exceed twenty five minutes per side mr weiss you may proceed for the appellants morning your honour's my name's chris we still represent the parishioners and the appellant's in the roberts case this case is not about science it's about the st amendment and the two are not in conflict even though the governor wants you to think that they are the facts are fundamentally not in dispute this case began when our three clients on the holiest day appear on the christian calendar attended easter sunday service and were met with a state police response which was directed by the governor state police officers placed notices on the windshield of our client's vehicles and took down their license plates mr waste mr we start pinioned so quite a bit of familiarity with the background we've had a couple occasions to look at these facts maybe you can help us deal with this lucas question you know i guess the point that judge bertelsmann ruled against you you of course got the stay pending appeal which was a published decision very focused on the legal issues the state not only changed its policy but didn't appeal judge hales ruling objects hale eventually ruled against the state as well they did appeal  that so there definitely is definitely the case has one wondering whether we're being asked issue an advisory opinion which seems particularly odd since we already have an opinion which you know i would have thought your clients were comfortable judge hale filed a motion june th two thousand and twenty and that's at page id sixty five thousand nine hundred and sixty eight in that case where they asked the district court to dissolve the injunction and argue that there were allegedly outbreaks in church that they needed the leeway to re enact the ban and the governor has been publicly out as of even a few months ago asking conducting and not to attend church so there isn't this record and elsewhere an apparent intention to reimpose the band asked the injunction nd these plaintiffs did terisa sation doctrine also applies very clearly in this case there is nothing to keep the governor from reenacting particularly absent an injunction the ban and here is the burden to prove that and again we're dealing not with a legislative change with an executive action putting this you had a missouri supreme court decision construing there blane amendment which require discrimination against faith based and he said she had a state constitutional provision requiring discrimination when ever the state did anything not just that policy anything so clearly that's quite a bit different from the situation but here's the real thing that i've not seen any current grapple with that i'm i find most complicated about this you know if you look at the moon this case is when they talk about clear sation clearly not going to happen again and what they're referring to is the same legal issue so like the easiest way to think about a statute that says faith based people can't do this and the statute is taken off the books but there's a possibility it will be put back on but the key is it's a very clear rule faith based people can't buy groceries whatever so it's something really clear what's really tricky about this case is there are two seriously shifting items even if the state did something mandatory in the future i think it would utterly bizarre if it was exactly the same order that was litigated in front of judge hale and judge her burleson i mean the states are a change like the policy four times in different directions if you look around the country there's so many different permutations of restrictions on faith based gatherings and that's only variable one variable two is this whole inquiry is about the comparative and whether there's discrimination against faith based entities and we know that that is also a moving target why because it shifts every time the state does something and if you look to the other states same thing so whether it's concerts working essential services not essential services there's like a little one thousand variables so i find it utterly unlikely in fact i would consider it if we somehow got ourselves back to the exact same order in the sense of what kentucky was prohibiting fake grapes faith based groups to do and the comparatives were exactly the same as at the time of the helen bertelsmann or so that's that's where i'm just i can't see it so you got to help me with that your honor i think i think we can look and i realize perhaps an ordinary case that would be right but there eight about where the governor is indicating an intention to leave have the leeway to re enact the same band so i think really you're in your honest assessment you think if there's a new band it will be exactly the same both in terms of what it restricts place of worship and doing and exactly what the other groups are doing or not doing that's your honest assessment your honor is hard to predict the future with any degree of based on plaintiff's lawyer and not the court you've got written you get to college decisions on the issues no one's asked us to withdraw those what was the  anxiety your honor i think the anxiety again is the by the way if if we do not prevail here there is no there will be the i suppose no injunction that's been entered the prevents the governor from reenacting it and i think the governor  repeatedly filed pleadings indicate his view of the law particularly with some injunctions pending an appeal decision from the supreme court that he is not bound by those published decisions and i think when you look at the entire picture including his pleading in the maryville case to try and withdraw the injunction there is there is a real threat of ram posing the same ban it is it exactly may have be exactly the same you know i maybe but maybe not but that certainly i think up leaving is an indication of what he's thinking and wh he's intending and i don't think we can you know when somebody tells you who they are i think you have to take their word at it and the governor was going to i don't want to prolong this your way over your time so i don't want to prolong this much longer but let me let me focus in on just a slightly different way in your brief you you want to reverse the judgment of the district court denying the preliminary injunction minute we either in this case or the other case affectively already there's been no instructions the district court or the injunction so i think the simple answer that is no your honor we're not there with this car procedural  know the consequence of that does that cover everything or not if it only covers the right to travel your honour's oh i see so it has to be someone outside the area it's somebody  well you know the case in either direction where the types of quarters that were being challenge were so slew him and the test for unconstitutionality had this compared or the other side of the pair was very fluid as well that's just what some bizarre to me you are there always fact based action circumstances based scenarios i'm not sure that there's anything that's that's exactly on point but i would submit that the voluntary sation doctrine certainly applies in this case the governor has a very very heightened burden he has not remotely met particularly with his pleadings that he's filed maryville below to try and vacate the injunction ok thank you we'll hear from members next help me out you're are you i don't know what you're saying are you complaining about the current order or you complaining about the prior or i'm complaining about that or that begins in march the th to the present none of that essential these continual directives in fact this court issued is just a bright eyed lot of the i'm just not understanding exactly what you're saying today i'm right that it is a different threshold of restriction for a faith based services right what is it like thirty three percent occupancy some like that thirty three percent occupancy but no restriction on the internal non religious activities that have never changed refile your claims and if that's what you want us to decide we'll decide well your honor in addition to that the reason why it's not good is eleven days after this court issued the may mark the may th order on may twenty the effect e date was the requirements not guidance requirements for places of worship this says in addition to the life sustaining activities which this court addressed on mark major night places  worship will be expected to meet the requirements below in order to reopen and remain open and that's where it has a thirty three percent so eleven days after they continue to go back to the same well and continue to treat a discriminatory manner compared to the non religious activities both internal inside the church itself and extra with compared to other external non religious commercial retail liquor grasping your argument you want us to decide the validity of the order the judge hell already granted you relief on the grounds that the state has not given up the possibility percent threshold all right that's the way we would have to think about that case if you think that is a helpful way to think about this issue that's your call but i must say it escapes me it seems far better for you to let the move miss fall off and then litigate the thirty three percent which is a lot easier than the possibility of ninety nine percent but that is the way we would have to treat the argument you have just made any differential treatment at all violates in that phrase that these continuing orders that come out every few weeks every thirty days in fact the life expectancy of any order is probably old at thirty bags there's no way that we can actually really get this and we'd be constantly and  plate but that he has this claim to have and he will not go back to discriminating against religions versus non religious gatherings which is that who are essence of this case and choruses of this court rulings has different executive branch off or service playing games there's no doubt we have to acknowledge the games they're being clay but i just don't feel it that lines up with the record every move that has been made follows one consistent pattern placing fewer restrictions on faith based groups st it was outdoor then it was just indoor then it was thirty three percent and then most recently when there was a spike it was an admonition in a voluntary way so each action has been in the direction not of games playing to get around things to get after you it's been lightning the regulations it just seems like a very funny fact pattern to accuse him of quote bad  your honor i think it's that say eleven days after this court issues and border i p a saying specifically that churches need to be treated like in terms of the social distance and cetera as life sustaining entities and they go back and they don't trust them they say yes life the same but here's a fish no requirements they disobeyed this court's clear directive and they've been doing that from the very beginning this is the same governor who sent out law we continually never get relief because every time we file suit they would tweak it maybe move from thirty three to thirty five percent or they might tweak it here and there but what they won't do is allin the night the disparaging treatment between church es they say on page eleven of the answer for it is unlikely but every person at page fifteen doesn't allow an honorable i play decision it says the state cannot hurt an individual from attending church against their will under the establishment's cause that's not unlikely it's not hesitating it's quite clear yet that's what they've been doing either totally banning it as a beginning or placing additional restrictions on appeal because they want to go back they've actually stated in their answer break that the pandemic is fluctuating and they want to go back to additional restrictions if this court does not grant the p i here there's no question reversed and the pm should issue didn't you when the for sale eventually we here's what we did your honor this court in marysville issued an order after the make to decision and asked the court to address the i in marysville judge tails decision even though the state's not appealing it so that's bizarre but let's just do what you want and you both seem to think that someone court because oh my gosh the governor is always they always have a green light to ask for the dissolution of the plenary injunction they could have a great right to ask for that but no this would be a that's when facts and circumstances change but if this court gives them you that's really how you see the situation not that this panel would do that but i believe that that's what ultimately happened the p i gets dissolved the governor then goes back to these mandatory requirements and then begins to impose criminal penalties if you don't have all of these requirements as quickly as they do issue these requirements or guidances or change the orders every two weeks every four weeks which we already know he wants to impose stricter requirements he just did on certain restaurants and bars in mr sipe district neighbor that the p i has not been dissolved so you want to issue a ruling in anticipation that something might be dissolved that if it was you could appeal the governor here is arguing that this court orders are unconstitutional the governor has argued that the order p i below is unconstitutional citing south south pay doesn't give any president had all the little sisters of the for the winner to be appealing ok so that's i think i hope we can recognize or something odd about your case that effectively the winner is appealing and i'm just trying to sort through what are real concerns of yours and what are not if we say the quote appeal is moot because it's the losers that appeal not the winners the state chose not to appeal the appeal is moot that doesn't make the claimant junction ok let's just say for your that's what we do in your case tell me what risks there are to you given that if the governor comes in and convinces the district court to dissolve the injunction couldn't you appeal that ruling y moved to the side and we go back and the cia is completely dissolved now we still have some of the four issue that's never been around maybe and we're back up here again and then again so one of two things either governor excepts i mean if he if he if he can just of the jurisdiction i get that but i'm just dumbfounded that you want to understand something where you prevailed vacated and then reinstated so it comes from us rather than from the district court when nobody other than you is arguing about well what the governor is arguing is that the entry of the orders by this court and by the lower court have been overruled by sound that that has years amendment to the mass gatherings order mr cain what's your answer to the point well i mean there's two things that the other side has done for it has to be pretty clear that it's a little bit i mean i think you would acknowledge that it's not worth fighting and then they point out you're trying to dissolve the p i in the marriage bill case and bat why would you do that if you didn't want to reinstate the order so how do we how do we deal with that while you're on i think the governor's position on dissolving those piazzas that we do believe we've got guidance from the supreme court and we certainly got persuasive opinions that we think the district court should consider in dissolving the form shopping no your honor we we think this court we think the issues are moot and we think these issues could come back up to the court on either different issues under different circumstances they see what the governors it's him thing to do is have the district court reevaluate that and then potentially come back up to this court with their opinion addressing those cases and potentially other cases that are rapidly developing during th code emergency so you've you actually seem to think there's a case or controversy namely what the law means when it comes to free exercise and how much latitude your client has when it comes to new restrictions on searches wh we think there's been an issue presented now with the supreme court opinions your honor but we don't believe that that creates a case or controversy regarding the march th order that we entered and that has been present just an issue just an issue this is an issue that's correct your honor we think any that's very whether you are vigorously defending the merits as opposed to just saying if it's not moot then we lose seems to mean you're vigorously defending the merits because you're saying then our previous opinions are not good law anymore and combined with the other two factors to the governor it's not a legislature it's the governor and also the timing i suppose is a little suspect as the litigation was already ongoing and why i before the six circuit where he was ruled against or before he was in joined at all and i do want to specify the litigation had been filed right i mean we've got case law that suggests that when you act in the face of litigation even if you haven't lost anything yet that that puts the timing a little bit suspect i agree that he announced in late april that this that essentially i think what you're going to say is there was going to be a sunset on may th right there was something down the road he was treating religion with retail and therefore it looks more generally applicable not like a response just to a religion lawsuit right but the timing is a little bit suspect right i mean let's say it that way slightly in your favor still it's the governor not the legislature he can change it any time and also what about this vigorous defense i mean you're not giving up the big the defense of the of the that the that the injunctions improper right in fact you're arguing just the opposite that's true we are we are defending the governor's actions in this case you want to begin just back to the timing briefly i do want to and i don't know if this is clarified in the record and part of that indiana to begin a concerted effort to reopen services and cultural activities within the state and those those efforts were ongoing prior to april th i don't think anything specific was announced until that  april th date other than that collaboration's were going we had announced the phases that we were going to be that things were going to be done in phases and have gradual reopening so these plans were in the works i'm innocent i did or how to reopen our again just judge hale granted the preliminary injunction below so we think it's appropriate to go back and get a ruling on the merits from judge panel and judge and ultimately to bertelsmann and then these plaintiffs appellants can or the governor can appeal that to this court when they see fit and when the record has been fully developed mr payne let me let me ask you what still confuses me then based on what you just said and i'm looking at the brief that you filed in the at the lead in the maryville baptist church case and it says for the reasons here and stated this court should affirm the district court's denial of plaintiff's motion for temporary restraining order i mean that ship sail reopening of worship services and i do want to clarify because i think judge sutton mentioned this earlier there the guidelines that are currently in place suggest the churches should limit capacity to fifty percent that went into effect on june th so there was a month to thirty three percent and now the guidelines again they're not requirements that they have to meet this but the guidelines are they should be open to fifty percent since you sent so let me interrupt again because i still don't get it if you were to say that i think that you want us to dismiss this injunctive this this appeal because either the orders been replaced or or  appellant's one which is what we're talking about earlier i would get that but you seem to be going on and say the whole case is moot in that we should see us going us to tell a district judge to dismiss the case or not yes we do believe the underlying claims are now move based on governor bush's actions so jane that i have to believe if you're asking us to grant you yes your honor now just on that point can you say on the record as an officer of the court on behalf of the governor that there is zero chance the original order the one at issue in both cases will be reinstated your honor i'm hesitant to say that there would be zero percent chance i believe stated that it would be very unlikely dumps to ask you why so i thought it would be zero here is why it's not so much that there won't be spikes or that you won't need authority like i get that quite easily i thought it was  ero as i couldn't imagine a world in which the exact same restrictions were imposed on churches are we talking indoor or outdoor for example and number two that the comparatives were going to be exactly the same that would strike me as utterly bizarre i know crossing in or international dateline some like given all that everyone has learned since and all the moving parts so that's that's why i thought the chances would be zero at the exact same order would would yes your honor and let me clarify because you do bring up a good point i do believe there would be zero percent chance the exact same order would be entered and certainly a zero percent chance the exact same order would be entered under the circumstances in which they were on march th how about how about zero chance that there will be any criminal prosecution supported by the governor of the people that had the stuff put on their windshields at the outdoor service at marys yes your honor there was i mean no one was prosecuted under that but no but there's a two year limitations period so that's why that's that's true on a yes i think i can i think i can clarify that from my that there would be zero percent chance that anyone would be prosecuted the governor has said that in his far as we have i think we're playing word games here because can you can you give us the commitment on behalf of the governor that you won't really impose an order that's actually more restrictive on churches if the governor determines in the exercise of i can't say confidently that there would not be an order that would be more restrictive and that's certainly asked of this court's interpretation of that word or in its in each of its percheron opinions addressing the injunction pending appeal and i know there was some disagreement i think we pushed back early on and it was never our intention the the mass gatherings were applied to outdoor drive in services and once receiving that order i certainly understand this sport wanting to make panel case whatever judge hale did it could be appealed to us so that's that's path one for resolving that part two is i think the broader argument you made which is we should be dissolving it and sending it back to the require the district court to dismiss these claims for lack of jurisdiction i'd be much more comfortable with that if i wasn't dealing with an advocate who thinks the law has changed and thinks a what we think is persuasive guidance from the supreme court on three occasions now they have denied to enjoin applications for and after they have denied applications for an injunction  the most relevant thing was they didn't touch your cases that's true your honor we have not we have not taken those cases up yet and i'm not sure if we would but i mean those are strategic decisions we would eventually make and  think we would if we would prefer to do that with the full merits decision going forward and that's certainly in the context of how we view this over one thousand emergency where we're attempting to reopen and we're learning more about every day and how best to allow people to resume normal activities while still eliminating sort of these the risk element out there but you seem to be making an argument that that would preclude ever getting to a full merits decision what how could we get how can we say the entire case is me without that issue being resolved the nominal damage issue we couldn't do that could we know your honor but i think you could give direction to the district court that the  honor i would just briefly like to address the underlying issues and just you and i know the court's aware of these but we do believe that we have received guidance now from the supreme court to address these issues that the court should consider if it chooses to reach the merits of this issue on may th the supreme court issued denied an application for an injunction in south a united pentecostal church it's of it was a very similar order that ultimately went up to the court and she just looked confused though both of the supreme court cases were not total bans of and percent right there were twenty five percent and fifty percent then they were at the time they reach the court your honor but california's was initially a total ban but by the time they reached the court i didn't think they were total behavior it's that's true  treatment of what the plaintiffs here allege is the similar disparate treatment of allowing greater groups of people in non secular activities such as offices grocery stores laundromats as opposed to allowing fewer people in church and that was precisely the issue in the cavalry chapel valley case and what i think is of particular interest there is justice alito in his dissent recognizing the deference that he believes is owed earlier in this pandemic to the state governors they were addressing these he recognized the end perfect imperfect lines that could be drawn but what he said is once we move in get further into this and demick we're going to hold them to a higher standard and i think that might be the line that they're trying to draw by applying jacobson and applying the stricter scrutiny that apply in other towns outside of an emergency and what's important to remember about this order your honour's is that it was entered on march th less than two weeks into the declared state of emergency in kentucky it was entered at a time when we did not have adequate testing in the states and no to have certainly in a positivity rate it was internet a time we had a lack of hospital resources medical resources relax the p p to adequately supply hospitals or other medical professions during a surge it was it was entered at the precipice of this emergency and because of that we believe that now there is guidance from the supreme court that the jacobson standard should apply and the deference owed to the governors under that standard should also apply to these early measures mr mean one way to look at it is the case is just sort of morphed from march th two to may th and they're up and they're making other complaints that are not i don't think they're probably before us they're making other complaints about the they have to file a new case dealing with the may th order the effect of which is every time you change in order the old or the old case goes away and they have to file a new case i am in this case your honor that is what i'm arguing but necessarily only because of the may th amendment that applies to churches it's moot because we amended the actual march th order to remove its application to faith based worship services the may th order is vastly different than a march th or it is a list of guidelines in requirements that were put into place after working with it but if if the key here in this distinction you're making is the absolute ban on th for getting the questions that the appropriate questions that judge sutton asked us to whether a new order would be it would be exactly the same as an old order to this day you are not willing to apply how the if your honor it's moot because i mean in terms of the cable of repetition you have evading review exception to the minister after the supreme court has directed it should only apply in exceptional cases and moreover i think governor is behavior here and actions taken since the march one thousand border indicate and do not give any reasonable probability to that word or will be entered again i think it's different to so if there's no if there's no reasonable possibility that it would be ordered again why don't you just say that that you the governor is giving up on the authority to to to to reimpose a complete in person ban which is the whole basis of why you're saying this moot i think the reason i'm hesitant to say that your honor is the nature of the covert emergency that we're in these ass ability of it going forward it's it presents a difficult situation for paine you know if we're going to go back to the beginning and you know this kind of a pure approach the other side is recommending in your ambivalent about  i don't know why we don't include the ban is applying to outdoor services i mean the the quote clarification was just no different from changing the order and if you can if if everyone's going to take the view that has to be crystal clear one hundred percent sure that the same thing can't be answered as far as i'm concerned if you go in that route the outdoor ban is still in front of us so i don't know what to say but it seems to me that's how one has to look at it  you can say at the time it was unclear that's why are we original ruling dealt with it you clarified it didn't apply because you didn't apply is no different from changing the order and no different from the idea you cannot change so i guess if we're if we're taking on the day when we might as well figure out what the law is today in light of these certain aisles i don't know why we don't go back to the original impression including from judge walker that it applied outdoor well i thought i would clarify that i believe the judge walker opinion was in that case there were statements from the mayor that he was going to enforce the order as outdoor drive and services but the governor was very clear in every subject statement he made so so be it that's not that's not how this works if it were based on governor statements we would resolve mode s just give us a statement and we know that that alone is not enough some just telling you the logic of well it wouldn't be so bad if it were moot because we can have a reassessment of the law in light of these search certain aisles includes going back to the outdoor that's what i'm saying so it's you're you're the one that you're struggling struggling to horses here and you know if that's your call but don't be surprised when all the sudden one of the horses is not under you at one point harcourt but that's not what you're doing you're saying i want to solve this new decisions we'd like to get a new impression of what our law to it is the governor is and this is what happens when you're right to  he is not my client is the boone county attorney there's no way that this particular alleged injury that the plaintiff suffered by virtue of the placement of the notices on the windshields of their car on easter sunday in bullet county kentucky can in any way be fairly traceable to boone county attorney nice located some one hundred plus miles away from where this church is located another is the one who decided issue these orders the kentucky state if they were to are technically wouldn't they be subject to quarantine in boone county and so if they broke that quarantine wouldn't wouldn't bob have to prosecute them at that corner or would that be somebody else here reddick lee but i want to start with the notices themselves judge the notices themselves placed on the car there in the record reflect that the point this would be contacted by the local health department when you're reading that on your windshield is you're standing in the parking lot at merville baptist church it implies that would that notice you come from the bullet  with taking any type of enforcement action nor is there any evidence or allegation that he was about to commence proceedings which are absolutely cheap plaintiffs in their reply brief at the very end try and just told us his client's not going to enforce the quarantine order or any violation of man or her why isn't that why don't you just say yes your honor we filed this case as a class action not simply against mr nice but also against the other county attorneys mr nice deals specifically with mr roberts does not deal with the other two plaintiff the named plaintiff one of whom is a red resident boa county the other one is a resident of believe a fayette county and the concern that we have is that although it at boddam i suppose are all an act of concert with the governor and so if there is a primary injunction that are you know perhaps that's good enough believes that he may have your honor at some point to just help me out maybe if i have to i can go to others that know the information if that statewide injunction is still in place in the state has an appeal that injunctions pending appeal in this case to prevent the possible prosecution even of mr nice may not do it someone else another county attorney may do it the governor is not necessarily the rock but mr nice is the only county attorney behalf of all other county prosecutors in the state of ohio regarding that abortion ban it was an issue in that case so yes there is precedent for that void of edge cases one of those cases mr reese can i ask a question that i'm i'm really directing everybody  honestly trying to think through a way of handling this that accounts for a lot of different perspectives on the case tell me how you react to this i know it's not getting you everything you want and mr payne i'm going to be interested in your reaction to this is well the reality is the governor the governor saying he's already said there's a zero percent chance the same order is going to be reissued and i'm quite confident that's accurate but at the same time they got hurt does think the laws changed the governor is suggested they may want  dissolve the judge him no injunction and that's that's their call they get to decide how they want to do this but that does the gentlemanly create a little concern on your part it makes me wonder if the best way to handle the case is for us to say in the burleson case that the crimean junction is inconsistent with our purely legal ruling on the stay pending appeal and there's a lot driven decision it's very hard to understand how that would change so we shortly say that's that's over ruled the plumbing junction so that that that just disappears or i guess you would say an approving sanctions entered consistent with our stay order that leaves in place  and that leaves the state in a position to go to stop them and if the state wants to dissolve them they can dissolve them on the grounds that it's utterly moot and they're not going to do anything again and it would then get appealed to the same panel if you're unhappy with that or the district court judge is allowed to say i'm changing my mind because of the intervening search decision cert opinions again if that happened it would be appealed back to us what resolved by both district court judges and in light of you know i've said the governor doesn't have to move for to be dissolved and or if he does he's allowed to say why and that will inform the movement's question so what's wrong with that acceptable as far as we're concerned well i was happy to tell you said it was going to lead to a new lawsuit that was not the direction i was going mr mr cain what's your reaction to that well we because it is important we think to point out and i don't know if it's been clarified yet if the plaintiffs in the roberts case filed a lawsuit because of what occurred at maryville baptist church didn't they filed it as congregants on that day of may baptist church think it may because as a one of the plaintiffs because these are regular congregants i don't know that it would as to the other two well that would be a very helpful thing to clarify i mean it seems quite sensible to get this down to one case and not to one district court judge not to and in your honor we did file hours prior to the church filing on behalf of the congregants for whatever that is where this was the roberts case was the st case was filed in the a base your clients want to go to the judge that denied relief for the judge that granted really your honor i think just given the posture of her i think our preference would be that this court enter an order reversing judge that there's just a bunch of procedural problems and there are some more serious moving this or many more difficult movements questions and really this would be left for the district court judges to look at in the st instance the only thing we probably say is that the appeal was really not a case or controversy in the hail case because you know the state is the one who lost and they didn't appeal so that's the only that would be the only move this ruling everything else would be leaving it on the table the only thing that i w overrule the march th or march twenty five they may make some exceptions but the court still there so we can litigate that and likely will be back up here but the core issue is the legal issues that they continue to with an instruction to enter the injunction would be appropriate as far as we're concerned well i mean the one thing you're doing is you're making are like a lot more difficult for what it's worth it's a lot easier in the health case to resolve what i think is a pretty simple issue send it back and just say this the appeal the appeal is moot as opposed to the case being and it strikes me as not a very heavy lift for mr we see in mr payne to get an agreement that the governor or whatever else he's going to do is not going to violate the hail injunction when it comes to the parties in the nice case that doesn't strike me as a whole lot to ask unless i'm missing something so why don't the two of you think about wh that's possible is that really makes things a lot cleaner when it comes to getting it back in front of the district court which seems to be what everyone is ok with it's not compromising anybody in the end around it's not getting a prelim a ruling crema surely from us like i said it's pretty easy on rudeness crowns to say the appeal in the hail cases mood and therefore if that is properly back in front of judge hale and the state chooses to dissolve seek a seek to dissolve the injunction they can and just simply agree among yourselves the stakes of that apply to both cases that i'm i'm really struggling with why that's too much to ask mr payne is that too much to ask i know you're on and i apologize i don't know that was so noted i don't apologize i mr weasel out of the two of you talk and let us know if i'm missing something on that point your honor the only point i would make is this that the church issue is not the only issue in front of judge bertelsmann there's also a travel ban issue that's in front of judge bertelsmann they have previously sought to dissolve and i suspect there's going to be more litigation on that travel ban issue going forward and so i guess merits of this church issue with he said look i'm going to wait for additional guidance from the the six circuit on this pulmonary injunction before getting to what i'm going to call the permanent injunction issues or that phase of this case so for that reason also i think we may not it may be easier for us to to get the reversal on that and i think it could be i don't think it's a heavy lift for this court to say look we've entered an injunction pending appeal we think that that law's correct you know the district court's judgment is reversed on that basis and then to allow the parties to proceed with a permanent injunction phase in in the bertelsmann case to include the travel ban and the church again i hear you and i still like you to see if there's agreement that the hale order with respect to the march th order toppers the plaintiffs in the needs case let us know it's my assumption about that is incorrect yes you're all right i think u order and that hasn't been changed so it's still in existence so he incorporated something that this court did not incorporate in fact limited to a license stating activities on the main nine roberts decision with regards to damages we can have a nominal damages cleaners up separate to for just a nd so you're saying that that's before us this morning and we need to resolve it well that is  yes because not have you or anybody else appealed what you just said that has not then appealed your honor but the issue of this continual morphing of what you have indicated you know evidence that hasn't been appealed it's not before us pretty soon that particular p c i if not before us in the sense that isn't separately appeal but it's a continual morphing of the orders that you mentioned with regards to the nominal damages that was asked the governor did not raise sovereign immunity for the section one hundred and eighty three nominal damages claim it was only under loop up and under state law which is the kentucky religious freedom district court what i fear is that we will continually be coming back up here because every time that an order is entered and we challenge it that word will be tweaked within two weeks specific restrictions of the original march one thousand and work twenty five or it's whether they're going to go back to the original discrimination but all the way real results in these permutations of these various restrictions internally as well as internally and there's been no and in fact they say there's no zero chance to go back to that exact written order that's word games they have not denied that they want to go back in some form they want the freedom to do so i go back into restrictions that continue to treat religious activities differently and non religious activities and that court is still here and that was acknowledged by the governor's council even today as well as in the briefing so with not the work you've done and needs tricky cases and in difficult times we're really grateful and thanks for answering all of our questions for which we're especially grateful thanks so much it made it and the