went to the entire legislature as an institution the court concluded that that was a necessary interpretation of the supreme court's reasoning in the arizona redistricting commission case the plate of snow before the court eight boards of education a county commission meet that requirement for an institutional governmental plaintiff each of these plaintiffs as an entire institution and each has suffered direct injury now that we've addressed the problem of the state has sort of shifted it grounds and raised the issue of standing under the political subdivision doctrine or because our plaintiffs are allegedly not within the zone of interests entitled to protection but the court made very clear in the branson decision that political subdivisions do have standing to challenge the state to enforce a structural as opposed to an individual right granted under a state enabling act do we even proceed to that question that in prudential standing we have article three standing the twelve the one this is the b one motion the district court found article three standing and the governor defendant appellee has conceded t the district courts the treatment of our case below in which it is assumed that we still needed to address these issues so while well i mean that can be a problem you know because i mean you're stuck with that i mean if lexmark doesn't it lexmark altered the terrain as you at some point in your brief acknowledge that and then making an argument full throated under the less mark rubric doesn't that create a problem of waiver i'm sorry you were doesn't it create a problem when you proceed to the enabling to the political subdivision no standing question that was raised and particular under the hugo decision of this court i guess my question is that if the if the lexmark alter the train as to what is credentials and then is it incumbent upon one to argue to take a position well you can do whatever alternative you want which don't you have to say what you think lexmark means and argue under that rubric too and what we think lexmark means your honor is that the zone of interest and alice's the statutory interpretation analysis that justice scalia reserved in the lexmark opinion is the one we need to address and we have so is that all that remains of pre digital standing is that your only certainly the academic reviews of lexmark suggest that there is the third prong remaining for whatever it's worth it i think it's really pertinent in this case that is a question of third presented to the court we want to know what your position and we need for you to speak directly to the mall as it stands today our position is that the article three standing fighting of the district court and conceded by the govern standing i am i was left scratching my head that in your up opening brief you made no attempt to address that point by point particularize analysis you cited the exact same paragraph that the court had talked about in its order below without saying why the court got it wrong in saying that those were not sufficient to provide political subdivision standing and once i missed something and i read it pretty closely why not a problem i mean to the court said  approach stated in the ransom individual rights under the alleged violation of the so called normal commerce clause francisco was very specific in saying if you're dealing with the structural rights u nder statute in our case under the enabling act in forcible through the supremacy clause that is sufficient standing for a governmental entity to sue its quote parent sign ok i understand that point but your you  have to stand and fall vase on within your complaint right now therefore you have to stand or fall vase upon what's in your complaint do you not that yes indeed and even if you're in your complaint there are certain allegations that are supposedly providing a basis for an argument a political subdivision standing the court below says i've looked at every one of the paragraphs that you cite and they are insufficient to plead fact it would give you clues a course of division standing and then on laid out the relationship that our plaintiffs there are to the state of colorado and their special constitutional standing both under federal and state constitutions that the did the court below found in adequate doesn't mean that we didn't make those allegations and in our complaint we lay out the relationship that our plaintiffs hangout with the state of colorado in particular the requirements of the state constitution that our school board hugo i when i don't understand is just because if i understand it correctly the since you're drawing to an individual rights in structural rights isn't there still a question of whether the the anathema to the entity actually provides confers didn't it's on you as opposed to others more generally i mean it seems to me that that really is the question here as relates to the enabling act whether there can be any suggestion that that's doing anything properly the beneficiaries of rights and protections under the enabling act they are and let me explain why i reached that conclusion counties and school districts existed in the state of colorado before statehood the enabling act itself recognized and respects the responsibilities that counties and school districts had at the outset before state to deal with the responsibilities in particular public education but also county jurisdictional issues it was the counties that determine who would be representatives under the enabling act to the original state constitutional convention they have  interest such that the plaintiff interests are not so marginally related or inconsistent with the purposes implicit in the statute here the neighboring act rather than being implicit is very explicit about the need to maintain a republican form of government supreme court decision in clinton versus new york which arose under the line item veto case and was brought by the city of new york that had been injured by the exercise of a line item veto no where in the analysis of spending in that case was the court concerned with whether or not the city of new york have a particular interest being protected by the present mccall's of the constitution or the separation of powers doctrine it was sufficient  good morning thank you judge briscoe in may please the court fred yarder solicitor general on behalf of the governor all rado this case has presented a number of difficult issues of the past seven years but as it comes to this court there are only two basic question both of those issues are independently dispositive insufficient to affirm the district court's i'd like to address each of them in turn if i could on the question of forfeiture and waiver page twenty two of the district court's order is very clear it marks quote the end of the road for this litigation under cases like richardson which is the twenty eleven decision of this court now in their reply brief for the very first time ever in this stage of the case plaintiffs make a new argument can combine any combination of arguments available under rule twelve into a single motion what the district court ordered us to do below before we filed our motions of was file a brief a motion only on the issue of standing now since day one in this case since twenty eleven we have argued article three standing we have argued prudential standing the political subdivision standing issue is new because political subdivisions joined this case for the first time a twenty six teams that was the first time that those arguments were available to the governor so what we did relying on the district court's order it's file it roll twelve a motion raising all of the arguments we had on the standing issues in this case as the district court prepared us and plaintiffs in response and this is page i think it sixteen of the reason opposition has appendix page fourteen eighty nine simply said that they weren't under any obligation to address the zone of interest or the generalize the end of the road now plainness during their argument to this court had have done some some confusion about the zone of interest test and the political subdivision test i want to make clear that those are two separate arguments two separate threshold an article three standing analysis i think so let's did introduce some confusion about where the zone of interest test it's well what i will say is plain to say cases the united states supreme court and bank of america versus city of miami said even after lexmark we hold that plan to satisfy the zone of interest quote in quotation marks prudential standing tests so whatever you call it and however you classify it simply labeling it prevention will doesn't mean that plaintiffs are under no obligation to answer an argument that was clearly raised in the rule twelve motion before the district  i don't think lexmark gives them the out that they seek they seek to assert in this case do you except the premise that the political subdivisions are substantially independent from the state of colorado we haven't made an argument they are not we agree that they are substantially in the pens they fail the political subdivision standing doctor and for a very simple reason that is because the only federal statute that they've identified section four of the guarantee or excuse me section four  identify a statute enacted by congress that specifically provides rights to municipalities they haven't done so what they have done is point to other provisions of the enabling act the provisions to create the school land trust in the state of colorado which we don't dispute are enforceable by political subdivisions in appropriate cases for what this court's decisions hold going all the way back to ca tribe housing authority in one thousand nine hundred one the political subdivision standing isn't based on an act as a whole it's based on a specific provision that a political subdivision is attempting to enforce so in that case with section thirty six zero four of the federal housing act and what the the housing authority of the ca tribe had to allege is that they were quote genuinely injured by conduct that violated its rights under that section of the fair housing act that's at page eleven ninety three of that opinion so that's what we're arguing in terms of the political subdivision a federal law a matter of minutes apologies have no quote inherent right of self government that's the williams case dating back all the way to one nine hundred thirty three and specifically in the guarantee clause in republican form of government cont the sixth circuit in the phillips case said it would be quote revolutionary to recognize under the guarantee clause the rights of municipalities to sue or excuse me for plainness to sue to obtain guarantee cla palliser's which i think is essentially what plaintiffs are attempting to argue in this case so the basic message that we have for the court this morning is that there are two perfectly sufficient and independent supreme court held in lexmark might not be described as a matter of article three standing but what it is and remains a fresh hold ground that is out of the raised in a motion to dismiss which is exactly what we did in response to the district court's order we follow that order to it see this court and the supreme court continue to label that question a question for eventually standing up if there's any argument that we were entitled to raise that threshold i think there's no argument no valid argument that plaintiffs have the right to extent that it is a part of the presidential standing rubric the fact that as you would allege they forfeited and waived it that would defeat any potential potential presidential standing argument i think the only one that would be standing would be to to be addressed would be the question of political subdivisions and no to judge holmes what i'm saying is that they have to meet the same but the zone of interest has even to get into court here if they forfeit arguments on that and then waive those arguments in their opening brief legislative history in trying to determine who is protected by that constitutional provision or that statute i think the article three inquiry sort of in its narrowest is injury in fact how they should and regress ability that means that after you've gone past article three standing and so wouldn't be a threshold requirement article three standing is a threshold requirement so i'm not clear what you're getting at i understand your concern judge holmes  what the supreme court in this court has held is that when presented with various threshold arguments including article three and potential standing a court may choose among them in disposing of a case that was  threshold arguments but but i guess what i'm saying is at least what seemed logical to me is what you have is essentially three different potential arguments you have the article three standing which is i understand you're not contesting i didn't hear you of interest test then i understood your position of the they waived that therefore they lose their yes ok and then that the last thing we're talking about is local subdivision standing and what happens there that's correct or all i'm saying is such accounting no it did not hold that prudential standing is gone it says this consists with the united states supreme court's arguments it can put to one side article three concerns and dismiss a case on prevention rather think the question there was third party standing which i think even plaintiffs agree is a potential stand in question briefing in the district court t two eight of your reply very well how does that help you i mean if you don't talk about it in your opening and the district court said you forfeited it that's a problem i mean you know the district nurses you these branson concerning the relationship between the federal government and the states not the relationship between the states and the private market which was at issue and that case we we also would make the point that looking at the sort of the jurisprudence jurisprudence behind the political subdivision doctrine going back to the williams decision and the trenton decision which council referred to both of those addressed situations unlike ours in which there have been a later created into a team within the state of new jersey in particular in the trenton case so the the metaphor there of the parent state made some sense in our situation our counties and school districts will if anything are playing us are more like cousins or sisters to the state than it is a parent child relationship even if that's true aren't you were lying on that a lot to support your claim if you are doesn't that mean it that will law has to give