[00:00:02] Speaker 00:
Case number 15-5107, Arthur S. West, appellant, versus Loretta E. Lynch at L. Mr. Zients for the amicus cari, Mr. Riley, federal defendant at police, and Mr. Evan for Washington State defendant at police.

[00:00:18] Speaker 07:
Mr. Zients, good morning.

[00:00:20] Speaker 02:
Thank you, Your Honor.

[00:00:21] Speaker 02:
Good morning, and may it please the Court.

[00:00:23] Speaker 02:
As an amicus curiae before this Court, appointed by this Court, I'm happy to address whatever aspects of this case the Court is most interested in.

[00:00:30] Speaker 02:
Unless the Court has a different preference, I will plan to begin with the District Court's personal jurisdiction holding.

[00:00:37] Speaker 07:
The District Court in this case held... Why don't you begin with standing, in particular, redressability?

[00:00:44] Speaker 02:
Sure, sure your honor.

[00:00:47] Speaker 02:
So to begin then with standing, what the district court held was that Mr. West had failed to allege standing sort of at each step of the way, injury in fact, causation, redressability.

[00:01:00] Speaker 02:
I know your honor asked about redressability.

[00:01:02] Speaker 02:
If I can just say a word just to frame the issue in terms of, I think this is not quite how Mr. West argued it below, but I think it is helpful to take

[00:01:11] Speaker 02:
to take the standing issue as being in two parts.

[00:01:15] Speaker 02:
As I've suggested in my brief, there's the claim about his injury as a user of medical marijuana that I think has its own chain of causation and redressability.

[00:01:25] Speaker 02:
And then I think he's alleging a somewhat distinct injury with distinct legal claims concerning his exposure to unwanted marijuana smoke and the effects of that in the environment from recreational marijuana.

[00:01:37] Speaker 02:
So I'll begin with that.

[00:01:39] Speaker 02:
And in terms of causation-

[00:01:41] Speaker 05:
Sure.

[00:01:42] Speaker 05:
With respect to those two injuries, it's the substantive injury that comes from people with respect to the ladder.

[00:01:49] Speaker 05:
he alleges comes from people smoking in, I guess, a park near his house.

[00:01:54] Speaker 02:
Is there a...?

[00:01:55] Speaker 02:
Yes, Your Honor, the complaint contains a number of allegations about sort of broad societal injuries from the increased use of marijuana.

[00:02:02] Speaker 02:
What I think is the strongest claim of a concrete injury for Article III purposes is that Mr. West alleges a few things, but principally he alleges he, for example, frequents

[00:02:16] Speaker 02:
Sylvester Park in his neighborhood in the city of Olympia, Washington.

[00:02:21] Speaker 02:
Since initiative 502 has been implemented, there has been an increase in marijuana use and smoke in that park.

[00:02:30] Speaker 02:
He has no objections to that, including aesthetic.

[00:02:33] Speaker 04:
How does he know the people smoking marijuana in the park aren't smoking medical marijuana?

[00:02:40] Speaker 02:
I'm not sure he knows that.

[00:02:43] Speaker 02:
What he is alleged is that since the implementation of initiative 502, he has witnessed an increase in the use of marijuana in that part.

[00:02:57] Speaker 02:
But he doesn't know the causes of that, right?

[00:02:59] Speaker 04:
He has no idea whether

[00:03:01] Speaker 04:
those are recreational.

[00:03:02] Speaker 04:
By the way, it's illegal to smoke pot in a park, marijuana in the park, right?

[00:03:08] Speaker 02:
Under state law?

[00:03:09] Speaker 02:
Correct, Your Honor.

[00:03:10] Speaker 02:
It's a civil infraction for about a $50 penalty.

[00:03:12] Speaker 02:
All right.

[00:03:14] Speaker 04:
Well, go ahead.

[00:03:16] Speaker 05:
He doesn't raise any procedural injuries.

[00:03:17] Speaker 05:
It's just those two stuff and the ones you identified.

[00:03:20] Speaker 02:
Your Honor, Mr. West has a NEPA claim.

[00:03:23] Speaker 02:
He alleges that essentially with the coal memorandum and the related activities taken by the federal government, Mr. West alleges that the federal government should have undergone a NEPA environmental review before making that decision.

[00:03:38] Speaker 02:
So he alleges that there was a procedural injury in that sense.

[00:03:43] Speaker 02:
In order to succeed in that, he still needs to allege an injury, in fact, that could be addressed, but he does not need to allege that the NEPA review would actually result in a different decision.

[00:03:59] Speaker 02:
But, Judge Theodore, to take your question, I think you're correct that Mr. West can't know for sure whether the smoke that Mr. West is exposed to in the park is recreational marijuana.

[00:04:11] Speaker 02:
What he can say is, from his experience spending time in that park, that there was an event in time, the implementation of initiative 502, and Mr. West objects to various things.

[00:04:23] Speaker 02:
about the decision allowing that to go into effect.

[00:04:26] Speaker 02:
And what Mr. West alleges is that as someone who frequents that park, he has witnessed that the conditions of that park have degraded.

[00:04:33] Speaker 04:
I just don't understand how the actions of the Attorney General could have caused something that occurred several years earlier, namely the passage of 502.

[00:04:45] Speaker 02:
Sure.

[00:04:45] Speaker 04:
And that, I think, is a... Which goes to Judge Henderson's question.

[00:04:48] Speaker 02:
Exactly.

[00:04:49] Speaker 02:
And so that's the causation and redressability question.

[00:04:52] Speaker 02:
And what Mr. West has alleged in this case is that, in fact, these are not independent events.

[00:05:01] Speaker 02:
What the Supreme Court has held, what this court has held in various cases is that

[00:05:05] Speaker 02:
When the harm is independently caused by a third party, then there's no causation, there's no redressability.

[00:05:12] Speaker 02:
But when there is a relationship, there's a causal relationship between the third party's actions and the defendant in the case, then causation can be established.

[00:05:21] Speaker 02:
And so what Mr. West's position is essentially, yes, the Washington voters in the November 2012 election approved initiative 502.

[00:05:30] Speaker 02:
What Mr. West says is that without, that was sort of turning the first key.

[00:05:35] Speaker 02:
analogize it to the nuclear codes.

[00:05:37] Speaker 02:
You sort of need two keys to make this happen.

[00:05:40] Speaker 02:
One, the state needed to decide to do this to legalize recreational marijuana.

[00:05:45] Speaker 02:
That alone wasn't going to do it, Mr. West alleges, because the state wouldn't have done it without some sort of go-ahead from the federal government.

[00:05:53] Speaker 04:
And what he has pointed to is very- The ballot initiative was passed several years earlier, correct?

[00:05:58] Speaker 04:
Before the go-ahead from the government.

[00:06:00] Speaker 02:
Correct, Your Honor.

[00:06:01] Speaker 04:
Did the state have to do, once 502 was passed,

[00:06:05] Speaker 04:
That was it for the legal situation in Washington, right?

[00:06:09] Speaker 04:
In other words, that decriminalized marijuana.

[00:06:12] Speaker 04:
It didn't require any further actions by the legislature, did it?

[00:06:15] Speaker 02:
I do think that there was some legislative action.

[00:06:18] Speaker 02:
I think there were instructions in the initiative to set up a regulatory regime.

[00:06:24] Speaker 02:
I'm not sure that anything specific needed to happen.

[00:06:28] Speaker 05:
In fact, I think there was even a time frame for having a body of regulations issued, and so the state was in the process of preparing those regulations.

[00:06:42] Speaker 02:
I think that's correct, Your Honor, and what I would say is that... They're already implementing 502.

[00:06:47] Speaker 05:
The state was already implementing 502 without the call memo.

[00:06:50] Speaker 02:
Your Honor, they were certainly taking steps to prepare for the implementation of initiative 502.

[00:06:56] Speaker 02:
I think what Mr. West has pointed to is various statements by Washington state officials.

[00:07:01] Speaker 02:
For example, when the call memorandum came out, the Attorney General released a statement,

[00:07:06] Speaker 02:
page 40 of the appendix.

[00:07:07] Speaker 02:
Today we receive confirmation that Washington's voter approved marijuana law will be implemented.

[00:07:13] Speaker 02:
And it goes on to thank federal officials for, quote, allowing the initiative to be implemented.

[00:07:21] Speaker 05:
So I think one- My understanding was the initiative itself required them to promulgate regulations and set a deadline.

[00:07:28] Speaker 05:
And they were already doing that.

[00:07:29] Speaker 05:
Whatever this statement might be, they were already doing that and legally obligated to do that with or without the cold memorandum.

[00:07:36] Speaker 02:
Your Honor, I think as a matter of state law, that's certainly the case.

[00:07:38] Speaker 02:
You could imagine if, for example, the attorney general in 2013 had not issued the Cole memorandum, the attorney general could have done a couple of other things.

[00:07:47] Speaker 02:
The attorney general could have gone to court and said, I'm asking the court to enjoin this law from being implemented as preempted.

[00:07:56] Speaker 02:
I think the federal government's position has been that was an available option to them.

[00:08:01] Speaker 02:
Even without that step,

[00:08:03] Speaker 02:
I think a question could have been raised for the state government if the state government was faced with – would have the sort of permission slip that they were seeking from federal officials.

[00:08:15] Speaker 02:
The state government would have been in a position where they might have said absent – despite the requirements of state law that we're supposed to enact these regulations and proceed with the implementation of initiative 502,

[00:08:27] Speaker 02:
There's the Supremacy Clause.

[00:08:28] Speaker 02:
There's federal law saying that marijuana is illegal.

[00:08:31] Speaker 02:
The federal government has told us that we can't go ahead with that.

[00:08:34] Speaker 02:
And the state, I suppose, might have decided to fight that out.

[00:08:37] Speaker 02:
But they also, I think the suggestion from some of these statements is that they regarded that permission from the federal government as important.

[00:08:44] Speaker 02:
And that, I think, is the heart of the causal allegation in Mr. West's

[00:08:50] Speaker 02:
case, this idea that at the motion to dismiss stage, with all inferences taken in his favor, that when you look at these statements by state officials of the state of Washington, that you can reach the conclusion that is at least plausible at the motion to dismiss stage, that there was this causal relationship.

[00:09:11] Speaker 05:
And then what about regressibility?

[00:09:13] Speaker 05:
The control memo disappeared tomorrow.

[00:09:18] Speaker 05:
that wouldn't change enforcement priorities, and that wouldn't change the fact that there's 502 and regulatory scheme and now a cannabis act and the whole structure in Washington.

[00:09:30] Speaker 05:
So how would just having the coal memo itself disappear change anything?

[00:09:36] Speaker 02:
I think this overlaps with my answer on causation, and the reason for that is that this court has said various times, adjustability is sort of the other side of the coin, the flip side of causation.

[00:09:49] Speaker 02:
So if you agree that what Mr. West has alleged in this case,

[00:09:54] Speaker 02:
that he has plausibly alleged the causation in the sense that without the Cole Memorandum, that the state officials essentially viewed the Cole Memorandum as that other key, that necessary ingredient to allow them to go forward with continuing to implement initiative 502.

[00:10:10] Speaker 02:
I think you would then reach the same conclusion under redressability that if... But not if they've talked to the folks.

[00:10:19] Speaker 05:
And the fact that the coal memo is gone doesn't mean enforcement priorities have changed.

[00:10:26] Speaker 05:
And so it seems rather speculative to assume that just because a coal memo were to go in the recycle bin, that there would be any change in enforcement priorities by the Justice Department, particularly given that, you know, marijuana possession charges have historically been prosecuted by states, not the federal government anyhow, even pre-coal memos.

[00:10:49] Speaker 02:
Your Honor, I think what Mr. West has alleged in his view of the Cole Memorandum is that it goes somewhat beyond, certainly on its face, talks about enforcement priorities, but it does go beyond that.

[00:11:03] Speaker 02:
It talks about strong regulatory structures.

[00:11:05] Speaker 02:
It has a sort of implicit threat, actually an explicit threat.

[00:11:08] Speaker 02:
We may go after your regulatory system.

[00:11:11] Speaker 02:
The Cole Memorandum was accompanied by a letter by Attorney General Holder.

[00:11:15] Speaker 05:
But they could do that even if they

[00:11:15] Speaker 05:
have a cold memo.

[00:11:17] Speaker 05:
Nothing needs to change in the heads of federal prosecutors just because a cold memo goes away, doesn't it?

[00:11:23] Speaker 05:
You can't order them to change their enforcement priority.

[00:11:26] Speaker 05:
You would agree with that, correct?

[00:11:28] Speaker 02:
That's correct, Your Honor.

[00:11:29] Speaker 02:
I think the way to think about it is that Mr. West is challenging the Cole Memorandum as well as the Attorney General's letter and the broader determination essentially not to take any steps against the state of Washington's enforcement implementation of initiative 502 in what Mr. West

[00:11:48] Speaker 02:
is alleging is that without, I think he's not just saying join the coal memorandum, he's saying make the federal government undertake an environmental analysis under NEPA, make the federal government essentially consider whether, I suppose one option would be to continue to follow the coal memorandum, one option would be simply withdraw the coal memorandum and revert to the state of affairs before, and another would be

[00:12:16] Speaker 02:
go into federal court, seek preemption of this law, or to express a broader opposition.

[00:12:27] Speaker 02:
I don't think you could order the Justice Department to go into court.

[00:12:33] Speaker 02:
What the court would be ordering if Mr. West survived, not just at the standing stage, but at the merits.

[00:12:39] Speaker 02:
And you decided that there was a NEPA claim here and that it was violated.

[00:12:42] Speaker 02:
What this court could order is for the Justice Department to view this category of decisions relating to whether to permit the state of Washington to proceed with medical marijuana implementation.

[00:12:57] Speaker 04:
view that as a major federal action and go back and do the environmental analysis that... But there still has to be, even if you're right about that, even if we could order that, there still has to be, before we could, there still has to be causation and regressibility, right?

[00:13:15] Speaker 04:
There still has to be, we would still have to understand that

[00:13:23] Speaker 04:
eventually validating or ordering a NEPA study for the call report would have consequences in Washington, right?

[00:13:31] Speaker 02:
Correct, Your Honor.

[00:13:31] Speaker 02:
And that's where, at least on this half of the way I'm considering sort of the one chain of causation, and after I answer this question, maybe I can briefly address the other.

[00:13:40] Speaker 02:
I think what Mr. — Well, you have the same problem with the other one, right?

[00:13:44] Speaker 04:
In other words, with the increased taxation and regulation

[00:13:48] Speaker 04:
Isn't it exactly the same problem?

[00:13:50] Speaker 04:
I mean, in fact, it's sort of the mirror image, because with respect to 502, that occurred.

[00:13:58] Speaker 04:
Your causation problem there is that it occurred before the complaint was filed, and with respect to the increased regulation and taxation,

[00:14:08] Speaker 04:
your problem there, or not your problem, your client?

[00:14:11] Speaker 04:
I'm not even your client.

[00:14:12] Speaker 04:
Mr. West's problem is that the legislation imposing the new taxes occurred after the complaint was filed, correct?

[00:14:23] Speaker 02:
That is correct, Your Honor.

[00:14:26] Speaker 04:
That's the problem, right?

[00:14:28] Speaker 02:
Sure, Your Honor.

[00:14:29] Speaker 02:
And so there are a few points here.

[00:14:32] Speaker 02:
I think on the medical marijuana chain of causation there, if the issue there is that a lot of this, the new marijuana law, happened after the complaint, what I think it would be fair to do is, particularly as a pro se plaintiff,

[00:14:51] Speaker 02:
You know, as other courts have held, I don't think that this court has specifically reached this question, but certainly a number of other courts.

[00:14:57] Speaker 04:
Yeah, but for us to send it back, it still has to be, I mean, it seems to me that if we think that

[00:15:05] Speaker 04:
that no matter what he alleges about that, that there's no causation or redressability, then amending would be futile.

[00:15:11] Speaker 04:
There would be no reason to add that, to let him do that, right?

[00:15:15] Speaker 02:
Sure.

[00:15:15] Speaker 02:
That's exactly right, Your Honor.

[00:15:16] Speaker 02:
So I was just addressing that if the issue that the court sees in this is a sort of timing issue, just the fact that there was this injury from the increased regulation just happened later, if the problem is just you can't take that into account because it wasn't in the complaint, I think

[00:15:32] Speaker 02:
You could remand for an amendment, or you could simply view Mr. West's further pleadings on that as a pro se plaintiff.

[00:15:41] Speaker 02:
Treat them as sort of 15-D supplemental pleadings.

[00:15:44] Speaker 02:
Of course, if you think that even with those in the case, then the case shouldn't go forward.

[00:15:49] Speaker 02:
That's a different matter.

[00:15:51] Speaker 02:
Your Honor, I see that my time is up.

[00:15:53] Speaker 02:
I'm happy to continue addressing that order.

[00:15:55] Speaker 07:
All right.

[00:15:55] Speaker 02:
We'll give you a few minutes in response.

[00:15:57] Speaker 02:
Thank you.

[00:15:59] Speaker 07:
Thank you.

[00:15:59] Speaker 07:
Mr. Roddy.

[00:16:14] Speaker 03:
Good morning, and may it please the court.

[00:16:16] Speaker 03:
Nicholas Riley for the federal appellees.

[00:16:19] Speaker 03:
It sounds like from the court's questioning, like I said, a good understanding of the issues in this case.

[00:16:23] Speaker 03:
The only point that I would just want to add was the one that Judge Millett alluded to in one of her questions, which is that the kinds of relief that plaintiff is seeking here fundamentally are the kinds of these decisions that the federal appellees would have to make are committed to the attorney general's discretion by law.

[00:16:41] Speaker 03:
Again, taking an enforcement action, whether that's a prosecution under the CSA or initiating some sort of suit, preemption-type lawsuit, these are, again, decisions that are committed to the attorney general's discretion by law, which was one of the grounds that the district court dismissed on.

[00:16:56] Speaker 03:
I'm happy to address any specific questions that the court might have about standing, about the other grounds for dismissal.

[00:17:05] Speaker 03:
The court has none.

[00:17:07] Speaker 07:
Is the prosecutorial discretion, do you see that as jurisdictional?

[00:17:11] Speaker 03:
Yes, I think that's a question of what this court could order.

[00:17:16] Speaker 07:
But it's simply a presumption, isn't it?

[00:17:19] Speaker 03:
That's true.

[00:17:19] Speaker 03:
It is a presumption.

[00:17:20] Speaker 03:
As the district court noted, though, in this particular case, the plaintiff has not offered anything to rebut that presumption.

[00:17:28] Speaker 03:
The district court invited plaintiff to raise some sort of abdication type of argument.

[00:17:32] Speaker 07:
But what I'm asking is, I'm

[00:17:37] Speaker 07:
not sure it's jurisdictional if it's just a presumption, because then it could be overcome.

[00:17:41] Speaker 07:
And then we would have jurisdiction.

[00:17:43] Speaker 03:
As you're saying, Your Honor.

[00:17:43] Speaker 03:
Yeah.

[00:17:44] Speaker 03:
And I think that's a fair way to read it.

[00:17:45] Speaker 03:
I think in this particular case, though, even treating it as a presumption, plaintiff has not offered anything to rebut that presumption.

[00:17:52] Speaker 03:
So I think it's still a valid grounds for dismissal here.

[00:17:56] Speaker 04:
But how could we get to that until we first resolve your standing argument?

[00:18:00] Speaker 03:
Well, I mean, again, I think- Isn't that right?

[00:18:03] Speaker 04:
For us to get to that issue, don't we have to conclude the plaintiff has standing?

[00:18:07] Speaker 03:
No, absolutely.

[00:18:08] Speaker 03:
I'm sorry.

[00:18:08] Speaker 03:
I didn't mean to imply that the court could skip over standing anyway.

[00:18:11] Speaker 03:
We think that he lacks standing.

[00:18:13] Speaker 03:
We just wanted to note that because much of the discussion of amicus focused on standing, I just wanted to add the extra point there.

[00:18:19] Speaker 05:
What is the US government's position on how personal jurisdiction analysis applies in an ex-party young case?

[00:18:26] Speaker 05:
Do we look at the defendant as

[00:18:29] Speaker 05:
a state for purposes of a personal jurisdiction statute or as an individual for purposes of a personal jurisdiction statute?

[00:18:38] Speaker 03:
I think that's a question that we haven't taken a position on here.

[00:18:40] Speaker 03:
I think, again, the state is prepared to answer questions about personal jurisdiction since that was the grounds on which the claims against the state were dismissed.

[00:18:49] Speaker 03:
Personal jurisdiction was not an issue with respect to the claims that plaintiff raised against the federal government.

[00:18:55] Speaker 05:
Do you think the same problem would not come up in Bivens cases?

[00:18:57] Speaker 03:
I'm not prepared to address it right now.

[00:19:02] Speaker 03:
Again, this case was decided, at least the claims against the federal government on both standing grounds and failure of state of claim.

[00:19:10] Speaker 05:
Why isn't the differential threat between a $50 civil fine for smoking in public imposed by the state and a potential felony conviction by the federal government

[00:19:27] Speaker 05:
causal analysis, right?

[00:19:29] Speaker 05:
Isn't it fair to assume if speeding will get me, no, speeding will get someone else.

[00:19:36] Speaker 05:
I have a friend who wants to speed and that friend would face a $50 civil speeding ticket.

[00:19:42] Speaker 05:
That's one judgment.

[00:19:44] Speaker 05:
And if the friend thought she could face more than a year in prison, do you think that would have a differential

[00:19:55] Speaker 05:
Do we have a deterrent effect on individuals?

[00:20:00] Speaker 03:
I think it may.

[00:20:01] Speaker 05:
Isn't that a pretty good suggestion, inference that it would, at least for the stage of pleadings?

[00:20:10] Speaker 03:
Sure, I think that's a fair point.

[00:20:12] Speaker 03:
I don't think it makes a different outcome here.

[00:20:14] Speaker 05:
Do you suggest then that having the COLA memo might have a real impact on whether people are willing to smoke in public?

[00:20:22] Speaker 03:
No, because again, the call memo, I think as Your Honor and some of the other questions indicated, the call memo could be invalidated tomorrow, and initiative 502 would still be on the books.

[00:20:32] Speaker 03:
The call memo doesn't do anything to preclude prosecution of marijuana use under the CSA.

[00:20:38] Speaker 03:
In fact, the call memo expressly states the opposite, which is that it shouldn't be construed as preventing any US attorney office from commencing enforcement proceedings under the CSA.

[00:20:48] Speaker 03:
So again, I don't think that

[00:20:52] Speaker 03:
if there is any differential deterrent effect from federal prosecution versus the current state prohibition, I don't think that affects the problems with causation or redressability that we've identified here.

[00:21:03] Speaker 05:
And for redress, does it have to stop the smoking in the park, or would it be enough to simply reduce the amount of smoking in the park?

[00:21:11] Speaker 05:
Because some folks are worried about felony convictions.

[00:21:16] Speaker 03:
Again, I'm not sure that that ultimately makes a difference here.

[00:21:21] Speaker 03:
Again, with respect to the call memo,

[00:21:24] Speaker 03:
any differential deterrent effect, again, between federal prosecution and the state violation, I don't think is attributable or traceable to the issuance of the Cole Memo.

[00:21:33] Speaker 03:
Because again, the Cole Memo doesn't actually preclude any prosecutions under federal law.

[00:21:37] Speaker 03:
The Cole Memo simply is providing guidance to federal prosecutors as to what factors they should consider in deciding whether or not to commence prosecution under the Controlled Substances Act for marijuana-related violations.

[00:21:50] Speaker 07:
I had a question that listed among the priorities that the federal government wanted to concentrate on was drugged driving and I don't see how unless an ATF agent or an FBI agent or a DEA agent can make a traffic stop how that is a federal priority.

[00:22:13] Speaker 07:
Do you happen to know

[00:22:16] Speaker 07:
We were discussing, my clerk and I, whether federal officers can see somebody going by 100 miles an hour effect an arrest.

[00:22:25] Speaker 05:
I don't know the answer to that, Your Honor, but I do think that... It would be on park lands in Washington, federal lands in Washington, in the state of Washington, correct?

[00:22:35] Speaker 05:
Or here in D.C., right?

[00:22:36] Speaker 05:
They enforced drug driving on the G.W.

[00:22:38] Speaker 05:
Parkway or the Baltimore-Washington Parkway?

[00:22:40] Speaker 03:
I mean, if it's on federal lands, I didn't understand... Federal roadways.

[00:22:43] Speaker 07:
Okay.

[00:22:43] Speaker 07:
Well, I don't think it's limited to that.

[00:22:45] Speaker 03:
Right.

[00:22:45] Speaker 03:
I didn't understand your question to be limited to federal property.

[00:22:49] Speaker 03:
Again, I don't know the exact answer to that, but... Okay.

[00:22:53] Speaker 03:
We're talking here again about federal enforcement priorities.

[00:22:57] Speaker 03:
And I think it's fair to read those as what kinds of cases, what kinds of effects these prosecutors should have in mind when they're deciding whether or not to prosecute.

[00:23:08] Speaker 03:
So it wouldn't necessarily be guidance for the arrest decision and whether or not a federal agent is going to arrest a particular individual for drunk driving or driving while intoxicated.

[00:23:17] Speaker 03:
It would be the kinds of cases that would preclude those kinds of consequences.

[00:23:25] Speaker 07:
Any more questions?

[00:23:26] Speaker 07:
All right.

[00:23:26] Speaker 03:
Thank you.

[00:23:27] Speaker 03:
All right.

[00:23:36] Speaker 07:
Thank you very much.

[00:23:37] Speaker 07:
Mr. Even, you've come from the other Washington quite a way, so glad to have you.

[00:23:41] Speaker 01:
We refer to this as the other Washington.

[00:23:46] Speaker 01:
Thank you, Your Honor.

[00:23:47] Speaker 01:
My name is Jeffrey Even.

[00:23:48] Speaker 01:
I'm a Deputy Solicitor General from the state of Washington here on behalf of Governor Inslee and Ms.

[00:23:54] Speaker 01:
Foster.

[00:23:56] Speaker 01:
This case doesn't belong in this court, and the state defendants do not belong here.

[00:24:02] Speaker 01:
Mr. West's lack of standing provides a straightforward mechanism for resolving this case as to all defendants, but in addition, this court lacks personal jurisdiction over Governor Inslee and Ms.

[00:24:13] Speaker 01:
Foster.

[00:24:15] Speaker 01:
Now, I would propose to offer a few comments here regarding some issues relating to standing that have already come up in the discussion, and then proceed to personal jurisdiction.

[00:24:26] Speaker 01:
The first point that I would point out, Mr. Zions cites the court to page 40 of the Joint Appendix.

[00:24:35] Speaker 01:
I would suggest flipping back to the page right before it, to page 39, in which

[00:24:41] Speaker 01:
There's a description, a statement issued right after the meeting that occurred between the governor and the attorney general in which that meeting is described as the state officials expressing their intention to the federal officials to proceed with the enforcement, the execution of initiative 502.

[00:25:03] Speaker 01:
So there never was a question of needing to come and get federal permission

[00:25:09] Speaker 01:
in the form of a memo in order to proceed.

[00:25:12] Speaker 01:
The state officials have consistently recognized that they're obligated to implement state law.

[00:25:18] Speaker 01:
And then related to that, I think a quick point that came up in questioning about initiative 502 being self-executing.

[00:25:26] Speaker 01:
Yes, initiative 502 is itself a statute.

[00:25:32] Speaker 01:
In Washington, the state constitution can't be amended by an initiative, so the initiative itself is a statute.

[00:25:39] Speaker 01:
At the time this case was filed, initiative 502 was the law for

[00:25:47] Speaker 01:
for about a year before the coal memo was issued.

[00:25:51] Speaker 01:
And then after that, there was subsequent legislation, most notably in 2015, that merged the medical and the recreational together.

[00:26:01] Speaker 01:
But that came after this case was filed.

[00:26:04] Speaker 01:
So I think clarifying those points.

[00:26:17] Speaker 05:
or do something to stop you?

[00:26:18] Speaker 05:
Is that the context for understanding the statements?

[00:26:20] Speaker 01:
Well, before the coal memo was issued, the state didn't know that.

[00:26:25] Speaker 01:
We were frankly in uncharted territory.

[00:26:28] Speaker 01:
But nevertheless, because we have a state law that directs the executive branch to implement

[00:26:34] Speaker 01:
this new regulatory program, we were proceeding with that.

[00:26:38] Speaker 01:
And as I think you correctly described in a question, Your Honor, at the time the coal memo was issued, the state, what's now called the Liquor and Cannabis Board, was well along in the process of adopting administrative rules to govern that licensing and regulatory system.

[00:26:56] Speaker 01:
So that already was proceeding.

[00:26:58] Speaker 05:
And what about the Colorado passed a law around the same time and they were having the same conversations with the Attorney General and so Coleman lived with respect to Colorado regardless of?

[00:27:11] Speaker 05:
whatever impact it had on Washington.

[00:27:13] Speaker 01:
Well, yes, and in fact, those discussions were going on simultaneously.

[00:27:18] Speaker 01:
The Colorado initiative passed the same year as initiative 502 in Washington.

[00:27:25] Speaker 01:
So yes, Colorado was having the same conversations.

[00:27:29] Speaker 01:
We got to know people in Colorado a whole lot better than we used to.

[00:27:33] Speaker 01:
Yes, that was all going on at the time.

[00:27:38] Speaker 04:
I have a question that

[00:27:40] Speaker 04:
is going to take you far beyond the record, so you don't have to answer it if you don't want to.

[00:27:43] Speaker 04:
But based on what I read in the papers, it looks like the new attorney general may have a very different view about this than the current administration.

[00:27:53] Speaker 04:
And I'm wondering, so what happens if, after January 20, the Cole Memorandum is withdrawn?

[00:28:03] Speaker 04:
Will that have any effect in Washington?

[00:28:06] Speaker 01:
Well, that would not, Your Honor, directly change either federal law or state law.

[00:28:12] Speaker 01:
And so state officials would, at that point, still be obligated to follow state law.

[00:28:18] Speaker 01:
So isn't that the simple answer to the standing issue right there?

[00:28:20] Speaker 01:
I think it is.

[00:28:21] Speaker 01:
I think that's, frankly, the clearest answer for this entire case.

[00:28:28] Speaker 01:
Now, to make just a few remarks on the personal jurisdiction question, I don't think the court really... Excuse me, that's also true with respect to taxation and regulation also, both aspects of his claimed injury, right?

[00:28:41] Speaker 04:
Yes.

[00:28:42] Speaker 04:
Okay.

[00:28:42] Speaker 01:
Yes.

[00:28:43] Speaker 04:
The taxes would remain in place as would the regulations.

[00:28:46] Speaker 01:
Yes, that's correct.

[00:28:48] Speaker 01:
Yes.

[00:28:49] Speaker 05:
The federal law that says it won't interfere with medical marijuana, is that a continuing law or is it one that's enacted annually as a rider?

[00:28:58] Speaker 01:
Yes, it's a rider in the budget.

[00:29:01] Speaker 01:
So yes, the law currently is that the Department of Justice is precluded from using their appropriated funds to challenge state medical marijuana laws, but that is a budget rider.

[00:29:13] Speaker 01:
It could change.

[00:29:14] Speaker 05:
All right.

[00:29:14] Speaker 05:
But it's been, I forget what year it started.

[00:29:17] Speaker 05:
It was quite some time.

[00:29:18] Speaker 05:
It's been enacted, reenacted every year.

[00:29:20] Speaker 01:
It's been through at least two federal budgets.

[00:29:24] Speaker 01:
Maybe it's more than that.

[00:29:25] Speaker 01:
I'm not sure.

[00:29:26] Speaker 01:
So, yes.

[00:29:29] Speaker 01:
Very briefly, I think with regard to personal jurisdiction, I would reiterate the point we've made.

[00:29:37] Speaker 01:
I frankly think standing is a very straightforward basis for resolving this case, in which instance the court would not need to reach personal jurisdiction.

[00:29:47] Speaker 01:
But under the government contacts principle, the general rule, of course, is that contacts in the district simply for the purpose of communicating with federal officials does not provide personal jurisdiction within the district.

[00:30:03] Speaker 05:
Before I get to that, can you answer my question about how one understands an ex-party young suit?

[00:30:07] Speaker 01:
Ah, yes.

[00:30:08] Speaker 01:
I'm sorry.

[00:30:09] Speaker 01:
I did intend to do that.

[00:30:10] Speaker 01:
Thank you.

[00:30:12] Speaker 01:
Ex parte Young addresses subject matter jurisdiction rather than personal jurisdiction.

[00:30:17] Speaker 01:
So it addresses, it provides a vehicle for providing a federal forum to resolve certain disputes.

[00:30:24] Speaker 01:
But it doesn't address the question of where that federal forum would be.

[00:30:30] Speaker 01:
Had Mr. West brought this case in, say, the Western District of Washington or the Eastern District of Washington, we would not have a personal jurisdiction argument.

[00:30:41] Speaker 01:
and ex parte a young would apply and conceivably at least we could have subject matter jurisdiction as well uh... that's why the state has not raised an eleventh amendment argument here as to whether we should be looking at this as personal capacity individual capacity or official all of the contacts that the governor had and by the way there's no contacts really concretely alleged regarding the other defendant miss foster all of those contacts

[00:31:11] Speaker 01:
simply relate to communications with the federal government, and they're all in the governor's official capacity.

[00:31:20] Speaker 01:
If he was simply Jay coming to Washington, he would not be having this conversation with the United States Attorney General.

[00:31:28] Speaker 01:
That's true, of course, of 11th Amendment or of Ex Parte Young matters in general, but for that reason, I think we should view this as an official capacity case.

[00:31:37] Speaker 05:
And so then, he's the state and just doesn't even, we don't even get to transacting business then, or the government contacts assumption, because the state would not be with him.

[00:31:44] Speaker 01:
Because the state's not a person.

[00:31:46] Speaker 01:
That's right.

[00:31:50] Speaker 01:
All right.

[00:31:50] Speaker 01:
I'm done.

[00:31:51] Speaker 01:
Additionally, I think, I'm sorry.

[00:31:54] Speaker 01:
I see that my time has more than expired.

[00:31:56] Speaker 01:
Do you have a question?

[00:31:57] Speaker 07:
Thank you very much.

[00:31:58] Speaker 07:
OK.

[00:31:58] Speaker 07:
Thank you.

[00:31:59] Speaker 07:
Let's see.

[00:32:00] Speaker 07:
How about Mr. Zients?

[00:32:01] Speaker 07:
Does he have any time left?

[00:32:04] Speaker 07:
Mr. Zients, do you have time?

[00:32:04] Speaker 07:
All right.

[00:32:05] Speaker 07:
Why don't you take two minutes?

[00:32:09] Speaker 02:
Thank you, Your Honor.

[00:32:10] Speaker 02:
If I could just briefly respond, I think, to the last point on personal jurisdiction and Judge Millett's question about what kind of action this is.

[00:32:17] Speaker 02:
I think the way, I think official capacity, individual capacity, to be frank, it's been a little unclear how, what the terminology has been.

[00:32:26] Speaker 02:
I think the best way to answer that question is to look at the Supreme Court's decision in Will versus Michigan Department of State Police and what the court in Will says is that an action against an official, even in its official capacity for official conduct, when you're seeking to enjoin prospectively that conduct, citing Ex parte Young, then the action is not viewed as one against the state, it is viewed against a quote unquote person for purposes of Section 1983.

[00:32:55] Speaker 02:
So what I would suggest is that in that situation, if you were a person for one statute for Section 1983, that it's the exact same statutory question, statutory language for purposes of the D.C.

[00:33:06] Speaker 02:
Longarm Statute, that you are a person, the state official, when you're seeking to enjoin, prospectively, that conduct, is a person under the D.C.

[00:33:15] Speaker 02:
Longarm Statute.

[00:33:16] Speaker 02:
I think that's consistent with how this court analyzed the issue in the Ferrara case, where the court did not

[00:33:21] Speaker 02:
sort of jump to what Mr. Even just said of the defendant is not a person, the defendant is a state, not within the long arm statute, and that's the end of it right there.

[00:33:32] Speaker 02:
The court in Ferrara had a pretty extensive, sort of went through a long analysis of an official capacity of defendants.

[00:33:40] Speaker 02:
contacts with the district for purposes of transacting any business for purposes of due process minimum contacts without at all with and then only later getting to this idea of well maybe there's an alternative argument about jurisdiction as a suit against the state so I think that that's how I would analyze that issue.

[00:34:00] Speaker 05:
Can I just ask you quickly what is your response to

[00:34:06] Speaker 05:
law were to disappear in the next month that Washington would proceed at pace implementing its law.

[00:34:15] Speaker 02:
Your Honor, I suppose we may have a good natural experiment and someone could write a good law review article and when we see what happens, what I would say is on the face of the pleadings and

[00:34:24] Speaker 02:
and we're looking at the allegations that Mr. West has and giving him inferences on his favor, you can look at the materials that he has produced and say the state of Washington viewed this as the other nuclear key and if it turns in the other direction, if you essentially withdraw the permission slip, then what the state of Washington will do is something else and it will regress Mr. West's arms.

[00:34:50] Speaker 07:
All right, Mr. Zients, you are appointed as a friend of the court, and we thank you for your very able assistance.

[00:34:56] Speaker 02:
Thank you, Your Honor.