concisely dealt with in our brief those are the issues of the propriety of the award of fees at all and if these were appropriately granted the amount of those fees certainly are taking questions from the court on those arguments but i i'd like to rely on our papers for those two portions of our appeal and discuss what i believe is really the singular issue for us as an institutional matter and that is the  sued in his official position and in his office or capacity because that is the only way as we all know in the commonwealth that certain types of relief may be obtained from the government in this case the general assembly for certain types of litigation in which is seeking to declare statutes unconstitutional or your otherwise attempting to compel some sort of legislative action motion because there was a disagreement in this in the papers about whether the speaker of the house had given consent or whether we're withdrawing consent once it became clear that was an issue senator scarnato on his own initiative withdrew and moved not you on his own initiative to move this in the case back on the state court that was one party that we believe was not nominal and whose consent was required for purposes of removal on the first place and that apparently was be were the governor or the secretary of state and that actually is an important factor in this in this drama we're in these cases for any reason on any basis other than they are official representative capacity  i mentioned the secretary for state because that person changed during the pendency of alleviation it started out as one person that person stepped away from the office that person didn't stay on the docket in the caption his name was substituted for the new secretary of state why because the old secretary of state personally was not mean the league urged at one point that the state shouldn't have to foot the bill for for this that it was really a center scar ninety and it would be unfair to have the state have to foot the bill is there any other argument or  good argument for issue raised as to whether personal capacity versus official capacity whether the responsibility was one of the other was there anything in any of the papers or anything in judge  the order i think you would have seen an institutional response from both parties and from multiple branches of government because let's think about the significance of that act joe as president pro t do constitutionally for their legislative or executive or judicial bodies i have to take legal positions to do things the effect of without notice  that case and that with the jury like kentucky versus graham i or i am can i ask you do you contest the finding there was no objection objective reasonable basis for remove all we do we think there was a reasonable basis for removal and what was that one the unique situation legally in factually occurring in the commonwealth that time i did it is unprecedented as far as i know in the third circuit in pennsylvania that in the midst of an oppressive dented three way legal challenge to federal congressional districts that there was a special election that was announced in the midst of that fight and there was going to be a dispute over whether that election was going to run them to the challenge boundaries the new boundaries when would it be held it you're on is it hasn't happened that may alone be enough to make it reasonable isn't that the faith and a reasonable extension supported by i understand we wouldn't it's not binding on the eastern district of pennsylvania but on the third circuit but at least has a factual predicate in other judicial district so the country where there has been attempts to expand that have been successful the the ability to rule in the course of some sort of redistricting five it doesn't and i don't want to dwell on so much because  the papers or form articulate on this and i am but i always hear your question is the an objective reasonable basis doesn't have to be a sure winner and it certainly doesn't mean it can't be an  see that you can see the chilling effect that the court below would have on a state official charged with making important decisions about the constitution if they're afraid that they're going to be helped personally liable for decisions that they are would change any of the analysis i've i can't say it might not your honor i can't say that it might not if there had been a finding of bad faith i think i think we'd have to know what the bad teeth was but  and to your point there was no there was specifically no finding of bad faith the judge went out of his way to say there was no finding of bad faith that has not been appealed that is the law of the case the fact record below personally then the court could certainly remain on to give the district court a chance to make that binding and i think what's important is what was obviously motivating the district court in this is why we requested the imposition of fees on senators a court didn't want that and that makes perfect sense because the whole purpose of the shipping provision in forty forty seven c is to deter object to be unreasonable removals and in this case it's hard it's hard to conceive of a case was how he had unique interests and i don't think you could find a single court in this country that has held that state election officials who are administering an election under a law that we're asking we're saying is can't is unconstitutional we're seeking an injunction preventing them from running the election under about law but those aren't nominal penance they could have been the only defendants in the case so the the the speaker has a issue is is sort of a sideshow this this was clearly to do with the case we were not seeking to change the districts for the special election that was completely clear from our papers which said that we were seeking to change the districts for the next primary and general election that was completely clear in the filing we had made seeking the pennsylvania supreme court and even putting that aside i mean this court held in the ass case that other paper only refers to documents within the case so it was it was completely unreasonable privilege for that reason as and happy also to talk about the fact that there was no federal subject matter jurisdiction because at best this issue about the special election which again just as a factual matter had nothing to do with our case but at best that would have provided a federal and this court held in harlow that where an official could be expected to know that certain conduct would violate statutory or constitutional rights he should be made to hesitate and harlow held that so you know officials is costly acquires distracting trials it deters people from government service i think it will get separation of powers concerns to ask federal courts to be saying that state court officials are litigating in bad faith well getting a better court i required to impose these on centers or not me personally but what harlow said is that of course there's got to be a level of government misconduct of official misconduct before you impose these on someone personally per their official acts but that the standard of misconduct it's a political should be whether the conduct was objective leean reasonable that's what harlan said but it should be objectively and reasonable not that faith and you know that's that rationale i think  took took this step indicated based on party to the litigation he personally that's kentucky versus graham stands for that proposition does it not he is a nonparty to the litigation but he personally engaged in conduct that's attributable to him by removing the case and i think it's important to know that yet and then you get into that the need for bad faith right without bad faith because it is a cannot fifty's against him as a nonparty can you  but the reason it says bad faith is what it does is it ties the standard for shipping fees based on litigation misconduct to the standard protecting fees based on qualified immunity what it says in it cites a case called wood vs strickland for the bad standard but w spend five years later or thereabouts in harlow so how do we really supports our argument here because hunter was saying that the standard for imposing fees on somebody personally the wrongfulness standard should be the same as the standard in  entities there were the state house in the state senate so there would have been a possibility of imposing their views on anybody in their personal capacity but the court in that case what the court said was we don't want to impose costs on the when there is litigation misconduct you shouldn't impose it on the taxpayer and i think what i think what sort of important thing about here is pennsylvania tech person you paid millions of dollars to defend this map and that's fine but they shouldn't also have to pay for some risk or not to use abuse of the litigation process and the deterrent value of fourteen point seven c which is specifically aimed at deterring frivolous removal for the purpose of delay will of public officials can't be held personally on the hook for this you know you know for example nothing want to stop center of cannot be from removing this case again the day before trial  there weren't the possibility of personal liability i'm so it's critically important that the court hold that official defendants who abuse the removal power be held to account and that just doesn't happen if the taxpayers have to bear the cost of just the day before trial this was not this was the day before  granted a very unique and novel situation that could involve claims of you know what's going on here is unconstitutional etc etc a grand the procedures were not followed but are we really going to i say to people in their official capacity when they're sued that you know if they make a misstep they're going to be sued personally it's a lack of said that you want to make sure that you don't do something that causes a state official to act later on with undue timidity and then fitzgerald specific which comes after host specifically addresses this issue it specifically addresses the question of whether bad faith or objective and reasonable this should be the standard for imposing peace on people in their personal capacity and it said that the right balance is objective and reasonableness and it says that because we're an official could be expected to know that conduct would violate start for a constitutional right he should be made to hesitate so that timidity here would not be undue i mean this wasn't a close call this is the notion that the in the first year or so i mean we we would bill hemmer i can i can promise you this all of the fees that we put on our request in this case we would one hundred percent have build to a commercial crime and if you have a if you have a situation like this where there's is clearly takes care of any any issue at all thank you very much between the two concepts nominal and indispensable in in governmental litigation in the commonwealth is is not that difficult captions are littered with state agencies and state actors in commonwealth court and then up to supreme court who are there simply because at some point along the chain they have to do a ministerial act and that's just the pleading practice in commonwealth court it doesn't mean they actually do anything and in reality and  again i know this because this is really the moment the optics really bad well i don't know about the optics you're on i'm not i'm probably the wrong person to ask about that but i we're not talking about the political realm so political people in the political realm do understand i'm sure they do but if we're talking about the political realm then it sounds like we're talking about a whether this might be a political question which i'm talking that if you say x and then later on you say no not  nominal means not indispensable well actually to me nominal and indispensable have different conceptual meetings again that we see and we play it in this case and it's in our papers but i grant that it is novel i grant that it  is not optimal from a public perspective but i think there's a real legal difference and i don't think it's ridiculous to try to point out that difference in fact in the end i'm not the only person who says so i think there's a case in the northern district of new york that needs exactly the same broader points i want to make what i find i think if we're talking about perception in congress in congress i i don't understand how on the one hand these issues were so for the purpose of removing to federal court your honor senator scotty and protester nadi has an obligation and this is actually the second point i was going to make about taxpayer dollars what was the purpose of removing to federal court the purpose you're on it was try court two cases in federal court one ping pong back and forth between commonwealth and supreme court they all are asking for the exact same relief they all are invoking constitutional provisions in senator scott noddy's judgment as pro tem of the senate and as an institutional leader charged for that body the whole body with trying to preserve commonwealth dollars a more efficient way to to to solve this problem is to try to get it in a few of courts as possible that is a legitimate state basis to try to remove it's a legitimate basis to justify a good faith attempt to make the kind of litigation more efficient it didn't work out we're not here to tell you it necessarily should have worked out i think you should have but that from the point the point is the man who made that decision was the pro tem of the senate of pennsylvania not the citizen and joe's deny the citizen didn't know until the day he got that opinion that he was going to be expected to be called the recount in any way other than the ballot box for the decisions of josephine i need to quote sam and i think you know if there are probably real