good morning on our may please the court the morning the primacy of the first amendment as an area of particular federal concern creates a presumption of federal jurisdiction both regard to ripeness and with regard to abstention i'd like to first address the ripeness issue since that was most recently briefed by letter brief as requested by this court and the redness is your it revolves around how we understand what occurred in the state court parallel proceeding below  or at least pella to this case where a state court injunction is currently pending on appeal before the montana supreme where you get to that point was it right when it was filed yes your honor there was no question regarding ripeness at the time of this the state court complaint and the federal court complaint were roughly filed around the same time i believe the state court complaint was filed i'm not talking about the jurisdiction counsel what was the factual status have had the armstrong requested this so the ruled come into effect of that time there was there was no other court proceeding that hadn't joined or prevented that rule from being administered by the department of revenue had the armstrongs been denied their request or had they had been made at the request for this tax treatment no your honor they have not yet done so so they basically are relying on i don't mean to interrupt you but i also don't want to slow you down and i think your answer is that i should understand that as of the time they filed they they're relying for rightness purposes on their intent to take advantage of this provision that's correct your honor and both supreme court and once served at present it's clear that you don't have to go through the future how process of seeking something you can't receive in order to establish justice should billet and that's that's what you're relying on for the time of filing and then the state injunction corrector on a place ok so then subsequently a preliminary injunction was issued by the state court proceeding and kind of the oddity of our of our timing of this stage is that all of the prior briefing before this court occurred while there was the privilege junction in place and then subsequently after all of that briefing occurred a state court injunction issued and we would argue that because that still pending appeal should be treated just like the permanent injunction would be which is that this is pending future state court action still and that while we see while that is pending appeal there is ongoing first amendment injury in the sense that the delay here and that in the existence of a law that may a rule that may be upheld by the montana supreme court chills the exercise of the free exercise rights of students and families and of religious schools who want to take advantage of the tax preparer because they may make a decision to put their child in a different school because they don't want to interrupt and have to move childhood midstream is that that's a that's correct your honor there's still an uncertain status with regard to state law that will influence those decisions and it also puts the member schools  i in this actions well at a camp competitive disadvantage of secular schools because they can't offer with as much certainty that financial assistance is going to be available and so even with that state court injunction in place has voluntarily abandoned the challenge to action and that essentially unripened the claim is strange that phrase ology is but that's not the situation here where the department of revenue clearly is seeking to enforce its rule and and injuries capel repetition in the sense that it's very plausible the montana supreme court may well reverse that state court but also because as as i was discussing a moment before there is ongoing injury where there's a chilling effect created by by the law even while it's not yet in effect and the supreme court has held that laws that have not are not currently in fact can impose a chilling effect for example in virginia versus american booksellers association where there was a a pretty not only a prima foresman challenge but a challenge before the law even came into effect and the court said that that was that was still proper claim to raise so i don't think under their minister ripeness the it would be improper for this  you want here you agree would reduce montana's tax revenues no i don't think so your honor at least not your client wants to avoid a tax they want they want they don't want to pay this money they want this credit it would reduce revenues certainly the they are our clients are safe seeking to take advantage of the private scholarship donations would provide be provided by other individuals who would take advantage of the tax your clients want to get a tax credit from the state from the revenue department there the defendants in the case to get to reduce the flow of taxes to the department of revenue of montana it may indirectly cause a reduction in revenue but this the supreme court's been very clear with then then arizona's revenue would have been increased maybe indirectly maybe only by a little bit you know as you indicate but but isn't this case positioned precisely in a one hundred eighty degree turn i don't think so your honor because there's nothing in the record that indicates of there that individuals we will be dissuaded from from from taking advantage of the tax credit they were first off of her question really just take it one step at a time yes or no because the question is in  case if they the armstrongs prevail then the state's revenue is diminished isn't that right there's nothing in the record indicates this isn't that the practical result they want to tax credit what  would all the plaintiffs in this action are seeking is to do is to allow students to take advantage of the tax credit to go to a religious school but there's nothing in the record that indicates is that there are going to be fewer individuals taking advantage of the tax credit or that there's going to be fewer tax a lower amount of tax credit scholarship money so there's there will still be secular schools receiving the money is are your way up here at like thirty thousand feet the practical effect that your clients want is that they can make this donation and get a tax credit and therefore pay less taxes they met the reasons they're doing it for you to support religious schools all very nice but but that is the practical step by step effect of what you want to have happen the revenue department has said that they're not eligible for this tax credit and they're saying yes we should be and we want the tax credit and we will therefore want this money that would otherwise be with the department of revenue right in that in that sense i suppose your honor this case is similar to the twenty fifteen cases decided by the u s supreme court where i believe it was colorado wanted to shore up the tax revenue  attempting to receive through online sales by requiring online retailers to provide notice to purchasers that they they were they were responsible for the tax liability on line sales and it's clear that there was a lot of tax liability and it was also very clear on the record that requiring all those retailers to provide notice would would assist the state of colorado not taining tax revenue in the supreme court said even though it's clear that this will indirectly impact the state ability to collect tax revenue or challenging that notice requirement because it's only indirect it doesn't directly enjoying the collection of state tax or what what or what would that case place i'm sorry your honor i should have written down it's in the letter briefing so let me just open the letter briefing i've got ok that's fine i just want to be clear we don't doubt for a minute the sincerity of the armstrongs views here but the question is for him and there's this tax and junction act and we've been counseled we have a clear direction that we shouldn't doubt for a minute the state's ability to go forward the state court debility to go forward and resolve this issue and my understanding is this very claim is being it's sitting right now with the montana supreme court yes that is correct or regard to that and further if i if i if i disagree with you and i i i'm having a hard time distinguishing this from hips because in hibbs you know we're looking at this very same tax deduction situation and as i said i've described  the as the one eighty where it seems to me that what the supreme court said in that case is well arizona's revenues would actually be increased and as i understand it if the armstrongs prevailed here the states revenue would be would be would be decreased so i'm i'm having a hard time with your argument that hibbs doesn't really signal pretty strongly that we should not be asserting jurisdiction here do you want to give this one more shot and tell me why i should rely on hips yesterday because of that the colorado case we cited relying on that that's correct or at least was very clear that it was very clear on the record there that it would harm colorado's ability to collect state taxes but because it wasn't directly in joining the collection of that state revenue the tax injunction act was not implicated and montana has has itself state in its letter briefing that doesn't think that there's a tax injunction act issue here and i think that they're relying on a different reason though but i grant you that they get to the same place with regard to the first amendment there's an even stronger presumption against abstention stronger even than the general unflagging obligation for courts to exercise their jurisdiction and so already we are in a realm of simply two then capitol square review board versus pine at the supreme court essentially said we're going to look at free exercise establishment and speech on par with each other and certainly the plaintiffs have brought chilling effect claims under the free perpetuates the constitutional issue injury being alleged by plaintiffs and that's why pullman abstention is is inappropriate in first amendment if the court had district court had subject matter jurisdiction so that if there wasn't a tax injunction act problem and the court decided that there's good reason to abstain should the case have been dismissed no and that's what that's probably what the clear is they are that exists here is that under versus ryan or under the cedar junction and enough and a lot of brief in the in the district court i think it would create greater judicial inefficiency to dismiss and require us to do all of that briefing over again rather than just hold the case in a band and if the montana supreme court ultimately holds the state court we would voluntarily dismiss and so in any case that would be that would be the most appropriate remedy assuming the abstention was proper here  will hear from the government right there was some question at the time the judge kristen asked about was it right but the time that the federal action was filed that may have been the case over the course of time because the state court proceedings have occurred so quickly we're now before the montana supreme court we have oral arguments scheduled for one month from today all of the issues that are raised here for the federal claims the equal protection remove expression and night you relying on your right against your time are you relying on the injunction do you think it was right and then gotten right let me put it this way actually i'll take a step back it wasn't right but the time and here's why because the state case proceeding was filed before the administrator rule that prohibits religious schools from getting these scholarships ever went into place the federal case was filed shortly thereafter the plaintiffs in armstrong have not filed for a tax credit and they have not our records show that they haven't made a donation and are and one other item for mayor and also that i apologize but also that they haven't requested a scholarship at this point right he gave you that he can see that all that point i think very candidly and i appreciate his candor but but my question is do you have a response to his authorities what he said is he he thinks that the law is on his side that they don't have to go through those formalities is sufficient for for them to to assert that they intend to no i don't with me today have any any response to that ok but that's your legal position on rightness yes the legal position or rightness is that it's before the montana supreme court they haven't applied for an tax credits and that it's it's in the court's hands and can be decided so they are if i may they aren't out anything they have never been denied a tax credit they've never been denied the opportunity for a tax credit because it's the rule is never gone time so could you talk about the tax and time trying to well under the circumstances this case we didn't think that it specifically applied i don't i don't have the briefing book on let me ask you are you familiar with the ninth circuit case of wind versus killi attacked the grant of a tax credit which is not one of the three types of state court procedures barred from challenge in federal court by the tax injunction act the district court erred in dismissing the action pursuant to that that seems to be  taken on your letter grade that is that is all right so if you get past that then you're back to palm yes then we get back to point under the circumstances of the case what was being raised by you three judges was questions specifically with respect to the montana issues article ten section six of the montana constitution is a very unique and very prohibitive statute for any public funds for any purpose to go to religious schools it says directly or indirectly it doesn't just say appropriations it says appropriations or payments so it's very it's probably presenting this before the montana supreme court it's the most the strictest of those articles legislature when it passed and before ten that is the law that allows for these scholarships they specifically set aside three million dollars per year and then gave a growth rate to it if it if that three million dollars threshold is met we've been unable to find any other tax credit in montana that has specifically indicated ok we think it's going to cost the state this amount of money so it does in fact take away it's those types of state issues that i'm sorry to the case have been dismissed should this case have been dismissed district in the district court should the case have been dismissed after a determination that abstention with appropriate we think the better course probably would have this should be stayed and it can wait while the state court proceeding i'm not trying to be give you a hard time but you you keep saying things like under most circumstances and the better course would have been and i'm trying to figure out if you're really telling me you think that that was district discretion to do what the tr court did or do you think that was error in other words i think it was error in the court should have stayed so you're you're pro pohlmann but the case ship been state is that your yes bottom line yes essentially that these  plaintiffs the armstrongs may have a right if the state court proceedings don't fully cover all of the issues before it and if there are any remaining issues then the armstrongs should have a right to be able to go forward so you know this action  courts are very reticent to stew abstain in for some cases but in this very circuit bar was that exceptional case where it said we think that the state courts might limit what we're going to review later and so we want to allow the state courts to go forward and secondly because that case was already before the california supreme court at the state level then this circuit was willing to allow the state case to go ahead without a chilling effect and without any expense in the way and that's precisely what we have here obviously since i've since you know that the montana supreme court has the case before it they have the federal constitutional claims along with the montana constitutional claims are are all the claims that the plaintiff wants to a certain federal court may addressed in that state court action are they comparable side by side or will they be without some remedy on something they won't be without some remedy and something we have briefed all of the equal protection claims claims and for expression claims and oh course i doubt if there are some claims that remain take that this state the federal court litigation is still available after the states lifted it absolutely and i should add that there are several amicus briefs that have also from organizations around the country on both sides that are briefed the  the case is ripe then the pomona doctrine applies we've also addressed the colorado doctor and i'd be happy to answer any questions but generally speaking that is that's available if the proceedings are parallel and if there's exceptional circumstances the only thing i wanted to really address with respect to that is that in their briefing the armstrongs have indicated that the courts don't review don't allow for the colorado doctrine particular case that it's a it puts a greater weight on it under the circumstances this case the exceptions apply the even though it's a way to your standard if you want to put it that way there's parallel proceedings where the state court is looking at it already the state court case was filed before the federal court case and all of those questions that are before maybe before this court in the future already before the montana supreme court so they can but fully be answered i hate to be circular nabi it's because i just don't have enough experience with this tax injunction act but in your responsive brief you said that that act is intended to prevent in joining the assessment and collection of taxes where the taxpayer was avoiding paying those taxes and it should be read to restrain state taxpayers from instituting federal actions to contest their liability for state taxes which is the way i understand what's going on here but then you go on to say it doesn't stop third parties from pursuing constitutional challenges to tax benefits well this is a direct party who wants to avoid this tax who wants this credit so i don't understand what the point was to that differentiation that you were making i think you wanted the distinction that we were making is the difference between  t and collection of taxes versus tax benefits a tax credit a tax deduction right and the like you're focusing on the end of the center we are focusing on the better so what about third parties and seems to me that i join my colleague it seems to me the supreme court was making a very clear distinction here between a third party making this challenge and armstrong's who are in a first party situation but your brief doesn't make that distinction at all it doesn't we didn't address that at all we went we went to the end of the sense as you said out the difference between because that was fundamentally what was going on in hibbs in hibbs the third party who wasn't trying to avoid the tax but was trying to say you shouldn't be giving this tax credit to other people was challenging it and the supreme court said the tax junction act would apply there as opposed to the party who would be benefiting from the tax credit thing i want this tax credit and therefore i want less revenue to go to the state and under the circumstances those case i would agree with you that the tax injunction act may actually apply for a first a first party who wants to benefit from those tax credits and take money from the public service ok thank you yes i just the other distinction i think you didn't make in your letter brief but i want to get your position on hibs as i said that the plaintiffs in hampton spring court found very significant if they prevailed the state revenue would actually be increased not so here if this is a one eighty isn't it that is a one eighty as i've indicated the state montana state legislature when it passed the law set aside three million dollars as if to say we're going to lose this revenue because we anticipate there are going to be several families who want the tax credit to be able to get scullers right and so it just it just really surprised me that you weren't embracing hibbs i thought your letter brief was going to be all about hips and you seem to be paddling away from it i think it's that is true and that's an interesting point because we went directly to the hyper technical aspects of the of the tax of what taxes are within the expenditures of state legislature and step and quite possibly just step right by the first the first part of what the court was looking at in that case i see if we were to apply it in that fashion i think that the tax injunction acme may apply thank you your honors just briefly in case it's helpful the citation to that colorado supreme court tax injunction act i'm sorry the supreme court case about a colorado taxes be claire's direct marketing association versus brawl that's one thirty five supreme court eleven twenty four that's a twenty fifteen case and that's where colorado imposed sales tax requirements on online purchases but it was the responsibility of the purchaser  to go ahead and file to go ahead and submit their their purchases and pay that tax themselves and so they the so colorado realizing it was losing a lot of money through online purchasers that were not  voluntarily submitting those purchases for their tax liability said we're going to impose a notice requirement on retailers that tells the purchasers i think of it if it was an over over one hundred dollars or something they were responsible to still pay taxes on paying the tax right it's the consumer so i think a third party i think there are they are your honor but the court did not make the distinction didn't bases holding on that in fact the court specifically recognized that even though there was a negative impact it's quote a negative impact on versus reiner was a case cited by the by the state that where in which the california supreme court was indeed addressing a question at the same time that the case was presented to the ninth circuit but the the other factor in our motive are the influence the court in deciding that abstention was appropriate where there was that there was an uncertain state law question with respect to the meaning of the law being challenged i hear there's really no dispute over what the department of revenue regulation me