invidious religious racial or viewpoint discrimination with impunity in ways that violate the civil rights of individuals and that this coworker is powerless to stop him thankfully that is not the law is not the law from the supreme court or from the circuit on legislative immunity that's because when a legislative official applies policy to specific individuals that person  administrative act not a legislative act therefore is not afforded absolute legislative immunity now i let's say arguing do we accept that general proposition is this different because it's talking about the poor of the legislature or the place where they do their work and controlling that spear does that make any difference in this analysis that we're not talking about just a simple well you have to have a co be an internal and you did enter something it's actually right where they're making decisions or saying we don't want lobbyists well again this case is not about lobbyist but about media  now i mean that you can add the gearing would maybe disagree with you but what i'm saying is that this particular rule and the question here is not that he bay and you are from writing about the legislature in the whole world it was that you couldn't be there in their floor where you wanted to be right equal access on the floor with the other media organizations ok that is exactly where they're doing their business no question about that right that's right does that make any difference to this analysis versus any other implementation of a rule that the legislature is a correct on now so this would be no  is that legislative immunity protects functions not offices and so we see the doctrine applied from the local level to the state level to the regional level to the federal level and consistently across those levels of government you see that there is this distinction between actions that develop policy such as participation in the legislative process itself and actions that apply policy or carry out the orders of a legislative body those don't are not entitled to legislative immunity and almost this is consistent with how a municipal is applied in other contexts for example in the judiciary there is absolute judicial immunity for the courts  but there is found in forster v y right and as recognized by this circuit a distinction in the judicial context between absolute judicial immunity for judges who participate in the judicial process and then administration administrate of actions images will contest that what's happening in the courtroom like what's happening right now in this courtroom and weird we're going on and we put a stop to it that that would be part of our judicial function might be a little different if we're talking about what's happening in the library on the st floor maybe that's not as much a judicial function but i've always thought of the courtroom as where i'm doing my business now i saw i also can do it in my office but clearly i'm doing my business right here right now and so why isn't that a judicial function just as when the legislature is sitting on the floor of the house they're doing their business so  important to the operation of the court does not necessarily make it on a part of the judicial process itself so if i set it so if i step down tackled somebody because i thought they were a security threat i wouldn't necessarily have to distill immunity for that you would have qualified immunity not that's not judicial and not and to be clear you know i'm brought up in briefed on legislative immunity not judicial immunity by comparison to the traditional media the context is for the sake of saying that this distinction between administrative and judicial acts found there are very similar to the doctrine that we find in the legislative contact i'm not planning a back pack abs or go here and i've got a question when you're done if people in these rows just suddenly start getting up and protesting you know st amendment st amendment and shouting and we said get out you don't think that be part of judicial muni and they were absolutely stopping them from speaking but we're in the middle of a court process i think we do have the right to do that and you're going to say we wouldn't have absolute immunity for that  no because take a different context if this court were to say of mormons need not enter the door or were to say we're about lao reporters to come in here report on things but we don't like the washington post and so the washington post pacifically is banned i think a court case could proceed on that because there wouldn't be an application of absolute immunity and that context there would be an application of qualified immunity a case could enter the court house  and obviously the court says the supreme court recognized and but to be a column of the courts are very well equipped to deal with frivolous claims and to afford the proper protections to allow protecting sort of the core of where we're doing our business think those are different categories i'm not saying that they would come out differently necessarily but they're different categories so i'm just speaking to you've got a floor of the house you've got a court room and you have to control what's happening there so you can do your job and if people are in here protesting what they think how they think we should rule in this case we can't do our job and we're going to exclude them and we're going to have judicial munni from that i can pretty much guarantee so then then i'm asking you what is the distinction between that and what mr garin is doing here on the house floor the so two things on that i actually would challenge a promise you would be entitled to judicial immunity but would it be absolute yes it was but you disagree with that i decide i disagree i think if you so we get that you disagree with that you'd be kind of like can you just answer the rest of the question sure part of legislative immunity to be able to control the quare place where they are doing their business because the supreme court's precedent on the issue makes a very different distinction not between the location in which legislation takes place but between the legislative process itself and processes other than that there is obviously in this in to be clear there is immunity that applies but not absolute immunity absolute immunity applies to the legislative process itself is recognized in the civil case on this kilborne v thompson that basically said legislative apply immunity applies ensured to things generally done in a session of the house by one of its members in relation to the business before it such as participation in debates such as code but in each of these cases i point the court to read  the united states if you look to gravelle there's a very nice historical analysis case by case of the supreme court's precedent on legislative immunity the the court walks through in shows where you have a legislative official who participates in the legislative process in voting in promulgating a resolution they are entitled to legislative immunity but those legislative officials who actually carry out the act are not entitled to absolute immunity so in kilborne congressmen vote to order a man to be arrested but the sergeant at arms who actually goes to make the lobbyist but instead it was because they were a member of the media and they were a member of the media who was who was disfavored by the blood just slayed of officer correct screw up and we have to take all those facts and so it doesn't matter whether or not they're really they had it we're not we can't take it well they mistakenly thought they were a lobbyist or they really are a lot of us that's not before we have we don't we're not taking the facts there aren't given the posture or are there are is that not true in this posture the facts are taken in the light most favorable to empower texans and so this case is about whether a legislative additional official killing gauge an invidious viewpoint discrimination i'm using it in the sense that it's very bad it's bad to engage in viewpoint discrimination but in the other sense it's invidious in that these are actions that actually apply policy to an individual and so it's not a theoretical problem have thought about this so near and david duke was elected to the legislative process if he filed the bill because he was a racist we don't allow a lawsuit based on that motivation for him filing a bill or taking a vote but whenever you have an official that then applies policy to a particular individual when the rubber meets the road there is a harm and so it is this type of indigenous discrimination where my client has been impacted and had their civil rights violated  and really it would be very clear in any other context that would be the case so then the question is does the community shield that action and going to i think if i think that  within the area of activities it is protected by judicial mini doesn't matter how reprehensible in a way it could be in part of that is the reprehensible nature of it is only determined after some sort of litigation  and interference with with the with the judge's activities so there's just a broad immunity from challenges brought by folks who see something in traditional action and i think that there certainly  legislative act it is similarly in title i mean it could be my understanding or your clients are the only one to be denied media credentials but you could have a broad number of people denied media credentials and defending against those particular challenges and no matter how invidious the geishas may say the action hersh says be the same sort of protection has merit here you have any kind of reaction to the yes to absolute legislative immunity means what it sounds like it's absolute so if you have a legislative act such is voting participation in the legislative process it is afforded that absolute immunity but we have to ask ourselves does that apply to these administrative acts where the legislative official is applying the policy to specific individuals and there's no case law standing for that and in fact the cases cited faith in this case the less that official did nothing more than apply the policy in the policy itself was fine and you know the greater the appellate says uh there's a parade of horribles that's coming if this decision is made they say we can save that for another day we don't have to reach that what i'm telling this court is you have to confront that that's this case because the allegation of discrimination is here and it's accepted as true and it please the court other hacker for the state of texas constitution grants authority to each house to control the legislative process but empower texans is asking a federal court to force the texas house of representatives to admit them to the floor of the chamber where they make law and can the legislature in gauge and invade his discrimination with impunity because of this immunity of which you speak i think that's not fair to say here there there is nothing close to it invidious discrimination alleged on the face of the complaint well it's a would be a core st amendment of viewpoint discrimination based upon the dignity of the reporter that's a core st amendment which certainly would you saying that that's not is in trouble to the constitution as whether or not sex or race or of course not what i meant to say by that is that the facts alleged in the complaint don't show that empower texans was entitled to a press pass but directly addressing your question you know setting aside that nothing like that has been alleged here in terms of the prate of horribles that he mentioned racial discrimination religious discrimination discrimination and i don't think anything like that would happen maybe that would be a different case and the plaintiff raised that we could you believe that we could  we could step in and they would not be absolute immunity of this was sex discrimination alleged well what i will say is that the court the supreme court has never dealt with this issue but the supreme court that issue excuse me but the supreme court has dealt with this issue here where there was an allegation of viewpoint discrimination or st amendment violation the supreme court has addressed that several times and in each case the court has emphasized that the motive of the actor is irrelevant and specifically i want to draw the court's attention to the supreme court's decision in the tiny case where the  the plaintiff there was accusing at a california legislative committee on un american activities with abusing its right to subpoena a witness and the court said that you know in the political arena obviously there are allegations of bad faith and discrimination that fly but that's just not where the court should be getting involved we have to let the if the doctrine of legislative immunity means that we have to let s you in your face can can you do you have absolute does your client have absolute legislative immunity in that situation only the washington post of all newspapers cannot come in the door i would say that if it's on its face that might be a different situation but the court has never the supreme that well the supreme court has never has never made that kind of a determination and that again pulling it back to where we are in this case what we're talking about here is an allegation of viewpoint discrimination if it is a mere allegation the supreme court has said this also several times and ten eastland invoke and if the mere allegation of viewpoint discrimination is enough to defeat the privilege of absolute immunity that immunity really is meaningless and also we say i think i'm following up a slightly different way my concerns about the case is what you're talking about right now  policy and i don't really see it despite my suggestions to you friend on the other side of it as being the same is controlling access to this particular chamber in judicial immunity where you say that that this to be looked at to allow the kinds of constitutional concerns that to be look at a lower level of immunity which i guess would be qualified to look at it so these sorts of constitutional concerns that you have to keep pushing aside  and the court there said that because we don't need to decide the outer limits of the immunity doctrine to decide this case we can save that question for another day and i think that that was a wise action because saying here and and that that perhaps the better way to analyze a case like this is not through absolutely i think that it does have to be at analyzed through legislative immunity this the supreme court has said that where the legislature is acting in a sphere of legitimate legislative authority or it's doing something that's courts of the legislative function itself that the constitution and the common law grant legislative immunity to those actions and so you have to so the question really is whether or not this was legitimate legislative activity and i think that there's really no serious dispute that it is as judge jayne's mentioned during my friend's argument where talking about the chamber of the house where laws are made if the house was helpless to control what happens on that floor no laws could be made it would seriously impact the process and this rule in particular in addition to other rules in addition to a state statute furthers the state's policy of trying to prevent obvious that on its face this rule now there's a disagreement whether was applied properly that's a separate question but on its face is a rule that says we'll let newspapers that are reporting on what's happening but not lobbyists that are trying to lobby the legislators that that's the distinction we're making on its face there's nothing evil about the act where is something on its face and said race anyway is allowed in but race b is not your gender is allowed in but gender b is not on its face would be a problem is that the distinction you're making a response to what judge south was saskin about absolute immunity so if the hypothetical is that if the if the rules said on its face something that was clearly discriminatory then there might be an argument in that case that it's not legitimate legislative activity but again the supreme court's cases have dealt with this issue where there's an allegation of a st amendment violation and the court has said that legislative immunity prevents us from looking in from from piercing that they'll from looking in and trying to figure out what the motives are here in order to determine whether or not it was legislative legitimate legislative act if if we were accept that the house can control its chambers then it wouldn't matter whether mr garin didn't like these people or whether mr garin really was trying to apply the rule is written that's what you're saying yes i think that's i think that's the only way that you can interpret the supreme court's cases on this topic i think that that's true and would we be creating a circuit split if we went the other way application of a rule to an individual who is excluded because of ties with lobbyists and in each one of these cases in analyzing supreme court precedent those circuits have come to the conclusion that legislative immunity protects that decision and you know and in each one of those cases there was an allegation of discrimination or unfair application of the rule and that again those circuits all agreed with what the supreme court has said on this topic and that the court can't look into the motive there it just has to say whether or not this is legitimate legislative activity and it clearly is applying those rules as in this case is clause i mean again you know part of the rationale that the supreme court has set out for legislative immunity is so that legislators can do their job as legislators and they don't get embroiled in all of this litigation and so if it's something that would cause the legislators to have to get in broiled in litigation where there would be separation of powers concerns you know that's just we are the constitution draws the line in terms of question those women are out of luck as well i would hope that the women would not be out of luck your honor but i just i'm i'm i'm trying to faithfully interpret here or explain what the supreme court has said is going to figure out where  poet applies at the margins when there's a possibility of discrimination and that's so i i don't know the answer are you saying that that's that fails that claim it's a you know we're not looking at it's just it's just a fact of sixty dollars forty cents i would say that based on i would say that based on the supreme court if it's not on the face of the law  you're delving into motives which are relevant in an equal protection claim then that may cross the line that the supreme court has set out into there would be absolutely i mean right now you are actually at your head maybe you would cross the line ask is this is this the exception time or is this the absolute immunity i can't tell the answer well i think that the court again does not need to define the rule by the exception again whatever the outer limits are of this doctrine that's not what's involved in this case this is a this the facts of this case are squarely within the heart of legitimate legislative activity is squarely within the heart of what the supreme court has regional point to me i thought was that when it's on its face and neutral thing it lobbyist versus regular reporters rather than men versus women you know on the face of it it says women aren't allowed on the floor of the legislature you could have a problem with that but if it the face of it was lobby versus reporter but then the application yielded true i see my time is running low and i did want to get to the issue of minuteness which i think well immune from the federal lawsuit i mean they're not to say there wouldn't be some state provision that might come into play there we wouldn't worry about that yes that that that's true as well because there could be accountability in the state courts as well as a potential remedy but addressing the issue of madness this case involves only claims of prospective relief against a state official in his official capacity and the court m seventy five percent likelihood of social session is of that anticipated i mean if they could point to something saying that there was a high likelihood of a special session usually there's discussion in the media before a special session is called that might be a different case but they don't even have that here or nothing close to that nor can they point to anything that's happened in the last eight months since the legislature adjourned that they have been excluded from because they don't have a press pass so there simply is no the last seventy two dollars times it's more likely than not that that a special session will occur what's the what's the test how much does it have to be to be moved well i think it would be helpful for the court to look at what relief they're requesting here and so when and whether or not it can grant relief to remedy what they're alleging their injury is village their injury is from being excluded from sitting in the press area of the house floor during house sessions it's not just a piece of paper that says press pass on it they want access to those sessions there are no more sessions left in th you get a new path for the st day or use the old pass to get into the st day or the new legislature everyone has to apply for a new pass so for the special session they'll have to all everybody has to like it not there's no grandfather people in i think for it if there were a special session they would have to they would they could use their current press pass for this legislature but that's not to say that empower texans could not submit another application or submit additional information because it would have to do something more than what it's already done when everybody else gets to use their current you that's why it's not made but again there there's nothing indicating that there would be as asked about this special session in the fifty out of seventy or whatever it is i have not gone back and studied this but i'm a so i'm asking you my recollection is typically special sessions are called shortly after the regular session i don't remember maybe there's been one lived in texas for thirty plus years i don't really remember a lot of them occurring in an off year like this one like when you know the the even numbered year  and so when does that in in other words by now do we know that this sort of usual special session that comes because they didn't pass the law licensing attorneys in it you know was was faded out or whatever that that hasn't happened we know that so now it would take almost like an emergency situation and how many of those it were yet how many special sessions if we had in an even numbered year or an off year i don't have an exact number for your honor but i will say that just my general knowledge and review of this topic is the same as yours that it's very rare for a special session to be called in the even numbered year it usually special sessions are called i'm sorry you argue that as to why it was unlikely no your honor because the other side has not explained why it would be likely it's their burden here to show why they can say how many happen certain often i believe what they said is they can come up quickly but but to go back to judge haynes is a question i think that it is very rare usually special sessions are called fairly close after that regular session ends and also special sessions can't go past the date when most of the laws go into effect which isn't september or september st so if a special session were to be called at this late date it would be very rare just based on my general knowledge i frankly don't remember a single one in but that's not to say it didn't happen and that couldn't happen i just think this notion that it always happens is the june anybody's burden is more we needed it and analyze it correctly because it affects our jurisdiction so is is that a twenty eight is thing on the moon i'd like to know i'd like to know when these fifty sessions were were they within a few months of the senate da session or were they a year later like we are and then up on him and i'd be happy to submit a letter after the argument that's up to judge all right she's the presiding judge her but but you know i think that if you if you look at what what's going on here in order for their harm to reoccur you have to assume a string of you have to make a string of  assumptions you have to assume that a special session would be called which is extremely unlikely at this point you would have to assume that they would not be able to get a press pass in time that's belied by the record here that their press pass was denied the very next day so the idea that they if they applied and they met the face of the rule that they wouldn't be able to get a press pass in time since they don't have to the fact that they would have to apply and try to me is why it's not moot regardless of whether it would be an easy process or not because the other people don't have to apply again so a so that the fact that it's not hard is not a relevant inquiry is it kills i guess it goes towards the injury your honor but i just don't look at the injury on this it's you have to do something different that other people don't have to do because you were unconstitutionally denied a pass perhaps allegedly well my time is up if i could you answer yes i would say that the  the the injury is relevant to whether or not the court can provide a remedy which is the question in mutinous well and it's relevant to the cable repartition your debating review factor how quickly this like to address the minas issue briefly or as long as you'd like me to took a couple other issues i would point the court to our reply brief we've cited to the page from the legislative reference library that has all the history of the all if that is a legislative act yes then absolute immunity would apply and there would be very grave consequences in fact i would say to the court there's there's really no principled way to distinguish between this test of actions that impact the environment in which legislation takes place you can say ok this applies to actions that control the floor but then if the floor why not the gallery if the gallery why not the rotunda if the re everywhere else just as i see it in the court room and the library in this building i think of the common sense and practical difference but there's not a clear dividing line in the same way that there's a clear dividing line between those actions which are part and parcel of the legislative process and those actions which that apply policy again the lesson from forster v white from from the supreme court is things can be very very important to the administration of a government  dy important to its ability to function without bein part and parcel of that process kind of hard to say though that where we are voting is not part and parcel of legislation well it's just it's the environment in which that legislative process takes place and if in the u s senate you have to be physically present walk down the aisle on when they're it when it's a recorded vote and walk down the aisle and say hey renee or raise your hand or something and basso that is a very core thing you can't go back to your office and text your vote to in a couple of cases to cite two in this in gravelle the test is whether they act as of congress practice with regard to for access interesting and when congress st convened they closed the doors locked everyone out they then decided they didn't want to do that they then open the doors and they allowed anyone on the floor that they could then they started to develop policies as to the control and so i would say it's not integral to the legislative process to control the environment in which the legislative process takes place otherwise in one of those situations legislation wouldn't have been happening but legislation goes on even if you open the doors entirely and allow everyone just to flood in to the chamber that's the historical lessing here is integral  proffering the legislation and voting a or nay but no there is the supreme court and i'm not integral to the process that i get up in argue why i think it's good because you can still vote against what i think so under your theory almost nothing is legislated except maybe the actual vote and maybe the actual statute or rule amount of time but we do it out into the question i would cite the court to gravelle which goes through the history of the supreme court's handling of this issue and it's very clear that many things are cool are part of that legislative process including debate including the investigatory function and in fact that comes from the speech  debate is very much at the center of what is being protected by the legislative immunity doctrine so it's a no i would not say that it's just noting it's just filing bills there's many other things but it is limited to participation in that legislative process