and gentlemen our first case for argument indiana university again understand that it is a crime to either get or convey aborted fetal tissue and everyone agrees that the indiana university plaintiffs are violating the statute by getting aborted fetal tissue from the d n r l this court should reverse and enter judgment for the prosecutors and i do want to begin with the district courts begun this whole thing and as you're well aware there are hundreds of federal statutes thousands of state statutes including those in indiana which use the words transfer a uire and receive before we go further would rule the attorney general's office for those in this case while the attorney general's office obviously represents the state of indiana with respect to statutes when a prosecutor is practice representing to public officials whose terms expire this december yes so how do you or statements bind future officials in india because the state of indiana has previously construed state prosecutors to be employees of the state they're actually compensated by the state they are state officials for purposes of actions like these so my statements on behalf of those public officials do behind the state  hamilton i have a related question which is what is this case doing here it looks like one subordinate body in indiana is suing another subordinate body and in the end why is that just  microphone or otherwise but the echo makes things hard to be here yeah let me try to accommodate that i'm in the south bend case versus south bend common council this court held that two agencies of the same city could not that's indiana code twenty one twenty two dash two you don't think indiana can confer jurisdiction on a federal court it was a matter of federal law one part of the state can't sue another no state more can change that rule do you have any case for the proposition that as a matter of federal law one part of a state can sue another part of the state well as a matter of federal law my understanding is that you know if you have two separate persons they can sue each other and so when the state of indiana assets and they're both look suppose one subsidiary of general motors sues another subsidiary of general motors it's got lots of subsidiary according to get that right but if i could continue indiana statutes make clear that indiana university has the power to accept and receive gets that i'm not part of the appropriations position that state law cannot come for federal jurisdiction but state law  say well as a matter of federal law one state one part of the state can sue another but we in indiana disagree with that so that's canceled this has to be decided as a matter of federal law certainly but indiana has the power under state law to create a separate your riddick person which i believe indiana has done here that only with respect to the power to fix that gets you have to answer the general motors question the other way and say that because each subsid  your honor i respectfully disagree and i'm sure indiana university's counsel was the counsel of the separate terrific person will be able to provide even more information on that point than i will from our perspective the only juror justiciable problem is the lack of right with respect to their challenges to the vagueness of the transfer acquire and receive language and the any other part language because there's no threat of prosecution counsel this is a criminal statute correct correct and there are individual in context particularly in light of four principles first of the associated words can and you have to read the words transfer acquire and we see if together with the word sell and together they require some change in ownership or change in title mayor movement is not enough how you get that just tell you where i'm coming from we have lots of federal statutes for example that deal with different forms of contraband yes suppose we're not but typically the federal statutes and most state statutes regarding up for him a drug like cocaine would prohibit mere possession but take your hypothetical imagine you had a federal statute asking about i'm talking about changes of position a transfer a distribution so imagine you had a federal statute that expressly prohibited the transfer of cocaine a reasonable person we do will pay me for that then take that statute a reasonable person would not construe transfer in that context as committing a separate charge of a violation when you move the cocaine from one side of the table to the other and when you put it in your pocket and handed to your colleague in the packaging room corporate conspiracies with this is a criminal statute drafted to prohibit transfers and so i don't understand why or how you can say that having two people that in other contexts we would call co acquire why is it important for you to offer this limitation that's that's one thing that i've had a hard time figuring out your you seem to want to emphasize in your brief of i've read it correctly that transfer does not apply to an exchange or or a transfer from one lab assistant to another know that that's correct because we don't think that a reasonable person would understand the statute for example to result in criminal liability for f if knowing the contents of the package drove the or the substance into any engine is a savings construction no that was just the prosecutor's construction now if this court were to disagree and conclude that the statute is not vague because it includes mere movement we went on that basis to it's still not that i mean really only a sort of plain language of those conclude this limitation right what i'm saying if it clearly does then we still win because it's not vague really the way i see it the court has the court has three options you can agree with us that the statute is not constitutionally vague or that it's merely ambiguous which is not unconstitutional and you can rule in our favor you could alternatively be concerned about vagueness in the context of the hypothetical or judge scudder's question which i don't think you satisfactorily answer why why does it matter to the federal constitution what the correct meaning of transfer or any of these other words is given that indiana has judiciary that can resolve those kinds of disputes well the claims here are the meaning of that word yes part of the problem in that case is that both sides seem to assume that whenever there is a need for a judiciary to interpret ambiguities in legal words those words must be unconstitutional well we've seen where a lot of jobs because every time somebody brings an ambiguity to oss the only thing we would do is declare the statute on constitution and that's not the way judah cation works so why are unconstitutional when a term is merely ambiguous which is their contention here then and this court or a state court doesn't do anything at this stage instead you wait for an actual prosecution or an as applied challenge and then you let the parties argue about ambiguity in front of the trial court judge and you let it be decided in the context of that as applied challenge they're asking you held before a category five felony is what i'm sorry  punishment for a category five felony in indiana which this use is one of several i term in prison your honor could you be more specific i cannot tell you the number of years the maximum is six years that sounds correct four to five times per year now if the prosecutors had threatened prosecution is there any litigation in state court indiana university or any of its employees brought but declaratory judgment action in state court that's a fairly common means of dealing with ambiguity the border legal words you say i would like to do x on worried that if i do x they'll prosecute me i would like a declaratory judgment that i can do  body politic that can seal and be sued for anything to do with like question it does not address the declaratory judgment question i'm not aware of any cases where indiana university or any other public university of the state has filed such a deck action and state court your honor  so to get back to the the choices here if you conclude that the statute is either an ambiguous as we contend it is or ambiguous the way indiana university does neither one of those results in what the district court did which is striking down words of the statute and their ambiguity is something as judge easterbrook and judge scott and judge hamilton of all pointed out would be worked out in the course of an ordinary criminal proceeding it's not appropriate for a facial challenge based on unconstitutional they can assess if you think that there might be ambiguity or vagueness in the hypothetical circumstances they raise their movement around the lab then uphold it as a facial matter and send them back so that in the event the prosecutors change their minds and decide to initiate a prosecution in those circumstances which they have said they will not then it can be worked out as part of the regular proceeding just as judge easterbrook indicated  risk for dr lee here ie right certainly not when the prosecutors have affirmatively disclaimed that they would prosecute him for mere movement this court i think we are bound by that but  issues that's probably less certain your honor but until right but in this circuit as in every other circuit until there is a credible threat of prosecution not a mere possibility that in the future some different prosecutor might prosecute but until there's a in under what circumstances it's that binding i don't think that would be binding i think a mistake of law asking whether you think so i'm asking what the state of normal unity any i i don't have  specific knowledge don't know i don't know the answer to that but generally mistake of law i don't think off the top of my head judge easterbrook i don't believe that a mistake of law in indiana or any other jurisdiction would be a defense but i don't have specific knowledge of indiana law in that area so to get back to your choices you know you agree with us that it's not vague or it's at most ambiguous the statutes up he you agree with them that there might be concern about vagueness in a context where the prosecutors have never threaten prosecution you say come back to us with an as applied challenge if that prosecution is threatened or the third thing if you want to i dress the hypothetical prosecution which has never happened and never been threatened you don't blue pencil words out of the statute as did the district court you simply enjoying the prosecutors from prosecuting from your movement you know which judge hamilton your concern about the six years of prison times four or five times per year that's something that the prosecutors would readily agree to but what the district court did is the one thing that it couldn't do which was to rewrite the statute entirely by blue penciling out t because the conduct that they're complaining about is not general conduct it's very specific it's on the edges of the statute the core conduct prohibited by the statute even i you acknowledge as they are engaged in it's the acquisition and case specifically where he talks about the adoption of new laws restricting liberty you supposed to be a hard business by a moment by debate among elected at their mercy and indiana agrees with that general principle we don't think it applies here because a reasonable person would understand that transfer does not include mere movement you know i think i'm a reasonable person and i know how we apply similar statutory language to other forms of contraband and your position seems to be unique the only specific citation you provided to support your reading was i believe in one nine hundred seventy six new jersey trial court decision and i correct that was the one statute we could find that use all of the words in the statute that's correct and then well ok can i give you another example i don't know why i don't know why you are saying that a transfer from one member of dr lee here his lab to another or a movement of the tissue from bloomington and indianapolis or to kokomo is not a transfer  i in reading your position here it seems to me that you're worried about the statute somehow overreaching and what i'm trying to figure out is that a constitutional worry more of a practical worry you know what  about a transfer from one member to a lab to another that gives you pause because those transfers happen potentially hundreds of times in a day or so and we don't believe that the intent of the indiana legislature was to make each one of those transfers a separate chargeable if that's what we just like with congress when it but when it enacted the law that prohibits the transfer of false identification of a teenager gets a false  id we don't believe that they intended to imply that when they move it from the dresser to their pocket when they take it from their pocket to the retail clerk and present it to buy alcohol when they give it to their friend so they can see it and they give it back that each one of those is a separate chargeable offense now if you disagree with us  as for felons in possession of firearms i didn't have the beginning of that question you familiar with how federal laws interpreted possession of firearms by felons i'm a general basis just holding it for a second is enough to send somebody to prison for ten years correct and the difference your honor is that that statute includes the word possession this one does not i could i'd like to reserve the balance of my time i'd actually like to follow up on a couple of the commerce related questions about your interpretation of the on before you sit down yes is it correct that under your interpretation of the law dr look here he could send an assistant to chicago to pick up a delivery from the university  because if the order is placed more directed to be placed from a location in indiana and fines for that transaction flow from indiana university in indiana then part of the criminal conduct has taken place in indiana ok so he sent somebody across the illinois state line to make the phone call to place the order if someone at indiana university in indiana has directed that the order be placed a portion of the criminal conduct has taken place in indiana interesting ok also what if the university of washington laboratory decided itself to do the first two were five or ten generations who sold from tissue and so those cell cultures did the prosecutors have taken the position that derivative cell lines are not any other part of an aborted fetus and so that would not be prosecut e and with your permission i would like to reserve the balance of my time mr chin thank your honor may i please the court the indiana statute at issue here criminalizes activities that are central to research that's facilitated by the federal government by federal statute and funded by the national institutes of health the statute bans the acquisition and transfer of what even the prosecutors here concede is legitimate why is this case in federal court why isn't this a suit in state court indiana law i'm not worried about the self been case and i actually i was not asking about just issue ability i will get to that i'm asking why if there is ambiguity in a state law the right thing to do is not to file a declaratory judgment action saying we would like to do x this was ambiguous we fear prosecution please tell us that we're entitled to do x that's the standard means of getting a question about the meaning of a criminal statute resolved without anybody's risking going to jail why isn't that being done here i agree that in the vailable thing that what you describe judges are brokers and if a little thing to do i think it's also an available thing to do to answer my question please i ask why why why you didn't do that yes why federal constitutional adjudication should be preferred over the normal process of construing a state law i'm not sure that it should only say that resolving constitutional questions is a matter of last resort george hamilton referred to the johnson case where the supreme court held the residual clause of the army career criminal act of constitutional and it was terribly important to the court's opinion that they had been wrestling with that statute for twenty years had tried very hard to resolve the ambiguities  suppose the other way of phrasing my question is why should we indulge that rather than telling you to go ask the state judiciary to disambiguate this statute i suspect your honor that had this been a statute that only criminal statute that is judge hamilton pointed out employs it could impose up to six years of criminal liability for these where of that is there some i thought you might say indiana courts don't entertain such actions and if they would refuse to entertain such actions that would be a mark in your favor that would be an answer to my why question do you think they would refuse to entertain such actions i have no reason to think that a state court wouldn't entertain a declaratory judgment action of the type that you described but the question before this court from the district court's judgment is whether the statute at issue is not only ambiguous but so profoundly ambiguous now i will ask  which is what is this case is it permissible for this case to be in federal court can indiana say well it's fine by os for one part of the state to sue another part of the state therefore you federal  this court held that the city common council and the city executive were not sufficiently distinct bangs under indiana law i must say i did not ask anything about the south bend case that deals with  asking a general question about just if you're doing now i thought you might answer this by referring to united states against nixon where a special prosecutor in the name of the united states was allowed to subpoena the president of the united states and the justices had some reason for thinking that that was an exception to the norm that one part of a governmental body can sue another but i haven't heard well neither side is mention it raises the ten and says we are the state of indiana you can't sue us in federal court and i want to know why they aren't the state of indiana now well they're not deceiving him now because there they l well look if indiana university were willing to be consistent if it were willing to say no we're not the state when somebody shows us we don't have any eleventh amendment immunity that would alleviate my problem but indiana university is talking out of both sides of its mail it is the state when somebody sues it's not the state when it bring suit by itself and it seems to me that's very hard for both of those things to be true let me say something i hope is more convincing about that topic which is even if so even if in university is is the state for purposes of just issue building inquiries by the court each one of the five claims that the i u plaintiffs asserted in this case including the ones that are poor this court and the district court's judgment itself was brought by individual human plaintiffs as well so if the court deems that i you is not a proper plaintiff in this that each of your honors had questions for mr burch about i think it's seems clear from the various positions taken by the state throughout this litigation including and its briefs on appeal that we have something of a complicated user manual for the i u plaintiffs to follow in understanding how to conform their conduct they say for example the prosecutors do but it's obvious that the transfer of aborted f tissue is only unlawful if there's a transfer of possession and ownership at least because of the that intra university or entrance transfers they say they double down on that proposition i think by saying when you look at the most at least to some extent he his comments and the comments in the briefs from the prosecutors are able to to bind the state at least to some extent so we have a variety of statements and applications from the prosecutors about  a crime which we certainly hope as a practical matter that they're that they're not the prosecutors have told you that's not the intent of the general assembly their obligation is to match the words of the statute in a way that  member of the lab transfers it to another but probably not in itself certainly we have pleaded additional constitutional theories beyond vagueness under due process grounds but i don't know th single act of the entropy lab transfer itself in isolation implicates another constitutional theory that we have but here's what we know from the prosecutors as the case has been fleshed out transfers within the lab and i you are ok transfers to other eye you campuses apparently are ok transfers under to the national institutes of health under the terms of the grants that fund this research is a crime even if it's just possession that's being transferred transfers of cellular you're just causing me to ask my question again maybe i should just give up why isn't the state traditionary the right way to uniform commercial uniform code of military justice that says that it is a crime a court martial offense punishable by years and years in prison to engage in conduct unbecoming an officer and a gentleman could know what that is that's attacked as unconstitutional evade and the supreme court says no there's no constitutional problem with it because the military great ambiguity in the hatch act and they impinge on first amendment rights the supreme court said in civil service commission against letter carriers that the right way to deal with that is to pile declaratory judgment actions and not my point is that they haven't argued any ground other than that they are here in federal court to explain what the statute means now of course their view is the statute isn't but they can't they cannot afford table to determine the meaning of or a wall at the border and prohibits fetal tissue from entering or exiting the state going to have really have a hard time seeing how this has any inter state effect at all if the if the washington lab wanted to ship something to out of state the fed ex truck can move right on through the state of indiana without any trouble whatsoever so i know i really have a hard time seeing how you get interstate effect some other context they're worried about are in fact in place under state and federal law in washington and those are delivered in washington separately for the abortion and the tissue donation decision the tissue is derived from a constitutionally protected activity that occurs in washington federal regulations already make and forbid the paying of consideration for the thing that's at issue here there's no issue about creating a market b d r l is a certified and i laboratory and the acquisition and subsequent transfer of the fetal tissue that the defendants challenge is in connection with the research that's part of national and in fact global efforts to fund lifesaving research for the most troublesome diseases are not in our country all of that conduct in all of that context exists in the transaction first between the birth defects research laboratory in seattle washington and in university in the first instance and then the transfer of fetal tissue outside of indiana for example the national institutes of health that's not in the area where the state is telling us in another context we can do all the research we want indiana on that on that issue so the state's interest is not in fact regulating the actual research in indiana although curiously they say that a the principle ground the pencil just occasion for the statute that informs how to interpret it and how to apply it is so called research ethics by which they really mean labeling aborted fetal tissue something that's itself unethical and in a circular way saying the tissue is unethical therefore it is unlawful to use none of that demonstrates anything about a local putative local interest that can be fairly weighed as anything but overcome by excessive interstate regulation that's our that's our basic view of how the commerce clause applies here to that last point your honor i think i think that's fair obviously because this is a criminal sanction nobody inductively carries lab or doctor himself wants to be on pins and needles about whether any of the activities that we discussed today including the transfers the acquisitions the risk to the sort of most meaningful terms of the statute render them subject to criminal liability so i think that is the main thing that they are they are concerned with we probably get no relief from our other theories other than in each of those theories the statute would be struck as a whole in other words there is no limiting construction by the fact by the by the court that issue in those other circumstances it's a striking of the stature of the holes that provides at least nominal additional relief secondly to the extent that that's not much additional relief obviously  five of the issues are fully briefed before this court on appeal and we'd hope that you take cognizance of them in deciding whether or not the district judge's opinion can be affirmed on other grounds university face if the statute doesn't remain enjoined and i'd first like to comment that i understood mr versioning answer to a question to suggest that the so called illinois hypothetical the idea of driving to illinois to pick up fetal tissue and driving it back and in the end which was discussed both below and in the papers on this court that he has backed away from indorsing that as a proper construction of the statu ation then we fail to see the principle distinction between obtaining fetal tissue in illinois and driving back indiana and obtaining it which is after all what we do we acquire it  acquire title ownership and other sufficient interest to it in seattle and having it shipped to indiana so anything that's a lack of principle distinction that matters and we go one step further in terms of something that matters quite quite factually to university  in understanding whether ownership and possession as the prosecutor sometimes to say is required really applies in indiana a magic in that we are transferring tissue from indianapolis to bloomington but we give it to a third party carrier to do that have we committed a crime by transferring that to the third party carrier say this indiana has a very large judiciary which would be happy to answer that  lot of federal statutes that have at least one intent element and advice of counsel if obtained honestly and followed scrupulously defeats the intent component of any federal criminal and one might think it would have the same effect in indiana but since neither side knows we'll go find out i certainly don't know your honor but i would i would be happy to know and in the course of the litigation to that representation that way to defeat the mens rea element of the statute but that doesn't appear that it's that it's occurred well what i what i hope it was whether or not the advice of this challenge is broader than that you're not worried just about transfers within the department no of answer to that was no and that's because there is at most a mere ambiguity in the statute and judge easterbrook you're exactly right that's what puts this case straightly straight into parker versus levy there's no constitutional problem with ambiguity and we'll leave that to the multitude of state court judges to work out and we were aware of no authority that would prevent indiana state court judges from resolving those ambiguities that they raise as they arise a couple of other brief point mr chin went on at length about balancing that as this court makes clear in its park pet park decision you don't even get to pick balancing unless you can demonstrate that the state indirectly is benefiting in state economic interests versus out interests and we simply don't have that here as for the advice of counsel defense judge easterbrook i don't think that really makes a difference as to ambiguity and the remedy that you proposed is correct and then finally with the district court striking out numerous times in the statute and mr chinn's argument that that was appropriate remedy that's clearly incorrect because if the statute statute is that most ambiguous this court's obligation is to uphold it on a facial challenge and allow the state court judges