the district court misread the complaint and why the younger doctor does not bar federal court jurisdiction my partner will be discussing the first amendment and the city's recent supplemental filing this case is about the suppression of first amendment rights  intimidated from filing ballot measures due to harassing litigation by the city the district court mr read the complaint because it only saw this cases about appealing three state court decisions instead this case is about damages for not being able to file petitions in the past and injunction to prevent harassing litigation in the future let argued in her complaint that should have been free to exercise her political speech but for the unlawful actions of the defendant the state trial court in nevada found that the city's bringing a four separate lawsuits as being quote to discourage any other initiative petition seeking to set policy for the city there's an e r one six two this violated rule eleven of the nevada rules of civil which also is identical to ruhleben of the federal rules of employment let me jump in because this is a very complicated procedure history i think we are familiar with it you mention that in her complaint she was targeting what this is very important here what was she complaining about in her complaint let's complain about that she was not able to file a ballot measure she was chilled and she was unable to file and she was afraid if she would file ballot measures she would be sued by the city ok so to the extent she's complained about the future you mention that she 's worried about future losses yes how do we have jurisdiction over that do we have a just a civil controversy over something that hasn't happened yet you want to hear been four separate cases where no let another citizens have been sued and she's afraid that if she does file again a suit will occur in this court and will soon vs in two thousand and ten a plausible and reasonable fear of prosecution is sufficient for rightness to ensure that an injunction can be issued here she's afraid of she does participate in the political process by filing a ballot measures that she will be sued and seem to have been inhibited so far your honor she has not found any cases since two thousand and ten since these three individual cases were brought and she is afraid at this point if she does file she will be sued again is there evidence you want to participate in trying to get other ballot measures or measures on the ballot since then but for this perceived chilling effect she has been very active there's there's evidence that she you know she's very active as a citizen in trying to file ballot measures jellicoe specific site where she has you know petitions on line that she would have filed but she is afraid of she doesn't gauge in the process she will be sued again because of four lawsuits that were brought the district court therefore erred in dismissing this case under younger because no let's not try to interfere with any type of state court proceeding that is ongoing or otherwise beyond that younger only applies to three types of pending state court proceedings the first is a state criminal prosecution which is not a political here because all we have are four challenges to ballot measures the city could have pursued the challenge the ballot measures via chapter forty three where they would not have to name any individual citizens what they chose not to instead they sued no that in and other citizens and four separate lawsuits the second prong of civil foresman actions akin to criminal prosecutions also do not apply here for example like a public public nuisance action there are no underlying criminal statutes at play and that section is not a political as well in the third type of proceeding are civil proceedings causing interference of a state courts additional function like seeking a federal court intervention in a state court contempt order which is also not present here therefore because no that is not trying to interfere with any type of state court proceeding ongoing otherwise and second because this is not the type of proceeding towards younger applies the younger ducking cannot bar federal court jurisdiction thank you i do have one question and i'm not sure who should be addressed do it very early on in the opening brief there's a statement millette does not pursue her claims against city officials in either their official or individual capacities yes how are the city officials involved i mean what's left if it's not official and ms gray the please the court of first address the first amendment issues and then the city's recent filing this court should determine that boulder city violated no let's first amendment rights for two reasons first the nevada supreme court  initiatives because these actions were brought by the government and because of this prior case london data this constitutes a first amendment violation that no one has yet to be compensated for let me help me with putting this issue into context that your client filed a summary judgment on that issue to the district court a motion for so so the city hasn't even had an opportunity to respond to the to the request you're making to us here our argument is that the city is precluded from challenging the findings related because of the holding in the two thousand and fourteen decision by the nevada supreme court the court determined that the city's practices did have i did violate nevada anti slapp law the city then should have only got a world of issue preclu arguments to be made someplace but i'm not sure why they should be made here in the first instance these should be made here in the first instance your honor because she thousand and fourteen about a supreme court decision did determine that conclusively that the city's pattern  that any implication of slap slap lawsuits does implicate the first amendment here we have a government actor bringing slop suits against political citizens citizens who want to be involved in the political process and the factual questions are not in estoppel should apply to the two thousand and fourteen nevada supreme court decision in addition this court should to decide independently of those the city strategy was not the least restrictive means and there's also issue preclusion there for the two thousand and let's political speech should be guaranteed political strict scrutiny and the city has to prove that the burden on speech is narrowly tailored to serve an overriding state interest here the city's pattern and practice of suing know what four separate times was not the least restrictive means when an alternative measure exists through nevada revised statutes section forty three that section allows the city to instead post notice that the initiative is going to be challenged and citizens who want to be involved can come in and to beat the initiative instead of having to be dragged into court  there's a motion filed there are clear exhibits there was argument made as a summary judgment why i don't think that's there really has been a pleading filed in this court like that has there been so far no your honor but the prior holdings in this case make it unique additionally her federal case has been pending for five years she's an elderly citizen and sending it back to the district court on remained for the substantive issues would present additional procedural hurdles and additional opportunities that might create a pitfall for a pro se complaint pro se litigants in the lower court level when in fact the issues can and in this case be decided in the first instance given the the clear collateral estoppel no i appreciate the act that's the equities why we should i'm just trying to think normally i'm used to dealing with a summary judgment motion there's a motion with exhibits and the deposition testimony noted and we just don't have that really before so i know that's true your honor but that type of testimony in both slap actions and first amendment actions isn't always required here we have plenty of documents on the record indicating that this this is the city's practice we have the nevada supreme court saying twice both that the city's practices violated nevada nevada rules of conduct and were done for an improper purpose and there than about a supreme court even said we're done with the intent to chill future political speech and then the two thousand and fourteen holding that these practices violate about anti slapp law both demonstrate conclusively enough to make this case a case where the court should not mu should determine in the in the first instance that her rights were violated to want to reserve the right to your time  city for a single claim for one hundred three first amendment violations so one thing we pointed out in our answering brief is since they made that concession in their brief now they have to go the further step of  i haven't really articulated how that goes and i realize they've alleged pattern or practice but they talk about four lawsuits the first lawsuit she definitely was named that's the one we prevailed on in the nevada's supreme court went to the u s supreme court we prevailed in that case and that's where we got the distinction where the nevada supreme court confirmed hate boulder city if you have an administrative issue the citizens aren't allowed to pry into that but if it legislative issue that applies to the entire city then they are and so with that rule we took three additional issues and said ok let's file declaratory relief complaints three judges looked at those three different issues they all ended up denying the anti slab motions that's we see in our supplemental ex urbs where those were three were consolidated from the nevada supreme court it was in the nevada supreme court a long time because there was a cha there was a legislative fix to the anti slapp statute in chapter forty one of the nevada revised statutes and what the legislature did is they said ok there's this metabolic research case that came out from the ninth circuit commenting upon our anti slapp law saying that it's appealable and we like that interpretation so we're going to make that clear and the second fix that was put into the statute was cities like boulder city you cannot sue people for non damages or just declaratory believe what you have to do so that would include no damages claims no declaratory relief claims so that was put in a legislative fix since that legislative fix there's you know there's no implication that the city is going to file any more lawsuits in fact what we put in our twenty eight j letter was a new lawsuit that no let filed against boulder city and so and that was recently affirmed on the twenty fourth of march by the on bank about the supreme court that the lawsuit has to do with the same issue which was in the trio of lee of lawsuits on whether the city can incur debt for municipal capital improvements up to a million dollars without getting voter approval on every single expenditure so the boulder city had originally tried to do that on its own as an administrative measure nevada supreme court says no that's a legislative measure so the city actually went out and says ok well let's put it to the voters the voters approve that now let's suit us to try to turn that around and then the supreme court says you can't have it both ways if if you're supposed to do it boulder city legislatively then just let us do it legislatively mr eccles let me ask you a common off the wall question you've argued before this court many times here and experienced advocate seems like this kind of cases like the hatfield mccoy's and it's never going to end boulder city is going to exist unless it's dissolved and there are people who don't want boulder city to change they want the way that it is do you think this will be a question asked whether side they can consult with their professor we do have a mediation office at this court this may be i may be crazy to even think it's possible here but do you think that there's a way because i mean no matter what we rule in this case i got to tell you i think we're going to you guys are going to back in one form or another someone suing someone coming up would that be something that you'd be think about would be helpful  i think at the i'm not sure on that your honor i know the city's paid out about two hundred thousand dollars in attorney's fees on just these issues that we're talking about that are on the record to  as far as staying the case going to mediation you know can we get these parties together i honestly don't know i think we were exempted from mediation when the case came up the first time because she wasn't represented right but that that maybe that's changed now i'm just asking again what we may do i just think i thought my head that our panel could issue an order to the parties asking him you know in fifteen days state your position on mediation with him once or because i have to say this is not going to stop i'm adamant i'm not trying to be like solomon up here but i just tell you this is just going to keep going and i they're going to kill each other so i'm just wondering you know i agree with that on your honor when i was looking at all the papers i thought ms no let is probably going to be just a permanent fixture in boulder city whenever a petition comes out she'll challenge it whenever we get a petition that we think she might challenge you know we'll put it to the voters it's going to be this back and forth so i agree with  i would say that if no let is represented by counsel that would definitely help us a lot in dealing with her is far as a mediation goes continue with your arguments  talked about the stench and doctrine under younger after the sprint v jacobs case our position became considerably weaker it's obviously it's not it's not a case that the district court considered our response to that is on page thirty we cited a couple cases that said ok civil enforcement actions don't necessarily have to be by state it can be a local government and it doesn't have to be into criminal activity  kind of our our better response to sprint is to look at the ready link case which goes to our third issue on claim preclusion i believe radio link might have been the circuit's first opportunity to consider sprint after it was issued by the supreme court that actually says ok this is a case that came to us on younger abstention we acknowledge spring is the leading authority from the supreme court and they got strike one in there out because it wasn't filed by any type of governmental entity action so it couldn't of satisfied any of the other things it was non criminal case but then the court went on and said well but we're not done with our analysis we can look at claim preclusion and the court and ready link actually considered claim preclusion for the first time on appeal in this case in doing the younger analysis the court  pages ten and twelve of the record which is the written decision provided some of the legal background on claim preclusion as an element of abstention and then on page twelve the record judge may hand went ahead and he said well they could know what could have brought the constitutional claims in the state cases i sort of feel like i'm looking at the mirror here though because part of the argument being made by no less now is that well effectively we did so give us summary judgment because all those issues have been resolved by this nevada supreme court so this summary judgment i think is improper because she didn't move for summary judgment she requires the five star be ruby requires same parties and there's also a new case that we said in our brief although we didn't elaborate on the holding versus sharp isn't about a supreme court case that changes the five star test a little  bit on whether there was mutuality between the parties now in the in the trio of lawsuits that we have that resulted in the nevada supreme court opinion that's in our supplemental ex urbs all the parties were not the same in all those cases and some of the issues were distinct and so for her to say that her first amendment rights have been chilled and she's entitled to summary judgment on that was the city missing the city was in all of them but the  parties left now with that on our side on their side the petitioners were different in the different cases in fact as you know let me sing she's only in one case of the three  so the another argument that we put out there we didn't see much of a response i mean there was kind of a curse response reply brief on the record feldman doctrine that was kind of our first argument in our motion to dismiss that they can't seek supplemental remedies of what they've got in the district court and what the judge points out in his decision is he says the time the point in time for the comparison is the time she filed her federal district court complaint at the time she filed that she the three trio of cases had not been resolved the one earlier case was resolved and gone to the u s supreme court and the city prevailed on that and so if you look at what she was really disappointed with was those trio of cases and she also mentioned that the claim she brings here is not that results different from those should be reached in those cases the argument is that she was inhibited from pursuing other ballot questions or or assisting in the effort to get other questions on to the ballot and that does seem to be a distinct question that doesn't require unwinding the previous decisions indeed the subsequent decision about a supreme court suggest you don't have to unwind the previous decisions in order to reach a factual conclusion that somehow the later actions were improper we have heard that argument your honor in a general sense in the briefs before this court by counsel but we have no articulation of what any of these are and so why didn't i just did i mean the claim is not that the ballot issue and i've lost track of the ballot issues that were not allowed to stay on the ballot should be go back under the ballot or be put on the next ballot the argument is that because of this practice of raising the legal challenge by a vehicle which names the ballot proponents individually is defendants that discourages no less and presumably other ballot proponents from pursuing additional questions how does that undoing the decision of the nevada court which upheld the city's position that the first question shouldn't go on the ballot number one i think the nevada supreme court decision was limited to just the anti slap statutes and so when it talks about and actually the supreme court went to great lengths to find for the latin the other petitioners in that case because they talked about a new statute that was in effect applied retroactive make my question clear ok how does the current lawsuit in front of us require undoing the nevada court decisions back at the beginning of this sequence that said it's ok for the city to contest whether this question should be on the ballot and it's ok to do it in the vehicle that was used which named the individual proponents as defendants nothing i see in the current lawsuit would change the result of that nevada court decision your honor just for clarification are you talking about the trio of lawsuits that went up to the nevada supreme court i think i missed the answer is yes but you just pointed out that she  got a party to one of them so and that's something i don't have a solid handle on so but i think the answer my question is your question is yes ok so in other words and i'm and i'm trying to i don't think quite i don't think this case requires undoing those decisions this case is is about something later that is the alleged inhibition in bringing further questions for placement on the ballot and if it doesn't undo the prior state court decisions are not sure how river feldman's implicated ok excuse me or so what my response to that then would be then i'll go back to the injunction argument of future hypothetical we're not really sure what exactly we're talking about you know what's the likelihood of that and the point that we make is it's not likely because now we have a legislative fix that says boulder city remember these three lawsuits that you filed against these petitioners and the anti slapp rule prohibited you from doing that well you can't do that because a legislator legislature has fixed that and clarified that you can't do that and so really it was an interpretation of a statute that was made at the grassroots level in boulder city let's do it this way to try to address these issues separately and the supreme court said the legislature says you can't so you can't and so there's really no likelihood here that we're going to keep doing that because now we've been put on notice for the first time with this legislative fix that was answer there your honor would be seeking additional supplemental remedies from the same lawsuit in a federal court and that was outlined by the judge's decision and then we cited a couple in nevada cases on i think thirty of our brief that says constitutional questions most definitely can be raised in nevada courts i'd like to make three points on rebuttal first the excerpts of record demonstrate that the the what was in fact chilled because it was in the complaint here at this stage the complaint should be deemed true and she said on page two will four of the record quote starting in two thousand and six and resuming in two thousand and ten and continuing to the present day defendants have established a city policy of opposing all voter initiatives with the purpose of chilling political speech well you're asking for in effect summary judgment for summary judgment we don't accept the complaint is true that's true your honor we think the chilling effect does run deeper than the complaint that the allegations in the complaint at the very we should be deemed true but the issue preclusion arguments that i raised in the opening still remain the second point is that with respect to party in the two thousand and eleven sanctions that were the case and finally with respect to the court's question regarding mediation we would have to consult our client but here the payment in the lower courts was all just attorney's fees she's yet to be compensated for first amendment violations and we don't think that the city would likely pay any additional amount in a let's mediation maybe few trial here and furthermore mediation clearly wouldn't result in anything as strong as an injunction which we think  grant the relief that we seek instead of trying to trying the case all right we're not used i mean that's a different question i mean we're not going to race in and give a decision and then say ok do you want to mediate now the question is would mediation now and a brief deferral of our decision be fruitful so if you tell me you think the court autograph the relief am i supposed to hear from that nominee da she's going to be a waste of time right now if that's not what you're trying to say if you're trying to say you need to consult with your client so maybe a pause of fifteen days would be useful that's the message you want to hear and i think that's the message you're supposed to be giving me