendants are very clear that it's misgendering and dead naming that's off limits.

[00:07:14] Speaker 01:
When you say the word dead naming, define that phrase.

[00:07:18] Speaker 03:
Dead naming is a subset of misgendering, Your Honor, and it means using somebody's name before they transition to their new gender.

[00:07:26] Speaker 03:
So if somebody was illegally born as John Smith and then they became

[00:07:34] Speaker 03:
Jamie Smith later on, after they changed their gender, then using that name John would be considered dead naming.

[00:07:41] Speaker 03:
It's using their dead name.

[00:07:43] Speaker 03:
And that is considered offensive to people that buy into gender ideology.

[00:07:48] Speaker 03:
And clearly, and defendants said, this is why we're preventing those kind of terms from being used.

[00:07:56] Speaker 01:
So it wasn't that you're being loud or obstreperous or talking too long.

[00:08:05] Speaker 01:
the content of what you're saying that we're not going to allow.

[00:08:09] Speaker 01:
Could the legislature say in testimony before us, nobody is going to use the n-word if we're talking about racial questions?

[00:08:19] Speaker 01:
Could they say that?

[00:08:21] Speaker 03:
It's an interesting question, Your Honor.

[00:08:23] Speaker 03:
I think that it depends whether you're making a sociopolitical point with it.

[00:08:28] Speaker 03:
For example, under Cohen, somebody could come in and wear fuck the draft in a courthouse.

[00:08:34] Speaker 03:
And the court specifically said, the Supreme Court said, that is expressing a sociopolitical viewpoint.

[00:08:40] Speaker 03:
If it's just a gratuitous use of the n-word, I would say, no, that could not be allowed.

[00:08:48] Speaker 04:
So in your case, if somebody

[00:08:54] Speaker 04:
was dead naming somebody to be snarky and nasty, that could violate a rule of decorum.

[00:09:01] Speaker 04:
But if they were making a substantive argument about legislation, then they could dead name someone.

[00:09:10] Speaker 04:
Correct, Your Honor.

[00:09:13] Speaker 04:
Isn't that really hard for courts to police?

[00:09:17] Speaker 03:
Well, in this case, it's not hard.

[00:09:18] Speaker 03:
I mean, how do we know?

[00:09:19] Speaker 03:
In this case, it's not hard at all, because they wouldn't allow it.

[00:09:24] Speaker 03:
And my clients were just making a sociopolitical point.

[00:09:27] Speaker 03:
They were not allowed to express themselves.

[00:09:29] Speaker 03:
I mean, this legislation was named after Tiara, this man who had transitioned, and he had a criminal history.

[00:09:39] Speaker 03:
They weren't allowed to discuss the criminal history that he had.

[00:09:41] Speaker 03:
They weren't allowed to use his real legal name.

[00:09:44] Speaker 04:
Would they have been allowed to discuss the criminal history if they would have not tried to use the name he was originally given as opposed to Tiara?

[00:09:57] Speaker 03:
I think probably not, because it would have been disrespectful of him.

[00:10:02] Speaker 04:
I mean, the whole bill was about criminal history.

[00:10:06] Speaker 04:
And it was allowing felons to change their names, wasn't it?

[00:10:14] Speaker 03:
It was changing a lot.

[00:10:16] Speaker 03:
Didn't I see that in the briefing?

[00:10:18] Speaker 03:
To allow transgender individuals for that to become an automatic reason to allow for a name change, essentially.

[00:10:25] Speaker 04:
OK, I thought I saw in the briefing that there was some indication that it would make it easier for felons to change their names.

[00:10:31] Speaker 03:
That was an argument that my clients wanted to make, that they were not allowed to.

[00:10:35] Speaker 03:
So I do want to address a third point in response to what Judge Frederico had asked before I went out of time.

[00:10:44] Speaker 03:
And I want to leave a couple minutes for rebuttal if that's possible.

[00:10:47] Speaker 03:
Third point is that applying legislative immunity in this circumstance would conflict with longstanding forum analysis.

[00:11:00] Speaker 03:
The parties and the court, well,

[00:11:03] Speaker 03:
The parties certainly agree that this is a limited public forum.

[00:11:07] Speaker 03:
In a limited public forum, you can't have viewpoint discrimination.

[00:11:10] Speaker 03:
They very clearly engaged in viewpoint discrimination.

[00:11:14] Speaker 03:
I want to specifically call the court's attention to the fact that the legislature made a decision to open up this forum for citizens to express their opinions about pending legislation.

[00:11:29] Speaker 03:
In so doing,

[00:11:31] Speaker 03:
They created a limited public forum, at least on that issue.

[00:11:36] Speaker 03:
People who support legislation like Tiara's law are able to express themselves the way they want to.

[00:11:45] Speaker 03:
My clients, because they descent from gender ideology and they don't want to use ideologically-laden language that they disagree with, are not allowed to express themselves.

[00:11:55] Speaker 03:
That's the problem here.

[00:11:56] Speaker 03:
And finding legislative immunity here would essentially allow

[00:12:00] Speaker 03:
legislative or quasi-legislative bodies to censor all sorts of people that they simply disagree with.

[00:12:07] Speaker 03:
Your Honor, I'd like to reserve the remainder of my time unless there are further questions at this point.

[00:12:12] Speaker 04:
OK, thank you, Counsel.

[00:12:20] Speaker 02:
Good morning, Your Honors.

[00:12:21] Speaker 02:
Edward Ramey and Martha Tierney here on behalf of the defendant, Appleley, legislators.

[00:12:30] Speaker 02:
I guess I'd like to back off a little bit from where the discourse was going a few moments ago and bring us back to the fact that the primary defense that we have asserted in this case is legislative immunity.

[00:12:45] Speaker 02:
If we are within the sphere of legitimate legislative activities, legislative immunity, which is an absolute immunity, motives, and other considerations aside.

[00:12:54] Speaker 01:
It is a personal immunity.

[00:12:56] Speaker 01:
Legislative immunity, like all immunities, as I understand it,

[00:13:00] Speaker 01:
are personal immunities for individuals that are legislatures.

[00:13:04] Speaker 01:
Yes.

[00:13:04] Speaker 01:
I am not aware that legislative immunity can be asserted by an institution like the legislature.

[00:13:13] Speaker 01:
Now, there may be other problems with suing the legislature, but not because of legislative immunity.

[00:13:19] Speaker 01:
Do you agree or disagree?

[00:13:20] Speaker 02:
I partially agree in that in this particular case, and I do want to emphasize this, the Colorado General Assembly as an institution was not named.

[00:13:29] Speaker 02:
and for a lot of reasons we could talk about.

[00:13:31] Speaker 02:
The individuals that were named were the committee chairs, the sponsors, and one other.

[00:13:35] Speaker 02:
But acting in their official capacity.

[00:13:37] Speaker 02:
Acting solely and exclusively in their capacities as state legislators.

[00:13:43] Speaker 02:
They were there for no reason.

[00:13:44] Speaker 01:
So in essence, the legislature was named.

[00:13:46] Speaker 01:
We say when you're suing in your official capacity, it's the equivalent of suing the institution.

[00:13:51] Speaker 02:
I think that is correct, Your Honor.

[00:13:53] Speaker 02:
And I think what was appearing here was an attempt

[00:13:57] Speaker 02:
to avoid sovereign immunity issues.

[00:14:00] Speaker 00:
I'm sure.

[00:14:01] Speaker 02:
That's why they named the individuals.

[00:14:03] Speaker 02:
But as in Tenney v. Brando, which is sort of the seminal case in this whole area, as in Tenney, individual legislators were named.

[00:14:13] Speaker 02:
So the question then comes down.

[00:14:16] Speaker 02:
The question then comes down, this is not an 11th Amendment immunity case.

[00:14:22] Speaker 02:
This is an absolute, in the district court,

[00:14:25] Speaker 02:
Totally understood.

[00:14:25] Speaker 02:
This is an absolute legislative immunity case.

[00:14:30] Speaker 02:
And if we are acting as legislators in this case, within the sphere of legitimate legislative activity, in this case, a committee hearing to consider the merits of a bill, the inquiry stops there.

[00:14:47] Speaker 02:
And I would even point back.

[00:14:49] Speaker 02:
There was no question in this case that the subject matter before the committee

[00:14:54] Speaker 02:
the testimony that was being proffered was about pending legislation.

[00:15:01] Speaker 02:
This was even more core legislative function, I would respectfully submit to the court then, and Tenney itself, where Brandhove was making accusations that he was brought before the committee under subpoena, not for the consideration really of any

[00:15:18] Speaker 02:
legislation as such, but to intimidate and punish him for political activities in a gubernatorial race in California prior to that.

[00:15:27] Speaker 04:
So in your view, even though the committee chairs and various folks are acting in their official capacity, these rules of decorum could have been, we're not going to allow anyone to speak against the bill.

[00:15:41] Speaker 04:
Only people in favor of the bill may speak.

[00:15:45] Speaker 04:
We're not going to allow people to criticize any individual legislators or their positions in the meeting.

[00:15:55] Speaker 04:
Only people who want to speak positively about individual legislators may speak, and that would be absolutely immune

[00:16:07] Speaker 02:
Technically, I would say yes.

[00:16:10] Speaker 02:
That is not what happened here.

[00:16:12] Speaker 04:
No, I'm not saying it happened, but that's your position.

[00:16:15] Speaker 02:
Well, I think that is the point of the Tenney case.

[00:16:21] Speaker 02:
And actually, that poses the question.

[00:16:23] Speaker 04:
So in your view, you can discriminate against viewpoints as long as it's in a legislative hearing and people are invited to speak.

[00:16:35] Speaker 04:
as long as it's absolutely immune, whether it's someone being sued in their individual capacity or their official capacity?

[00:16:43] Speaker 02:
First, let me just compliment the court, because I think that's a perfect question that goes to the heart of tenning.

[00:16:49] Speaker 02:
I think the answer to that question is yes.

[00:16:52] Speaker 02:
If we are within the context of a legitimate legislative function, which there is no doubt we were here, the inquiry stops there.

[00:17:05] Speaker 02:
It's whether it's discriminatory, and you didn't give these people an opportunity to talk as much as these people.

[00:17:13] Speaker 02:
If we are within the sphere of legitimate legislative activity, the inquiry stops.

[00:17:19] Speaker 02:
That is where the absolute immunity sets in, and the district court so holds.

[00:17:25] Speaker 00:
So held.

[00:17:26] Speaker 00:
Can I ask you about the applicability of the campaign

[00:17:32] Speaker 00:
case where it talks about committee hearings, and no doubt this is a hearing, but is it common in the Colorado legislature to have public comments on pending bills?

[00:17:41] Speaker 00:
Okay, so this may not be something I'm familiar with other legislative bodies.

[00:17:46] Speaker 00:
So the public commentary is part of any other discussion the legislators have concerning pending legislation.

[00:17:53] Speaker 00:
It's all sort of wrapped up in the same.

[00:17:54] Speaker 00:
It's not a separate session.

[00:17:55] Speaker 02:
Yes, there's a history to how we got to this, but the

[00:18:01] Speaker 02:
The legislature is constitutionally required in Colorado to send all legislation to committees of both houses.

[00:18:09] Speaker 02:
They do that.

[00:18:09] Speaker 02:
They are not constitutionally, or to my knowledge, statutorily required.

[00:18:14] Speaker 02:
to receive public testimony or invite public testimony.

[00:18:18] Speaker 02:
They do it, and there are rules that both houses of the state legislature have adopted that define how it's done.

[00:18:26] Speaker 02:
And a lot of that, by the way, a compliment to Mr. Colden.

[00:18:30] Speaker 02:
I mean, everything you need to know about the facts of this case is in the complaint.

[00:18:35] Speaker 02:
It's all in there, and you can see exactly what happened.

[00:18:39] Speaker 02:
There are rules that address inviting public comment.

[00:18:43] Speaker 02:
In fact, public comment was invited in both sides.

[00:18:46] Speaker 02:
And all this was was a bit, I guess, of a practice standard.

[00:18:51] Speaker 02:
I'm justifying it now.

[00:18:52] Speaker 02:
And I kind of don't want to do that, because I don't think under TENI I should be required to justify it, but I can justify it, in that they were trying to keep a level of decorum where the meeting would explode

[00:19:06] Speaker 02:
and not be useful to the legislature.

[00:19:08] Speaker 04:
So how do we know that?

[00:19:11] Speaker 04:
That's not in the record, is it?

[00:19:12] Speaker 02:
Well, it's in the briefing.

[00:19:15] Speaker 02:
It's not in the record.

[00:19:16] Speaker 02:
What's in the record is what happened.

[00:19:19] Speaker 02:
And you can see what happened when people started dead naming and misgendering.

[00:19:22] Speaker 02:
Now, I don't want to get into a debate whether dead naming and misgendering should be allowed.

[00:19:28] Speaker 02:
Even if this were in the legislative committee, I would call that content as opposed to viewpoint discrimination.

[00:19:34] Speaker 02:
But that's a matter the district court didn't even address because they didn't have to.

[00:19:38] Speaker 02:
And I guess here's the primary point.

[00:19:41] Speaker 02:
If I say nothing else up here that I would want to emphasize.

[00:19:46] Speaker 02:
It doesn't matter in the context of absolute legislative immunity whether we think this was a reasonable rule

[00:19:57] Speaker 02:
or they should have done it this way rather than that way.

[00:20:01] Speaker 02:
The point of the Tenney case is that if it's within that legislative sphere, in the scope of legitimate legislative activity, it stops there.

[00:20:13] Speaker 02:
The inquiry stops.

[00:20:15] Speaker 02:
We're done.

[00:20:15] Speaker 02:
Nothing more.

[00:20:17] Speaker 00:
Council, the district court said that neither this court nor the Supreme Court though has

[00:20:22] Speaker 00:
reviewed whether the enforcement of decorum rules during a hearing is within the legislative sphere.

[00:20:29] Speaker 02:
What is your assessment of that?

[00:20:35] Speaker 02:
because we were in the context of the committee.

[00:20:39] Speaker 00:
Well, I get your argument for it.

[00:20:40] Speaker 00:
But do you agree with the district court, though?

[00:20:42] Speaker 00:
There's no authority that has reviewed the enforcement of decorum rules.

[00:20:46] Speaker 00:
Any other cases in this particular context?

[00:20:49] Speaker 02:
Right.

[00:20:50] Speaker 02:
That is correct, Your Honor.

[00:20:51] Speaker 02:
And I suppose one of these days this is coming.

[00:20:54] Speaker 02:
I will say this.

[00:20:55] Speaker 02:
I've looked.

[00:20:56] Speaker 02:
I am aware of no, for example, circuit court of appeals has decorum rules of that nature.

[00:21:01] Speaker 02:
There are US district courts, including this one,

[00:21:04] Speaker 02:
the one that we just came out of, that has such decorum rules.

[00:21:08] Speaker 02:
And practically a motion was filed, and we never got to a situation where we had to deal with that.

[00:21:14] Speaker 02:
And we're kind of moving into the area of judicial prerogatives there, where I don't want to go.

[00:21:20] Speaker 02:
So I mean, you've raised, I think, a very, very good question.

[00:21:23] Speaker 02:
But the point that I'm sort of, I guess, pounding unnecessarily is that Kenny says it doesn't matter.

[00:21:32] Speaker 02:
We can be as ugly and discriminatory as we want if we're within that legislative sphere.

[00:21:38] Speaker 04:
Well, let me ask you this, though, because not disagreeing with you that it seems to say that, but then we have Sable that seems to disagree with you at least insofar as it concerns official capacity claims.

[00:22:00] Speaker 02:
Well, let me respond to that.

[00:22:02] Speaker 02:
But I want to preface this with a statement that I am aware that a member of this panel was a member of the panel of Sable.

[00:22:09] Speaker 04:
It wasn't this one.

[00:22:10] Speaker 02:
And I'll stop there.

[00:22:14] Speaker 02:
But I am aware of that situation.

[00:22:17] Speaker 02:
Sable, a couple things.

[00:22:19] Speaker 02:
Sable was a damages action, number one.

[00:22:24] Speaker 02:
Number two.

[00:22:25] Speaker 04:
OK, so let's just stop there for a moment.

[00:22:28] Speaker 04:
So on a nominal damages claim, would you contest that they could pursue an official capacity action?

[00:22:36] Speaker 02:
Well, if it's all about damages and nothing else, they wouldn't be doing official capacity.

[00:22:41] Speaker 02:
Because I think what happened here is we've gotten confused with the 11th Amendment immunity issue, where you can't sue the state of Colorado, you sue individuals.

[00:22:51] Speaker 02:
And they have sued individual legislators trying

[00:22:53] Speaker 02:
And I understand trying to do that.

[00:22:58] Speaker 04:
Here's what strikes me about Sable, because I mean, Sable's the opinion that- I mean, you understand that some of the language seems to conflict with your position.

[00:23:05] Speaker 04:
Yes.

[00:23:05] Speaker 04:
OK, fair enough.

[00:23:06] Speaker 02:
But let me tell you how I'm reading that language.

[00:23:08] Speaker 02:
And that's why I prefaced it with a cautionary motion on what Sable meant.

[00:23:14] Speaker 02:
But Sable, it has the words that Your Honor is presenting to me.

[00:23:20] Speaker 02:
It then, within 10 words prior to making that statement and two or three lines later, directly and approvingly, not surprisingly, cites the seminal case from the United States Supreme Court, Supreme Court of Virginia versus Consumers Union, which unequivocally, clearly holds that legislative immunity applies to

[00:23:46] Speaker 02:
prospective relief claims, declaratory and injunctive.

[00:23:51] Speaker 02:
And I'm not used to reading opinions from the 10th Circuit that not only don't go where the Supreme Court has said to go, but then literally defy it.

[00:24:03] Speaker 02:
Here's what they said, but we're going to do something else.

[00:24:05] Speaker 02:
So I don't think Sable can or should be read that way.

[00:24:11] Speaker 02:
Consumer's union is very clear.

[00:24:13] Speaker 02:
It was a fascinating case.

[00:24:15] Speaker 02:
I mean, it was very clear in that all three sort of branches of government were at issue there.

[00:24:20] Speaker 02:
The Virginia Supreme Court legislated the rules of professional conduct.

[00:24:26] Speaker 02:
They were then enforced by the same body, which is an executive function.

[00:24:34] Speaker 02:
And they were adjudicated by the same body.

[00:24:37] Speaker 02:
So the judicial function was all folded into one

[00:24:40] Speaker 02:
And the Supreme Court was very clear that as to the administrative slash executive and judicial functions, there is no prospective application of legislative immunity.

[00:24:53] Speaker 02:
But with the legislative piece of it, the opinion is very clear, the absolute immunity applies, period.

[00:25:02] Speaker 02:
And again, it's not because of who's right or wrong or anything of that nature.

[00:25:09] Speaker 02:
not burden legislators with having to deal with responding to these questions.

[00:25:15] Speaker 04:
Well, let me ask you, since we're talking about Consumers Union, as I read it, it appeared to me to say that there was legislative immunity for creating rules, but not legislative immunity for enforcing them.

[00:25:32] Speaker 04:
What do you think about that?

[00:25:35] Speaker 02:
There's legislative immunity for creating rules, but the immunity extends not just to the votes to adopt or not adopt a particular piece of legislation.

[00:25:46] Speaker 02:
It applies to everything within the sphere of legitimate legislative activity, which I think we cited several times in our brief numerous

[00:25:56] Speaker 02:
court opinions would apply, I mean, to the conduct of a committee hearing and taking of testimony and so forth.

[00:26:05] Speaker 02:
Even in a situation like Tenney where it doesn't appear that real legislation was actually pending.

[00:26:12] Speaker 02:
Here, you know, there very clearly was.

[00:26:15] Speaker 02:
Now, the Camp Plain case was mentioned.

[00:26:17] Speaker 02:
I mean, it's another very good example in that what happens in Camp Plain, there was a legislative function and

[00:26:25] Speaker 02:
The silencing of the particularly disruptive person in that case extended beyond addressing his activity in the legislative context.

[00:26:37] Speaker 02:
Basically, you're barred from attending any city council meetings at all, henceforth.

[00:26:42] Speaker 02:
You're out here.

[00:26:43] Speaker 02:
City councils, unlike the Colorado General Assembly and unlike its legislatures, do a lot of

[00:26:49] Speaker 02:
non-legislative things, and my time is just what we'll prove.

[00:26:53] Speaker 04:
Well, let's talk for a little bit longer, just in case someone has some questions, which I have one more.

[00:27:00] Speaker 04:
And this is along the lines of your mootness arguments that have been made.

[00:27:05] Speaker 04:
Has there been a representation by the Colorado General Assembly that they're not going to enforce rules against dead naming or the use of preferred pronouns?

[00:27:16] Speaker 04:
No, we okay, so those those are still they're still in effect As far as we know they will be enforced At least nobody's disavowed them No, nobody is nobody is disavowed what the district court did in that case is

[00:27:33] Speaker 04:
No, this has nothing to do with what the district court did.

[00:27:38] Speaker 04:
I'm just asking you a question, because I don't want to hear later that, oh, well, we're not going to enforce them.

[00:27:45] Speaker 04:
No.

[00:27:47] Speaker 02:
They have certainly reserved the right, and I think they well may.

[00:27:52] Speaker 02:
Now, it's got to be within a context that makes sense.

[00:27:57] Speaker 02:
Actually, I would not even do that.

[00:27:59] Speaker 02:
I'm going to back off what I was about to say, because I'm going to go back to Tenney.

[00:28:03] Speaker 02:
they could issue a rule that we may look at and say, it has nothing to do with anything.

[00:28:10] Speaker 04:
I'm not criticizing them substantively.

[00:28:12] Speaker 04:
I'm just trying to figure out if they've said something that might end the case.

[00:28:15] Speaker 02:
No, no.

[00:28:16] Speaker 02:
But I think they could do what you're suggesting, and it's not our prerogative to weigh in.

[00:28:23] Speaker 02:
I mean, Tenney, again, that

[00:28:25] Speaker 02:
arguably wasn't even about legislation.

[00:28:29] Speaker 02:
I mean, Brando was saying, I'm not in here because of any legislation.

[00:28:32] Speaker 02:
I'm in here because I was on the wrong side of a governor.

[00:28:35] Speaker 04:
Yeah, no.

[00:28:36] Speaker 04:
My whole point is everybody saying that the harm is speculative.

[00:28:41] Speaker 04:
We don't even know if they're going to have any more bills.

[00:28:43] Speaker 04:
We don't even know if people are going to show up and deadname someone.

[00:28:47] Speaker 04:
We don't even know if these rules are going to be in place.

[00:28:49] Speaker 02:
And what the district court was saying there, too, is, I mean, what do you want me to enjoy?

[00:28:55] Speaker 02:
I think district court judge is correct on this.

[00:28:58] Speaker 02:
You're asking me to give an advisory opinion in a context that I can't conceivably imagine.

[00:29:04] Speaker 04:
Well, as we sit here today, though, we know the rules are in place.

[00:29:07] Speaker 04:
We know a legislative session has passed in between where the same types of cases have come up.

[00:29:14] Speaker 04:
at least broadly, and that nobody's disavowed the enforcement of the rules.

[00:29:19] Speaker 04:
I mean, so it's not all entirely speculative, is my point.

[00:29:24] Speaker 02:
No.

[00:29:24] Speaker 02:
But these aren't long-time adopted rules either.

[00:29:28] Speaker 02:
I mean, they were asked in this case, would everybody please honor these, what we view as rules of courtesy, so we can have a productive hearing here.

[00:29:36] Speaker 02:
Now, let me another case.

[00:29:38] Speaker 04:
Well, they were coercively enforced.

[00:29:40] Speaker 04:
The people were cut off.

[00:29:44] Speaker 02:
Yeah.

[00:29:44] Speaker 02:
Well, now that's a whole different topic.

[00:29:47] Speaker 04:
Oh, so they weren't.

[00:29:48] Speaker 04:
Your position is that they were allowed to keep speaking.

[00:29:53] Speaker 04:
They were.

[00:29:55] Speaker 02:
One of them left.

[00:29:57] Speaker 02:
And this is all on the record.

[00:29:59] Speaker 02:
The other one was repeatedly asked not to.

[00:30:04] Speaker 02:
And the person said, I can't.

[00:30:06] Speaker 02:
I'm going to do it.

[00:30:07] Speaker 02:
And eventually, there was a ruckus in the room.

[00:30:10] Speaker 02:
You could hear it in the background of the recording that was made.

[00:30:13] Speaker 02:
Not by us, but by them.

[00:30:15] Speaker 02:
You can hear it in the background.

[00:30:17] Speaker 02:
And that's what happened.

[00:30:18] Speaker 02:
And eventually, apparently, a sergeant of arms had to ask one of them to leave because whatever behavior was going on, it's not in the record.

[00:30:26] Speaker 04:
Fair enough.

[00:30:29] Speaker 01:
Anything?

[00:30:30] Speaker 01:
As long as we've opened up everything.

[00:30:32] Speaker 04:
OK, go ahead.

[00:30:35] Speaker 01:
I want to escape now.

[00:30:36] Speaker 01:
Who's going to win the next Bronco game?

[00:30:38] Speaker 01:
I guess we've opened it up, maybe not quite that broadly.

[00:30:44] Speaker 01:
I'm just befuddled.

[00:30:48] Speaker 01:
The easy approach is if this is really not a case of controversy right now.

[00:30:56] Speaker 01:
I guess they've got to come up with new rules every time a legislative hearing comes forward.

[00:31:02] Speaker 01:
They can always suspend those rules in every single case, no matter what the rules are.

[00:31:08] Speaker 01:
Why isn't this no longer a case of controversy because it's passed?

[00:31:14] Speaker 02:
So putting aside the detainee constraints, because I mean, Your Honor, that's what you're asking me to do, because I guess my first response to your question is we shouldn't have to answer.

[00:31:26] Speaker 04:
Well, I mean, mootness is a critical question in every case, even before we answer Tenney.

[00:31:34] Speaker 02:
Well, yes.

[00:31:35] Speaker 02:
But I mean, I think as long as we're within that sphere of legitimate legislative activity, I think the legislature is given the deference to do what they want.

[00:31:45] Speaker 02:
And that's the point of Tenney and the cases that will follow it.

[00:31:49] Speaker 02:
Now, I guess if I understand, the question is, can this court suggest

[00:31:56] Speaker 02:
some limitations and some better way to make the appellants in this case happier in terms of what the rules would look like in the future.

[00:32:07] Speaker 02:
I suppose we could engage in that exercise, but that is precisely the exercise I think that the Supreme Court continues that we should not do.

[00:32:14] Speaker 04:
Let me stop here.

[00:32:15] Speaker 04:
I don't think that was the question.

[00:32:16] Speaker 04:
I think the question by Judge Ebel was that rules change all the time.

[00:32:21] Speaker 04:
We don't know what the rules are going to be when you convene the next hearing, and so we don't have a case.

[00:32:25] Speaker 01:
That's exactly right.

[00:32:27] Speaker 04:
It's a mootness question.

[00:32:29] Speaker 01:
My lawyer articulated it.

[00:32:32] Speaker 02:
Just not to go down that road.

[00:32:34] Speaker 02:
He's doing a good job.

[00:32:36] Speaker 02:
I don't think this court should go there under any of those circumstances.

[00:32:41] Speaker 01:
You don't think the court should go with the cop-out that my esteemed colleague is advocating?

[00:32:47] Speaker 01:
Or you don't think we ought to go by cop-out?

[00:32:50] Speaker 01:
I mean, it's not a cop-out because it's a jurisdictional question.

[00:32:55] Speaker 01:
You don't think we ought to go that route, which I first advocated, so I apologize for that word.

[00:32:59] Speaker 01:
It's not a cop-out at all.

[00:33:02] Speaker 01:
Or you think that there's no merit to it.

[00:33:05] Speaker 02:
Well, I think there's no merit to it.

[00:33:07] Speaker 02:
But I don't think we should weigh into that, I guess is my point.

[00:33:18] Speaker 02:
What rules the legislature and the individual legislators

[00:33:24] Speaker 02:
want to apply to their committee hearings addressing pending legislation, not world affairs or how are we doing in Colorado, but pending legislation, that's up to them.

[00:33:38] Speaker 02:
They can do whatever they want to do.

[00:33:42] Speaker 01:
That's the absolute immunity.

[00:33:55] Speaker 01:
Then Sable was a 1983 claim against a municipality.

[00:34:06] Speaker 01:
Who was the defendant in Sable?

[00:34:10] Speaker 02:
It was against the city council members.

[00:34:16] Speaker 01:
The members were acting in their official capacity.

[00:34:19] Speaker 02:
They were acting, yes.

[00:34:22] Speaker 01:
the committee basically then.

[00:34:24] Speaker 01:
So how, just tell me exactly what the context of this case was.

[00:34:33] Speaker 02:
Our present case was exclusively committee hearings.

[00:34:42] Speaker 01:
But it was assumed against these individual committee people.

[00:34:49] Speaker 01:
Right.

[00:34:50] Speaker 01:
acting in their official capacity, seeking injunctive relief.

[00:34:56] Speaker 02:
I think the reason that that was done, why these individual legislators was named, and there's some discussion of this lower court opinion below, was a confusion that I can step into on a regular basis between absolute legislative immunity, the Tenney v. Brandhove world versus 11th Amendment immunity,

[00:35:17] Speaker 02:
where you can't sue the state.

[00:35:19] Speaker 02:
You can't sue the General Assembly.

[00:35:21] Speaker 02:
You have to name individuals under the ex parte young fiction.

[00:35:25] Speaker 02:
I think that is, I'll defer to Mr. Cold on that, but I think that is what was going on here.

[00:35:34] Speaker 02:
And I think the district court pretty much said that's what's going on here.

[00:35:38] Speaker 02:
We are not challenging 11th Amendment jurisdiction.

[00:35:42] Speaker 02:
We're saying the common law

[00:35:46] Speaker 02:
absolute legislative immunity.

[00:35:50] Speaker 01:
So you are specifically not asserting 11th Amendment.

[00:35:55] Speaker 02:
Specifically, we have not asserted 11th Amendment immunity.

[00:35:58] Speaker 02:
We have asserted absolute legislative immunity, which is not 11th Amendment immunity.

[00:36:05] Speaker 04:
Let's see if Judge Federico has a question, and then let's try to wrap up.

[00:36:08] Speaker 00:
I'll save it all.

[00:36:11] Speaker 04:
Thank you, counsel.

[00:36:11] Speaker 04:
Your time has expired.

[00:36:13] Speaker 04:
Let's add about three minutes to the appellant's time.

[00:36:19] Speaker 00:
Counsel, can I ask you to start with mootness, please?

[00:36:22] Speaker 03:
Sure, Your Honor.

[00:36:23] Speaker 00:
I'm sure it was on your list.

[00:36:24] Speaker 03:
Yeah.

[00:36:24] Speaker 03:
Look, this case is not moot.

[00:36:26] Speaker 03:
They basically said, we're going to enforce misgendering and dead naming rules again if it comes up.

[00:36:32] Speaker 03:
And they want to.

[00:36:33] Speaker 03:
This is very important to the Democratic Party, which controls the Colorado legislature, and it's very important to a number of their constituents.

[00:36:43] Speaker 03:
They are going to enforce those rules.

[00:36:47] Speaker 03:
The decorum rules are in place, and one of our challenges

[00:36:51] Speaker 03:
an official capacity challenge was that the rules are vague and they lack sufficient objective guidelines to guide enforcement discretion under Manskey.

[00:37:04] Speaker 03:
So the rules aren't, this issue is not moot for that reason also.

[00:37:09] Speaker 03:
They've not disavowed it.

[00:37:10] Speaker 03:
They still have decorum rules that are very vague.

[00:37:13] Speaker 03:
And we have a clear enforcement track record of them enforcing their misgendering Ban against my clients including going so far as erasing Christina Doki's Comments from the public record as alleged not proven right well as alleged, but we're entitled to you are yes, okay, so if I do want to kind of pivot to

[00:37:44] Speaker 03:
Sable, because I think Sable is very important, even if you disagree with us on the issue of that this is not a legislative act, we still win under Sable and under Supreme Court precedent.

[00:38:02] Speaker 03:
In Sable, this court had held legislative immunity applies only to legislators sued in their individual capacities, not to the legislative body itself.

[00:38:15] Speaker 03:
Indeed, in Sable, legislative immunity was applied only to the damages claims brought against the city council members in their individual capacities.

[00:38:24] Speaker 03:
Section 1983 claim against the city of Nichols Hills was remanded for further proceedings because the city was not immune from suit.

[00:38:34] Speaker 03:
This is very important.

[00:38:36] Speaker 03:
The city did not enjoin legislative immunity, only the city council members did for the same reason that neither the state of Colorado

[00:38:44] Speaker 03:
nor its General Assembly enjoy legislative immunity.

[00:38:48] Speaker 03:
This understanding of legislative immunity was binding on the district court, which mistakenly relied on out-of-circuit authority.

[00:38:57] Speaker 03:
A few points bear further discussion here.

[00:39:00] Speaker 03:
The district court was correct in concluding that sovereign immunity does not apply here.

[00:39:06] Speaker 03:
But it erred when it treated the official capacity claims as essentially individual capacity claims.

[00:39:14] Speaker 03:
a particular sentence in the opinion that illustrates this mistake.

[00:39:20] Speaker 03:
It's at JA-238 of the district court's opinion.

[00:39:24] Speaker 03:
Quote, accordingly, because plaintiffs' official capacity claims are really claims against the officials and not the state, it follows that they may not assert state sovereign immunity, but may assert the personal defense of legislative immunity.

[00:39:39] Speaker 03:
End quote.

[00:39:41] Speaker 03:
This district court got it exactly wrong here and inverted it.

[00:39:45] Speaker 03:
Of course, the official capacity claims are claims against the state.

[00:39:48] Speaker 03:
They are not claims against the individuals.

[00:39:51] Speaker 03:
That is just flat wrong.

[00:39:54] Speaker 03:
It is a misstatement of law.

[00:39:55] Speaker 03:
It conflicts with binding circuit and Supreme Court authority.

[00:40:00] Speaker 03:
Official capacity claims are claims against the state.

[00:40:04] Speaker 03:
And the only defenses that can be asserted are those of the state, not a personal defense.

[00:40:11] Speaker 03:
So we would ask this court to find in our favor, if not on the issue that this is an enforcement function, although we think it is, at the very least, allow our official capacity claims to go forward below.

[00:40:29] Speaker 03:
Fashioning relief here would not be hard.

[00:40:33] Speaker 03:
It's like any or many as applied challenges.

[00:40:38] Speaker 03:
These kind of cases are my bread and butter.

[00:40:41] Speaker 03:
All we need is injunctive or declaratory relief from the district court saying, don't ban misgendering or dead naming during the public comment portion of your committee meetings.

[00:40:56] Speaker 03:
And that is official capacity relief, equitable relief, that can be granted by the district court.

[00:41:03] Speaker 03:
It would protect my client's rights to speak.

[00:41:06] Speaker 03:
on rights equal to any other citizen of Colorado that wants to come in and give public comment about pending legislation.

[00:41:14] Speaker 03:
If there are no further comments or questions from the panel, we'll sit down at this time.

[00:41:20] Speaker 04:
Thank you, counsel.

[00:41:21] Speaker 04:
Thank you.

[00:41:22] Speaker 04:
Thanks to both counsel on this one.

[00:41:24] Speaker 04:
Sorry to keep you past your time, but we had a lot of interesting things that needed to be discussed.

[00:41:32] Speaker 04:
So your case is submitted and counsel are excused.