[00:00:00] Speaker 03:
The last case is Drexler versus Weiser, 25-11-73.

[00:00:11] Speaker 02:
May it please the court, Michael Francisco on behalf of Appellant Regina Drexler.

[00:00:16] Speaker 02:
The First Amendment undoubtedly protects speech that is published about non-threatening issues, even if those issues are embarrassing.

[00:00:26] Speaker 02:
Unfortunately, Colorado's laws make such speech subject to punishment, and any Coloradan could bring a challenge on a pre-enforcement basis to such laws.

[00:00:38] Speaker 02:
Ms.

[00:00:38] Speaker 02:
Drexler is such a Coloradan, and in addition, she has a clearly objective and reasonable basis for fearing additional punishment for engaging in such speech based on the extensive record of what happened to her in Colorado.

[00:00:55] Speaker 02:
This case needs to be remanded so that the issues can be decided on the merit for these claims that had been brought.

[00:01:02] Speaker 02:
And the district court, with all due respect, has made a couple fundamental errors.

[00:01:07] Speaker 02:
The first error, Your Honor, is that the district court seemed to view this case as a third bite at the apple, noting that the roads had already been driven in state court.

[00:01:18] Speaker 02:
However, what's left now is a prospective challenge, meaning

[00:01:24] Speaker 02:
What has happened in the past is not being collaterally attacked.

[00:01:28] Speaker 02:
There is no more Rooker-Feldman issue.

[00:01:31] Speaker 02:
This is a garden variety, if I will, pre-enforcement challenge that's facial based on the First Amendment.

[00:01:39] Speaker 02:
And the district court seemed to fail to apply that even handily through the analysis.

[00:01:44] Speaker 02:
And related to that, the district court failed to account for the breadth of the claim here.

[00:01:50] Speaker 02:
The claim is not just on behalf of Ms.

[00:01:52] Speaker 02:
Drexler, and it's not limited

[00:01:54] Speaker 02:
to just publications about the relationship with RB.

[00:01:58] Speaker 02:
It is on behalf of all Coloradans.

[00:02:01] Speaker 02:
These are claims for facial declaratory relief.

[00:02:04] Speaker 02:
And it is about a desire to publish about other relationships, not just the relationship at issue.

[00:02:11] Speaker 02:
And for that reason, the district court's analysis simply missed the mark on what is happening here.

[00:02:18] Speaker 02:
Second, the district court really failed to appreciate that.

[00:02:22] Speaker 02:
meant to signpost earlier that it is about claims that reach others, not just claims between Ms.

[00:02:28] Speaker 02:
Drexler and the individual RB.

[00:02:31] Speaker 02:
So we think it was air to dismiss it.

[00:02:34] Speaker 02:
And as this panel contemplated in the prior order and judgment, the claims need to be decided on the merits at this time.

[00:02:45] Speaker 02:
I welcome this panel's questions.

[00:02:48] Speaker 02:
Otherwise, I will continue to

[00:02:51] Speaker 02:
argue that under the 11th amendment analysis in particular, the district court simply failed to follow this court's many precedents applying the exception to Younger for federal claims against officers, state officials when they're in their official capacity and they have some enforcement connection.

[00:03:13] Speaker 02:
And here, the attorney general quite clearly has an enforcement connection.

[00:03:17] Speaker 02:
He has an express statutory duty under the protective order statutes.

[00:03:21] Speaker 03:
And as a peace officer?

[00:03:24] Speaker 02:
It's both, yes, Your Honor.

[00:03:26] Speaker 02:
As a peace officer, there's an express statutory duty for the attorney general.

[00:03:31] Speaker 02:
And we think that that distinguishes this from the instances in which the courts tend to say that the attorney general can't be named as a representative of the state as a general matter or for the general enforcement of state laws.

[00:03:42] Speaker 02:
specific statute that gives that authority to peace offers, including the attorney general.

[00:03:50] Speaker 03:
I wonder if it was a new trainee, he or she just passes the academy, it's their first day, and they get the certificate and they say,

[00:04:02] Speaker 03:
Congratulations, you are now a peace officer of the United States.

[00:04:06] Speaker 03:
So let's just say that's me, my back crack.

[00:04:08] Speaker 03:
And so then I get sued in my official capacity as a peace officer who worked with enforcing the Emotional Distress Stalking Statute, the violation of a protective order.

[00:04:25] Speaker 03:
Can I be sued simply because I am

[00:04:29] Speaker 03:
a peace officer just like the Attorney General?

[00:04:34] Speaker 02:
We think you could, Your Honor.

[00:04:36] Speaker 02:
That, of course, would be perhaps what the outer limits of a pure peace officer connection would be.

[00:04:41] Speaker 02:
But here, as we outlined in the briefs, there are additional connections between the Attorney General and the protection order statute, such as the conduct that occurred in the

[00:04:50] Speaker 02:
the Castleman case at the Supreme Court, and the fact that he can be specifically appointed to act as a DA, if you will, as a prosecutor.

[00:04:58] Speaker 03:
But that did not happen in this case, right?

[00:05:01] Speaker 02:
No.

[00:05:02] Speaker 03:
And the only two instances in that scenario were when there was a vacancy in the DA's office.

[00:05:09] Speaker 03:
Obviously, you didn't have two DAs in the same county, right?

[00:05:15] Speaker 02:
Yes, Your Honor.

[00:05:16] Speaker 02:
But go ahead.

[00:05:21] Speaker 02:
The 11th Amendment immunity exceptions don't require the state prosecutor to have exclusive authority.

[00:05:30] Speaker 03:
But they do require a particular duty to enforce, doesn't it?

[00:05:36] Speaker 02:
Yes.

[00:05:36] Speaker 02:
We think the statute clearly satisfies the particular duty as to the attorney general.

[00:05:41] Speaker 02:
Number one.

[00:05:42] Speaker 02:
Number two, I would point out that the DA doesn't even raise 11th Amendment immunity as to the criminal statutes here.

[00:05:51] Speaker 03:
I'm not talking about the DA, I'm talking about the Attorney General.

[00:05:56] Speaker 03:
But the Attorney General, you've identified two instances, two scenarios in which the Attorney General has a duty to enforce.

[00:06:04] Speaker 03:
One is they have the same status as this new recruit, Bob Baccarat, a new peace officer.

[00:06:12] Speaker 03:
And the Attorney General has that equivalent duty.

[00:06:17] Speaker 03:
I don't know that I would have a particular duty to enforce anything unlike any other peace officer in the state of Colorado.

[00:06:24] Speaker 03:
I don't know the Attorney General would, if we're only talking about classification as a peace officer.

[00:06:29] Speaker 03:
And then the second scenario is a good argument, but it seems academic, that if there's a vacancy in the DA's office,

[00:06:36] Speaker 03:
the Attorney General can have a duty to enforce, not because they're the Attorney General, but because they're interim DA, and that doesn't happen.

[00:06:48] Speaker 03:
So I'm wondering where the particular duty to enforce falls on the Attorney General.

[00:06:56] Speaker 02:
Well, I think that particular duty comes from the statute we've identified, 1314.107.

[00:07:01] Speaker 02:
You have to use every reasonable means to enforce it.

[00:07:05] Speaker 02:
if you're a peace officer.

[00:07:07] Speaker 02:
And with respect, I think the particular connection here, just looking at the Attorney General, is certainly greater than the connection the Attorney General had in Kitchen versus Herbert when this course easily adjudicated those claims without the 11th Amendment immunity applying.

[00:07:22] Speaker 02:
And it's also greater than what you would find in the Consumer Data Industry Association case, which talks about how it doesn't need to be exclusive.

[00:07:31] Speaker 02:
We recognize there are multiple peace officers

[00:07:34] Speaker 02:
And of course, you can name multiple defendants as we have done, as many defendants do, for the 11th Amendment purposes.

[00:07:40] Speaker 02:
I think, practically speaking, the attorney general is the most common sense defendant to be named in a case like this.

[00:07:47] Speaker 02:
For similar reasons, a different statutory scheme, but structurally similar, the attorney general is the lead defendant, or a defendant certainly, in the 303 creative

[00:07:57] Speaker 02:
Masterpiece, cake shop, child's line of cases, along with other state actors.

[00:08:02] Speaker 00:
How is this case different than free speech coalition where we said the attorney general's general law enforcement authority was just absolutely not enough?

[00:08:14] Speaker 00:
How is it different?

[00:08:15] Speaker 02:
Judge Moritz, I think that the statute we just talked about is specific to protection orders, and that was entirely lacking in free speech versus Anderson.

[00:08:24] Speaker 02:
And we don't contest.

[00:08:26] Speaker 02:
the well-recognized rule that an attorney general can't have a general duty to defend the law for 11th Amendment purposes.

[00:08:34] Speaker 00:
But these are two specific... That was the same issue we were dealing with in terms of, is there anything more here than the attorney general's general duty to defend the law?

[00:08:43] Speaker 00:
Correct.

[00:08:44] Speaker 00:
I don't see any difference between that case and here.

[00:08:46] Speaker 00:
You're relying on the general duty to defend as a peace officer.

[00:08:50] Speaker 00:
Well, no.

[00:08:51] Speaker 02:
It's not a general peace officer duty.

[00:08:53] Speaker 02:
It is a duty specific to the protection order statutes, that peace officers have a duty under 13, 14, 107 to enforce these particular laws.

[00:09:05] Speaker 02:
Now, there are lots of peace officers, but that statute, and that's entirely lacking in free speech versus Anderson, this is the definition of a specific statute.

[00:09:16] Speaker 02:
It applies to the universe of protection orders.

[00:09:19] Speaker 00:
So pretty much any criminal statute in Colorado, which I assume peace officers can enforce, any criminal statute, that they're not going to be subject to 11th Amendment immunity because they have a general duty to enforce, or you're calling that a specific duty.

[00:09:39] Speaker 00:
Every single criminal statute in every piece, anybody designated as a peace officer of any kind, somebody, you know, working in the forest or somebody, you know, everybody, they're a peace officer.

[00:09:51] Speaker 02:
No, I think what we're saying is you would have to have some connection to that particular statute.

[00:09:56] Speaker 02:
I'm not familiar with the general freestanding.

[00:09:57] Speaker 00:
Well, I don't understand the idea that this is a special relationship then because a peace officer is an extremely broad category under Colorado law.

[00:10:06] Speaker 00:
And I presume peace officers can enforce most of the criminal statutes.

[00:10:10] Speaker 00:
Maybe I'm wrong about that.

[00:10:11] Speaker 00:
I don't know.

[00:10:12] Speaker 02:
I'm not certain about that either.

[00:10:14] Speaker 00:
I'm just saying you're advocating for a very broad... No.

[00:10:19] Speaker 02:
If peace officers can enforce criminal statutes in a specific way, they'd frankly be no different than DAs.

[00:10:25] Speaker 02:
And DAs don't even try to raise 11th Amendment immunity, even though there are many DAs and many criminal statutes.

[00:10:31] Speaker 00:
But shouldn't they be different than DAs who have a specific connection?

[00:10:36] Speaker 02:
No, I think the specific connection, they're obviously different in practical ways from a DA.

[00:10:41] Speaker 02:
But the 11th Amendment is concerned with some connection, not an exclusive connection.

[00:10:47] Speaker 02:
And you don't have to name only one person with a connection to the law, which is why we have multiple defendants here.

[00:10:56] Speaker 02:
And so I think if you don't think that the attorney general

[00:11:01] Speaker 02:
is the most appropriate defendant, you would have to look at the district attorney, certainly, as to the criminal statute where he doesn't even raise 11th Amendment immunity.

[00:11:19] Speaker 02:
Your Honor, I'd like to take a step back and consider the nature of the speech restriction that Colorado's laws are imposing here because we think

[00:11:29] Speaker 02:
it's frankly quite substantial.

[00:11:32] Speaker 02:
What you have are a series of laws that have been used against Ms.

[00:11:37] Speaker 02:
Drexler to punish literary speech about a relationship that is non-threatening.

[00:11:44] Speaker 02:
That is core First Amendment speech, and what Colorado has done, which is what we think violates the First Amendment, is simply label that speech, non-threatening speech, about a relationship that is indirect

[00:11:59] Speaker 02:
not even made directly to a person as being harassment and therefore subject to severe restriction.

[00:12:07] Speaker 02:
We're talking about a permanent protection order with criminal consequences.

[00:12:11] Speaker 02:
It is a rare case in which you have a civil order that has automatic criminal penalty.

[00:12:17] Speaker 03:
For speech?

[00:12:18] Speaker 02:
Yes.

[00:12:19] Speaker 03:
But isn't that directly contradictory to the prior order and judgment?

[00:12:26] Speaker 03:
As long as you disagree with the prior panel opinion, certainly we're fallible, but in the decision on collateral review by the state judge, but we have not only a prior panel opinion saying that

[00:12:51] Speaker 03:
that Mr. Exler cannot be punished because the protective order may, even if you credit the impetus for the protective order itself, the prior opinion said that, as I recall, that the protective order itself does not regulate speech.

[00:13:07] Speaker 03:
And that was, in fact, not out of a vacuum, but you had a state judge that was interpreting on collateral review the protective order itself that said exactly the same thing.

[00:13:19] Speaker 03:
How do you deal with that?

[00:13:20] Speaker 02:
I'll try to be brief.

[00:13:22] Speaker 02:
I'd like to reserve a little bit of time for rebuttal.

[00:13:25] Speaker 02:
This circuit's prior order and judgment is in a habeas context in which the question was different than the question here.

[00:13:34] Speaker 02:
The question was whether the orders, in this circuit's view, whether it restrained somebody's movement by analogy so much that it created a habeas violation.

[00:13:44] Speaker 02:
Here, there is a

[00:13:45] Speaker 02:
broader and different standard that applies to pre-enforcement chill of First Amendment activity.

[00:13:51] Speaker 02:
So you cannot disregard the court's statements, their explanation of their orders, which in 2015 and in 2018 very clearly indicate that they're restricting Ms.

[00:14:04] Speaker 02:
Drexler's ability to publish speech about RB.

[00:14:07] Speaker 02:
Now, a third district court decision in state court about a state collateral attack dismissed that we think it was erroneous by saying that it only restricted contact.

[00:14:18] Speaker 02:
That's wordplay in the sense that contact was defined to include speech that is a published literary essay that's indirect.

[00:14:27] Speaker 02:
And so it was, I don't think the issue that was before this court before, and in any event, that state court decision's not binding.

[00:14:35] Speaker 02:
So if she goes back and asks for dismissal of the protection order, she can't point to that decision that this court did in the county court and say that you have to find that this doesn't restrict speech because it's completely not binding on the county courts.

[00:14:50] Speaker 02:
And there's additional reasons in the brief, but we think it's particularly strong that that doesn't defeat the broader category of chill for the First Amendment.

[00:15:00] Speaker 04:
So before you surrender the podium, so when the prior panel

[00:15:05] Speaker 04:
I considered the earlier version of this case and said that the protective order has to be evaluated based on the terms of the order, and the terms themselves don't restrict Ms.

[00:15:15] Speaker 04:
Drexler's future writings.

[00:15:17] Speaker 04:
That's what?

[00:15:18] Speaker 04:
Is that dicta, or is it just wrong?

[00:15:23] Speaker 02:
First of all, it's not the same issue because habeas is talking about her restraints on movement, where the order itself, arguably you could limit it to just the order.

[00:15:32] Speaker 02:
But when you're talking about First Amendment chill, this court has been very clear that in Bantam books, there are, if I could remember the quote.

[00:15:42] Speaker 02:
So it's both incorrect and irrelevant.

[00:15:45] Speaker 02:
I would say, first of all, it's irrelevant and that's a different legal issue.

[00:15:49] Speaker 02:
But we do disagree with it as a matter of interpreting what would happen in state court.

[00:15:54] Speaker 02:
But if you really step back, there's 200,000 reasons why Ms.

[00:15:59] Speaker 02:
Drexler

[00:16:00] Speaker 02:
still has chill.

[00:16:03] Speaker 02:
She's been fined $200,000 for engaging in petitioning activity to try to overturn these protection orders that limit her speech.

[00:16:11] Speaker 02:
So she's clearly subjectively and for reasonable basis chilled from going back a third time without a federal court declaring the First Amendment rights at issue here.

[00:16:24] Speaker 02:
Thank you.

[00:16:29] Speaker 05:
Good afternoon, and may it please the Court.

[00:16:31] Speaker 05:
My name is Joseph Michaels, and with this Court's permission, I'll speak for about eight to nine minutes on behalf of the state defendants before I turn it over to my colleagues on the table.

[00:16:40] Speaker 04:
We wish you luck with that.

[00:16:41] Speaker 05:
Thank you.

[00:16:42] Speaker 05:
I appreciate that.

[00:16:44] Speaker 05:
We're here today about a protection order that does not even concern, let alone prohibit, the appellant's actions that she wishes to engage in on a personal and on a First Amendment basis.

[00:16:55] Speaker 05:
As this Court just discussed with my friend on the other side, the protection order

[00:16:59] Speaker 05:
does not restrict or even prohibit her ability to write, publish, or perform.

[00:17:06] Speaker 05:
My colleagues want to make this about a First Amendment issue, but before they do that, the state officials, the attorney general, the state court administrator, and the state judges, and the county judges for that matter, are immune from suit under the 11th Amendment as arms of the state.

[00:17:20] Speaker 05:
So before she could even get there, she has to pierce that sovereign immunity and establish standing.

[00:17:26] Speaker 05:
The district court here rightly rejected appellant's claims and dismissed the complaint.

[00:17:31] Speaker 05:
And this court should affirm on three different grounds.

[00:17:33] Speaker 05:
One, the state defendants all have sovereign immunity.

[00:17:36] Speaker 05:
Two, the ex parte young exception to sovereign immunity doesn't apply specifically because none of the state defendants have a particular enforcement authority or a demonstrated willingness to do so.

[00:17:49] Speaker 05:
And third, particularly with the judges,

[00:17:52] Speaker 05:
They are not adverse parties under the 11th Amendment and under Ex parte Young and more recently Whole Women's Health versus Jackson, which is cited in the briefs.

[00:18:03] Speaker 05:
Now, I do want to very briefly touch on this panel's, this court's last opinion from this case that talks about the protection order.

[00:18:12] Speaker 05:
And it talked about how, as Judge Shelby pointed out, you look at the terms of the protection order and the terms of the protection order are conduct-based.

[00:18:21] Speaker 05:
do not go within a certain number of feet of the protected party's work, the protected party's home, and the protected party's children.

[00:18:29] Speaker 05:
Nothing about that is First Amendment based.

[00:18:32] Speaker 05:
And nothing in the protection order, as this court recognized previously, prohibits the appellant from writing or publishing.

[00:18:40] Speaker 05:
Under the 11th Amendment, state officials sued in their official capacities are immune from suit as arms of the state.

[00:18:47] Speaker 05:
And that applies to judges equally to state officials.

[00:18:50] Speaker 05:
A plaintiff, of course, can seek prospective relief against a state official for an ongoing constitutional violation.

[00:18:56] Speaker 05:
But to do so, she must establish a particularized enforcement authority of that state official and a demonstrated willingness to do so.

[00:19:04] Speaker 05:
And the reason for that is it harkens back to the standing redressability prong, which is just simply not met if a plaintiff seeks relief against a defendant with no power to enforce a challenge statute.

[00:19:14] Speaker 05:
And here, the attorney general, the state court administrator, and the judges

[00:19:19] Speaker 05:
don't have any particularized enforcement authority for any of the challenge statutes.

[00:19:25] Speaker 00:
Why isn't the allegation that a state attorney general is a peace officer and peace officers are specifically permitted to enforce the criminal, this particular statute, specifically, why isn't that different than, for instance, in Free State Coalition, which is our

[00:19:43] Speaker 00:
a recent case on this issue where we had a private cause of action against private entities, porn sites basically, that were needing to get ID.

[00:19:56] Speaker 00:
And if they didn't get ID, you'd have a private cause of action.

[00:19:59] Speaker 00:
That's not a criminal statute where you have a specific essentially delegation to the peace office just to enforce it.

[00:20:08] Speaker 00:
Why isn't this different than that?

[00:20:11] Speaker 05:
Thank you for the question, Your Honor.

[00:20:12] Speaker 05:
In Free Speech Coalition, the Department and the Commission oversaw the program for age verification, but they didn't have a specific enforcement authority.

[00:20:21] Speaker 05:
The same is true here with the Attorney General.

[00:20:23] Speaker 00:
And it was a private cause of action that the statute set up.

[00:20:27] Speaker 05:
That's right.

[00:20:29] Speaker 00:
Totally different than what we got here.

[00:20:31] Speaker 05:
Here it's a little bit different in terms of structure, but not in terms of the particular enforcement authority.

[00:20:36] Speaker 05:
Here the Attorney General

[00:20:37] Speaker 05:
does not have the authority to direct acts of others or even have a general enforcement authority, nothing more than a general enforcement authority and a statutory obligation to provide opinions to officers and commissioners generally.

[00:20:49] Speaker 05:
And to take a step back further, yes, there's a peace officer statute that directs enforcement of the laws, but there's an attorney general statute that has more specific requirements for what the attorney general can and cannot do.

[00:21:01] Speaker 05:
And with respect to the district attorney's authority,

[00:21:05] Speaker 05:
The district attorneys have the particularized enforcement authority of all the criminal laws.

[00:21:11] Speaker 05:
The attorney general does not have just a roving mandate to go in and enforce criminal laws to supersede or take the place of the district attorney's authorities.

[00:21:23] Speaker 05:
And that's something that this court actually looked at in the Kitchen v. Herbert case.

[00:21:27] Speaker 05:
And it recognized that in that case, the AG did have the authority to supervise and oversee the district attorney filings, and that's why there was a particularized enforcement authority there.

[00:21:36] Speaker 05:
We don't have that here.

[00:21:37] Speaker 05:
The district attorneys have a separate, particularized enforcement authority in a separate statutory provision.

[00:21:45] Speaker 04:
Well, the Attorney General and Herbert just said as much, right?

[00:21:49] Speaker 04:
I mean, it wasn't really an issue that was addressed.

[00:21:51] Speaker 04:
The Attorney General just said, I have the authority and didn't contest it.

[00:21:54] Speaker 04:
Isn't that right?

[00:21:55] Speaker 05:
That's also true, but the statutory framework, Your Honor, was also different based on, at least from what I understand, based on the assertion made that under the statutes at issue there in Utah, I believe, the attorney general does have that superseding authority or supervisory authority, excuse me.

[00:22:12] Speaker 04:
What about, you know, argue that the attorney general can't find itself in a position of having to enforce the statute.

[00:22:21] Speaker 04:
In the appropriate circumstance, when it's designated by the governor as a as a temporary DA, if a case arose involving this statute, the attorney general would enforce it.

[00:22:32] Speaker 05:
True.

[00:22:33] Speaker 05:
If the attorney general was appointed by the governor to enforce the statute,

[00:22:39] Speaker 05:
That would then potentially satisfy the particularized enforcement authority, but that isn't the default.

[00:22:45] Speaker 05:
And that only happens in the situation where the governor would appoint him under the statutory provision.

[00:22:50] Speaker 05:
Otherwise, it's just a generalized enforcement authority.

[00:22:52] Speaker 05:
And as this court recognized repeatedly, but most recently in Edmondson, really because an attorney general has a duty to prosecute all actions in which the state has an interest is not enough to make him a proper defendant in every such action.

[00:23:07] Speaker 05:
And I think also that goes to the point of showing that the particularized enforcement authority is in fact vested in the DAs and it takes an act of a governor's executive order to tag the attorney general in order to start a prosecution in those circumstances.

[00:23:27] Speaker 05:
I want to talk very quickly about something that

[00:23:30] Speaker 05:
was made with a much more strident argument in the reply brief than I think has been addressed in the briefing up to this case.

[00:23:36] Speaker 05:
And that's this idea of the attorney general as counsel for agencies and that giving the attorney general a particularized enforcement authority.

[00:23:44] Speaker 05:
And that's certainly just not so.

[00:23:45] Speaker 05:
When lawyers for the attorney general's office represent a state agency as a client,

[00:23:51] Speaker 05:
They do so out of a general statutory duty that's specifically found in order for the attorney general to appear on behalf of the client agency.

[00:23:59] Speaker 05:
They're not appearing as an enforcer of the law.

[00:24:01] Speaker 05:
They're not appearing on behalf of the attorney general.

[00:24:04] Speaker 05:
They're appearing as any lawyer appears on behalf of a client.

[00:24:07] Speaker 05:
They serve as an agent consistent with the Colorado or any rules of professional conduct, 1.2, where a lawyer must abide by the client's wishes.

[00:24:17] Speaker 05:
So applying the ex parte young exception, as the counsel on the other side advocates for doing, in a situation where the attorney general is simply counsel for an agency, representing an agency would amount to essentially nothing more than a generalized finding of the AG having authority to appear.

[00:24:35] Speaker 05:
And let me give you an example of sort of why that doesn't track as a matter of logic.

[00:24:41] Speaker 05:
The attorney general, one of the client agencies the attorney general's office represents is the office of the state public defender.

[00:24:47] Speaker 05:
But there's no world where the attorney general gets up and represents defendants in criminal proceedings because there's no particularized authority to do so.

[00:24:56] Speaker 05:
But that doesn't change the fact that the attorney general does in fact represent the agency in civil actions as a general principle.

[00:25:05] Speaker 05:
And that sort of dovetails with this idea that

[00:25:07] Speaker 05:
It was raised in the 303 creative opinion from this circuit.

[00:25:13] Speaker 05:
That doesn't suggest that ex parte young applies.

[00:25:15] Speaker 05:
In that case, much like the kitchen case, the 10th Circuit described Colorado's having conceded that their attorney general had enforcement authority, at least limited for that particular statute, the anti-Colorado's anti-discrimination statute.

[00:25:29] Speaker 05:
But that was in the context of traceability for standing and traceability for standing is different than the particular duty to enforce.

[00:25:37] Speaker 05:
It's about a little over the time that I want so listen anybody has any questions specifically for me.

[00:25:44] Speaker 03:
I'm going to cede my time All right, thank you.

[00:25:52] Speaker 05:
We ask that you affirm Thank you Good afternoon, Jack Peters.

[00:26:01] Speaker 01:
I'm here on behalf of district attorney Walsh

[00:26:03] Speaker 01:
Just to assuage your nerves, my third colleague is not arguing.

[00:26:07] Speaker 03:
I didn't mean to scare you all.

[00:26:10] Speaker 03:
Sorry.

[00:26:12] Speaker 01:
I think you've already heard a fair amount about the panel's prior decisions.

[00:26:20] Speaker 01:
I'm not going to belabor that.

[00:26:21] Speaker 01:
What I want to focus on that's really relevant to this petition attorney Walsh is the declaration that was filed.

[00:26:27] Speaker 01:
And I'm happy to talk about the later declaration that was also filed.

[00:26:31] Speaker 01:
I think the key point here is that I'm not sure what else the district attorney can say, really beyond saying we will not prosecute you for First Amendment activity.

[00:26:42] Speaker 01:
The district attorney can't say we won't prosecute you for anything because there are lots of crimes that don't involve First Amendment activity.

[00:26:49] Speaker 01:
There are lots of ways to violate these two statutes that don't involve First Amendment activity.

[00:26:54] Speaker 01:
All the district attorney can disclaim here is prosecution for protected First Amendment activity.

[00:27:00] Speaker 03:
Should we look at the timing?

[00:27:04] Speaker 03:
Your closing counsel raises an interesting point that generally we look at standing at the time that the complaint is filed in a declaration.

[00:27:15] Speaker 03:
Both declarations were filed after the filing of the complaint, secondly, quite a bit later.

[00:27:20] Speaker 03:
Sure.

[00:27:22] Speaker 03:
Is that a problem?

[00:27:24] Speaker 01:
Let me focus first on the one filed in the trial court.

[00:27:28] Speaker 01:
The issue there is that the District Attorney had no idea who the plaintiff was, no idea what this issue was.

[00:27:34] Speaker 01:
The District Attorney does not just walk around filing declarations in every lawsuit anywhere just in case she might become a party later.

[00:27:43] Speaker 01:
That just doesn't make any sense.

[00:27:46] Speaker 01:
The District Attorney was named as the defendant, and that was the first time the DA's office ever heard about these issues.

[00:27:52] Speaker 01:
I mean, there are a lot of people in the city of Denver.

[00:27:56] Speaker 01:
The DA does not regularly audit, might I want to prosecute this person?

[00:28:00] Speaker 01:
That's just not the way the office works.

[00:28:03] Speaker 01:
So this is not something that was on the DA's radar at all.

[00:28:06] Speaker 01:
Once the DA was named, I think it was about two and a half months between when the DA was named and when that declaration was filed.

[00:28:14] Speaker 01:
I think that's relatively quick.

[00:28:16] Speaker 03:
Well, I will say that I understand you made that before.

[00:28:24] Speaker 03:
How, however, do we reconcile that common sense argument with our case law and the Supreme Court's case law that says you evaluate standing at the time that the complaint is filed?

[00:28:37] Speaker 01:
I think you can reconcile it just fine, because the facts are what they are when the complaint was filed.

[00:28:43] Speaker 03:
Well, I don't mean to talk about it, but just play devil's advocate.

[00:28:50] Speaker 03:
Isn't it the problem to determine whether or not

[00:28:54] Speaker 03:
there is an imminent threat of injury for purposes of standing, can a district court or a circuit court look at a declaration that was filed post-filing of the complaint to determine at the time of the filing of the complaint whether or not there was an imminent threat of injury?

[00:29:11] Speaker 01:
I think the issue there is there's a long line of 10 circuit cases discussing prosecutors disavowals.

[00:29:17] Speaker 01:
Some of those are filed after the fact.

[00:29:19] Speaker 01:
And that holding would say a prosecutor can never submit it as a vowel after filing.

[00:29:25] Speaker 01:
And that issue is not consistent with this circuit's case law.

[00:29:28] Speaker 01:
There are several cases in which that happened.

[00:29:30] Speaker 01:
Now, if the DA had been named on day one, and three years later we thought, hey, that would be a great idea.

[00:29:38] Speaker 01:
Let's file that declaration.

[00:29:39] Speaker 01:
Sure, I'll spot you that.

[00:29:41] Speaker 01:
That would be a problem.

[00:29:43] Speaker 01:
But that's not what happened here.

[00:29:44] Speaker 01:
So I think the issue is,

[00:29:46] Speaker 01:
Yes, as a general fact, you're looking at the facts as they exist at the time the complaint is filed.

[00:29:52] Speaker 01:
And that's true for all the allegations.

[00:29:54] Speaker 01:
But some things, like this kind of disavowal, by their nature, it is not possible to know about them before the complaint is filed.

[00:30:03] Speaker 01:
So it would basically write out the opportunity to do that entirely.

[00:30:09] Speaker 04:
Well, the disavowal may still be relevant, just not for a standing inquiry.

[00:30:13] Speaker 04:
I mean, it may present issues on the merits or the ability of a petitioner to satisfy their claim or its summary judgment.

[00:30:19] Speaker 04:
So it's not all is lost.

[00:30:21] Speaker 04:
It's just a question of whether it's a special exception to the timing rule.

[00:30:26] Speaker 01:
No, I think that's right.

[00:30:27] Speaker 01:
I would just go back to saying I think that would be in

[00:30:30] Speaker 01:
that would conflict with this circuit's case law in which there are disavowals filed after the lawsuit has been filed.

[00:30:37] Speaker 01:
I think that would undo prior holdings, and that would change this circuit's law, which I don't think would be appropriate here.

[00:30:45] Speaker 01:
And I think it's pretty clear cut that prosecutors in a situation like this, where there is this specific issue of credible fear of prosecution, can disavow prosecution.

[00:30:58] Speaker 01:
And that has happened many times.

[00:31:00] Speaker 01:
And there are many cases where it's discussed.

[00:31:04] Speaker 01:
So I understand the kind of writ large legal issue.

[00:31:10] Speaker 01:
But I think as it has actually been handled in this circuit, that's not how it's been handled as a matter of fact, as a matter of historical precedent.

[00:31:20] Speaker 01:
I'm happy to answer any questions if you have them.

[00:31:21] Speaker 01:
Otherwise.

[00:31:26] Speaker 03:
OK, thank you.

[00:31:27] Speaker 01:
Thank you.

[00:31:28] Speaker 03:
Does the appellant have any rebuttal with that?

[00:31:31] Speaker 03:
OK, I tell you what, even though you're out of time, I'll give you 30 seconds.

[00:31:39] Speaker 03:
I know it's not a lot of time, but 30 seconds is more than you had.

[00:31:44] Speaker 03:
And that's just if you have, say, one point that you can do very, very quickly.

[00:31:54] Speaker 02:
Thank you, Your Honor.

[00:31:54] Speaker 02:
I'll go to the last issue of the disavowal because I think it's important.

[00:31:58] Speaker 02:
The timing issue we think is critical and is in the briefs.

[00:32:01] Speaker 02:
However, the disavowal doesn't save the defendant's position because it's too generic.

[00:32:08] Speaker 02:
To say that if it's determined to be a First Amendment speech issue, we won't enforce it is not the type of disavowal that the courts have accepted.

[00:32:17] Speaker 02:
And that makes perfect sense.

[00:32:18] Speaker 02:
It's effectively a prior restraint on speech.

[00:32:21] Speaker 02:
The whole problem here is that the county court said publishing literary essays is harassment.

[00:32:28] Speaker 02:
And regardless of what the First Amendment says, you're going to be punished for it.

[00:32:31] Speaker 02:
So it doesn't count as a disavowal to say that we will follow the First Amendment.

[00:32:36] Speaker 02:
The best case on that is probably the Duran-Patterson Christian Academy one.

[00:32:41] Speaker 02:
And I would point to the Holder versus Humanitarian law.

[00:32:44] Speaker 02:
These are both cited in the reply brief.

[00:32:46] Speaker 02:
that the disavowal has to be for specific conduct.

[00:32:49] Speaker 02:
And that's the last thing I will say.

[00:32:50] Speaker 02:
The disavowal of the DA here is only about RB.

[00:32:54] Speaker 02:
And we have claims that are broader than RB.

[00:32:59] Speaker 02:
Thank you.

[00:33:00] Speaker 02:
This matter will be submitted.