good morning you're on a very good may please the court mr mcdaniels lawsuit against the state of missouri should be dismissed by this  court for two primary reasons first it is barred by sovereign immunity and second it is outside the bounds of articles for the jurisdiction because mr mcdaniel does not have standing to bring the suit and because now that beginning with the sovereign immunity question this case is nearly very nearly on all on all fours with below a case in which this court held that the ministerial implementation of a statute is not in force but action that cases very clear following ex parte young that in forcemeat require some sort of civil or criminal proceeding either instituted or joined by the  named defendant to fall with an ex parte young's requirement that there be some sort of enforcement either about to commence commenced or threatened commencement in this case there is no enforcement just as there was no enforcement  below here all the director does is what the director is required to do by statute which is exercise her ministerial duty to stand one invitation to the missouri attorney general to attend an execution and eight other invitations to reputable missouri citizens i'm sorry reputable citizens to attend an execution that is what director of the party did in this case and so that very clearly outside of ex part young's in forcemeat requirement which means the cases are i'm sorry the suit is barred by sovereign immunity  that the court's question really isn't it a situation in which there is in force point where the the state officer is taking some sort of action civil or criminal against the individual in ex part state has said if you meet these criteria we will we will well you will have a right or an interest in receiving these benefits when the individual plies that would be an administrative enforcement action right when the individual  and of course that's not the fact that we have here if there was some sort of program or some sort of established statutory or regulatory procedure  the director was participating in and the director said you know i'm going to use racial animus to deny all of these individuals that would certainly present a different situation and one in which the court should look very closely at what was  that sort of racial animus with an express statement is not a sort of situation that i had considered it is somewhat similar to the klu klux klan case that cited in the briefs in which the state of missouri you know the adopt a high a sign yes in that case as distinct from this one the state did concede that adopting a highway is a valuable government benefit here of course both mr mcdaniel and the district court found that witnessing an execution is a valuable government benefit which is not something i think part of the court's difficulty or concern with the enforcement language derives from what i think the cases demonstrate which is that since ex parte young has been decided that exception has broadened but in below this court looked at ex parte young and very clearly found with out in force one action and there was noted below and there is none here the case does not fall within the ex parte young section and is evidence in the record to show that bat the new prosecuting attorney would use his office sort of animated by the same racial animus that the prior occupant had here mr mcdaniel has pled based on one year or twelve months of activity that director lynn barty personally engaged in some sort of in a viewpoint or that there was a risk rather inappropriate viewpoint descript discrimination here there's no allegation that  new director and because what mr mcdaniel like the plaintiffs in spooner has pled is that this particular individual has acted inappropriately there must be some evidence or indication in the record preferably in a complaint i think is what the united states supreme court talks about that the new occupant of the office would engage in this sort of same inappropriate illegal behavior to make a determination right in the first instance as to whether or not the plaintiff there was going to allege that the new occupant of the office would engage in the same racial animus here i think the court could if it were inclined remand the case back  to the district court for a special fact finding evidence here a hearing on whether or not mr mcdaniel believes and has facts to plead well pled fact that director precise putting gauge in that same activity  i think this is a this is a step this the sooner i sort of refer to it as the swimmer rule it is a different articulation sort of the movements requirements in article three i think it is a very separate and sort of factually distinct scenario normally the right answer if a case did not have a live controversy like in ring go would be for this court to say it's simply dismissed here i think the right answer if the court believes that it is moot would you are standing requires an injury in fact which is which requires the invasion of a legally protected interest in this case which we did you know has no legally protected interest in being invited to witness an execution administrative state in which an individual can apply and if they me requirements they are entitled to the benefits that would be a legally protected interest here that doesn't exist in terms of whether  terms of whether an individual has some sort of interest in being invited by the director now that's that's different that if an individual is invited by the condemned inmate that situation was described and explained by the missouri supreme court in state extra taylor versus russell it in that case a condemned man had invited someone who met the statutory criteria and the director of erroneous leave refused to allow them to attend because that person was a co crime and the missouri supreme court said when an individual meets the criteria and is invited by condemned inmate the statute says the director shack required them allow them to attend that creates a  so if i understand the court's question the question is does mr dan have a legally protected interested in not being you know discriminated against in terms of applying to witness the execution  and the answer in this case your honor is no and that's because the state because what the director is doing is carrying out a ministerial duty to send out eight invitations so the director is not required to accept applications at  all a large portion of the application form is devoted to pedigree information which the department uses to sort of run back on checks on individuals who might pose a threat to institutional security but tomorrow the director could eliminate the application form and invite whoever the director wants without some sort of statutory or policy or regulatory scheme in which you know the legislature says well citizens can apply and the director shall consider their applications and invite some of their number in that scenario yes there would be a legally protected interest but here because the director of the statute only requires a director to send out a applications fusty application to the attorney general relief and the reason in that there was reference to enforcement through a civil proceeding is because the statute at issue wasn't forced through a civil proceeding but there have been countless cases that where this court and supreme court have have considered actions against state officials where there is no enforcement of a civil war criminal proceeding in several them are in our briefs but roache against so for which was the choose choose wife license plates when the jury when it issue choose life license plate the defendant was the director of the department of revenue and the joint are in forcing the statute even though it's not through a criminal proceeding or civil proceeding and when that same issue was that the u s supreme court and walker first against of the confederacy walker was e that missouri care association versus crime is an example of foster parent the foster parent reimbursement where the director of the family department of corrections has has done indefinitely or for as far back as we know take applications and on those applications ask a lot of pedigree information but also ask you know why you want to observe an execution and are you now or have you ever been a member of an organization that takes a view for or against the death penalty apply nothing has changed the application form is the same the discretion given to the director by the by the statute is the same and my understanding is the permanent correction still it could change in the future there's there's nothing suggesting that it has so far and i actually would suggest that the burden of the party asserting to show that the case has become become mo t generally that carries the burden of showing just the possibility but i mean i think even just the confession that nothing has changed yet is the application does ask for race so there is the danger that race based determinations can be made but  factually that every month who stated that the reason that they wanted to attend an execution was to ensure that it was carried out in a constitutional manner everyone who sort of that was it was not selected  we we didn't allege the point discrimination without any discovery or without asking having the opportunity in discovery to ask why specific decisions were made on various applications so i think it i don't know that we had a have a factual basis to actually assert that viewpoint discrimination is the reason why he was rejected without criteria to determine how how individuals will be selected to be witnesses rather than just giving complete discretion to be and that those criteria be viewpoint neutral rather than just giving complete discretion when well his injury right his injury is not being excluded on the basis of his his injuries being excluded on the basis of his viewpoint from from participation in this program that that the department corrections has created this program i think that that that is what  pleading is that he has not had an equal chance to apply and have the opportunity to witness an execution because because of the discretionary nature of the the road roadside clean up where or where the department of transportation i think that maybe the department of revenue for every on that program was given the opportunity they they could discontinue the program or they could come up with criteria that were objective and did our law viewpoint immigration and that's the same thing we would be looking for here that's an ultimate remedy set up to invite people to apply i think that creates a right or at least an opportunity a benefit that the state is providing and that has to be provided without discrimination if the one and it might not even be an invitation might not even be an issue if it was if the statute specified certain government officials who were supposed to attend but what has happened here is the department corrections specifically ask about membership in organizations that are for or against the death penalty in the application where we are soliciting information from which to make the decision on  be ultimately decisions will have to be made about who is accepted and who is not and not everything will rise to the level of it where it could be litigated as a claim but what we're challenging here is not when they open up the application process yes that's a it's a government it's a government benefit like like the license plates programs like the adopt the road programs carried out ourselves williams in august it's my understanding that the director who don't take an office days or a few weeks before january used the same forms because of a lack of time to implement new policies and use