i've had the experience of getting in a cab and asking men to bring me to this address and they take me to another courthouse and says that's where i need to be so i don't know if that's what happened this morning but i'm sympathetic good morning good morning and i may please the court i'm jonathan way i'm here on behalf of the legislative defendants i'll be splitting my time with qwest bomb of the attorney general's office who's representing florida state and the state of florida  the th amendment to the united states constitution guarantees states not just the freedom to from judgments and the federal courts but freedom from the burdens of litigation bought by private plaintiffs itself and the district court's order denying the motion to dismiss violated this right and three ways st title to is applied in this case does not enforce any constitutional guarantee and therefore it cannot abrogate state sovereign immunity  because the legislature does not receive federal financial assistance it is not waived its sovereign immunity to rehabilitation act claims and rd the kind of injunctive relief sought against the official capacity defendants in the complaint is not the kind of a belief that is permitted under the expert a young exception to state sovereign immunity mr baum is going to primarily address the title to argument but i'd like to touch on two key points there the st of the st point is this when you have a comprehensive statute like title to the specific question that the court needs to address under abrogation is whether there is a sufficient record of state constitutional violations to justify the congressional remedy under the class of cases that issue and this case the class of case that issue is the provision by the government of information about government proceedings to people who do not actually protect attend those proceedings and in the congressional record there was no documentation of any note out of but i know you characterize it that way i see it a little bit differently you're talking about whether the government has the obligation to produce information the way i see it the government's already made that choice they're making this information available to the public but the question here is can a person who is hearing disabled access the information that that's available to everybody else does that and so that's an equal protection and the reason i characterized it as i did is they're simply two avenues by which aggregation can occur as the case law is developed one you can have a classification that is subject to hide and scrutiny which is being quite make clear and under title to the only context in which that is then the basis or abrogation in any federal court is in the context of education which as we point out in our brief as just an extraordinary history of invidious unconstitutional discrimination against the disabled that stretches back decades and decades and which as this court pointed out an association for the disabled has a very strong impact a disabled person's ability to participate in society the videos of online videos of legislative proceedings at issue here lack both of those characteristics to start with their their brand new and there is no sense in which there's been a long history of discrimination be a constitutional or unconstitutional against disabled people in this context and the value of the video again owing to its very new nature is not in any anywhere near the kind of significance practical significance to an individual that the right to participate in education is so i think it's easily distinguishable from the education cases such such that is no basis for using the equal protection formulation that your honor i just made as a basis for  this context by contrast for example of the th circuit and got many corsa determined that ordinary rational basis is not a basis for aggregation in the titles to contacts following the supreme court's decision in garrett that under title one of the a day you couldn't have abrogation when they simply rational basis of you here and since there's actually no relevant history of constitutional violations by the state in this context then there's no basis for allegation under title two briefly with my minutes remaining i'd like to touch on the rehabilitation act issue and make clear what what the states argument is on that point the the sta put and uncontroverted declaration saying the state has not received any ski's and that the legislature itself is not received any federal financial assistance for at least twenty years which is law as long as the legislature is records go back that that declaration is uncontroverted under be shared transportation this court has made clear that the immunity issue should be resolved at the time it's raised and the case should only be allowed to proceed so far as is necessary to resolve the immunity issue and here the district court simply delayed that issue until after an answer and until after me that's discovery took place and under bush shard that doesn't give the the legislature to the right to immunity from suit  beg your honour's and may please the court christopher baum on behalf of the office you defendants congress did not validly abrogate sovereign immunity in this context on the one hand that there is no fundamental right in this case that congress sought to enforce when it was an acting title two that is subject to heightened scrutiny in this case as so congress has authority was at its nadir year on the other hand congress's remedy in this context is not congruity or proportional to the harms base so i'd like to begin with a couple of background principles st the supreme court has never upheld in africa where there was no right subject to heightened scrutiny at issue and in its most recent case coleman the court invalidate even though there was a right that was subject to heightened scrutiny because congress had not detail a sufficient pattern of of widespread and unconstitutional conduct this court as as my colleague indicated has only done so in the context of education the other principle that's important to remember is that it is the court's increase not whether there is any fundamental right at issue in the case it is whether there is a fundamental right that is subject to heightened scrutiny that congress was seeking to enforce when it in acted title to now the supreme court has told us what those rights are and those are the right of access to courts protected by the due process cla and by the confrontation clause which is subject to heightened scrutiny and the equal protection right at issue here which as the court held in europe is not subject to heightened scrutiny therefore there is no fundamental right that is subject to heightened scrutiny in this case now what about the petitions cause of the constitution that allows it gives the right to petition the government for redress of grievances well your honor i don't think that that's at issue here because what they're actually asking for is the right to access the text of legislative proceedings now as as you indicated earlier the way that you conceptualize this case is as the right to equal access it because this access is already being provided it is the right to equal access in this case and that means that that's simply an equal protection claim which is not subject to well i mean i understand the way you characterize my question wasn't my argument  but what about the petitions cause not i mean setting aside the equal protection question i mean the they argued in their brief and that seems like you know if he can't  understand what's going on then how is he going to have the right to petition the government for redress of a grievance the supreme court has rejected those types of arguments  where where people have argued that there are lack of access to particular information in the government's control denies them the right some some right under the st amendment because the court has held that the constitution is not a freedom of information act so the right to access publicly government information and public information such as the text of legislative proceedings is not a fundamental right you've gone back to the equal protection that's right your honor but that's because in how shien's and in this court case and for the usa the court held that there is no st amendment right to this public information even when plaintiffs argue that they require that information in order to make sufficiently informed decisions about their elected representatives and in this case there is plenty of information that's available on both the florida channels two hundred and forty seven feet that is captioned in the  massive amounts of text of legislative proceedings that are available on the web site and other sources of information now i'd also like your your over your time your honor i believe i had six minutes oh i'm sorry  congress did not detail any pattern of unconstitutional state action in this context let alone a widespread pattern that could justify congress's abrogation in this context and as the th circuit held in klingler the title to suit sweeps far too much constitutional conduct and prohibits far too much constitutional conduct in this context to be constitutional and the fact that it it per it may might prohibit the state's conduct here shows that congress was seeking not to enforce the equal protection clause but to redefine the scope of the equal protection clause and there is no two because that case involved only the right against equal the equal protection right now in lane the court upheld congress's abrogation in title two because that case in also involved the the court explained that it has to looks at the specific context whether there is a widespread pattern in the specific context of the class of cases at issue and here and that is access to the text of legislative or seeings and there is no history of  unconstitutional discrimination in that context as this is just a you know this is a somebody in the judicial branch where we basically react to the cases that are brought how hard would it be so now when my mother calls me on my cell phone and leaves a voice message i get the transcript of what she says i mean it's not perfect but it's it's pretty good i mean how does it doesn't seem like it would be that hard to to do a transco not but i would direct you to my colleague who has a more firm understanding of the costs and difficulties of providing transcripts and translators at the many many committee hearings that occur simultaneously in the capitol during the  good morning may it please the court my name is mary vargas and along with courtney cunningham and scott dinon i represent the plaintiff that believes in this case and the sierra and the national association of the deaf and we'd like to express our appreciation to the court for providing captioning for the proceedings this morning so that mr sierra who's in the courtroom can have access this case is about the right of people who are deaf and hard of hearing to participate in the democratic process and appellants argue that this is an issue and i'm i'm quoting the legislative defendant's brief here page thirteen of relative unimportan and i would say that we profoundly disagree with that statement in providing hearing citizens access to legislative proceedings and denying that same access to people who are deaf and hard of hearing appellant's strip my clients of a fundamental right to participate in our representative democracy rights which requires them to have the ability to have access to what's going on in their government so that they may petition the government so that they may have an opinion that's informed what's happening in their in their democracy this is after all a government of the people by the people and for the people and that means all the people not just hearing people given the extraordinary history of discrimination against people with disabilities by the states including by the state that is the defendant in this case and the importance of the right that's at stake the district court correctly concluded that there was a valid abrogation of the state's sovereign immunity so pursuant to tennessee versus lane and this court holding in florida international university the st two parts of the city of born test an abrogation have already been conclusively established there is an enormous history of discrimination on the basis of disability this was documented in tennessee versus lane which referenced the preamble to the a d n a and a quote from that what it said was individuals with disabilities have been subject to a history of purposeful an unequal treatment and relegated to a position of political powerlessness in our society that is very literally the issue that is presented in this case access to participate in the democratic process so this was precisely the right that the title to was passed to was enacted to address and it was a right of great importance  addition to the history of dimmest discrimination which is pervasive and i believe the court used the language beyond clear beyond peradventure the remedy that was  well i would say that it's somewhat broader than that your honor in a representative government there does it include that yes your assertion is wrong women pointed it's broader than that because without the understanding that hearing citizens have of what's in the access to information that hearing citizens have of what's going on in the government it limits a person's ability to vote to participate in to contact their representative if they don't have access to the information that other people do on which to form their opinion which to form opinions then they have a restricted ability to do so now the state would say well not all hearing people use the access that we provide that's really not the point and certainly not something that we would encourage when there's a citizen who is interested in access to information that the government provides and they're unable to access that information simply because of their disability that's the very essence of discrimination that goes right to i understand the defendant's argument they describe it as access to in for government information that's held by the government so i think of things like corporate business filings information that's in the government somewhere that somebody might go and try and get this is really something different this is legislative proceedings and the like which are put into the public realm in the public sphere for the public to have access to the defendants obviously feel this information is important or they wouldn't provide it and we have described this as access to the democratic process that's really what it is and that's certainly what the court found in the writing or case in oklahoma which is actually a very very similar case and i would note that since the time of the briefing in that case there has been final judgment entered in favor of the plaintiffs against the house of representatives so that court described the the right as access to the democratic process as did the district court here it's not cold hard facts held in a government vault that our clients are trying to gain access to they're trying to gain access to the hearts and minds and debates and information that's  debated in the public sphere which they are excluded from purely because of their disability i'd like to address the issue of florida international university in this case my understanding is the defendants concede that that case would need to be overturned in order for them to prevail here that case there was not a fundamental right at issue the court's reasoning in that case as i understand it is that the risk of not having access to public education is that those students wouldn't have him well to participate in the democratic process it was a concern about a significant future harm in this case that future harm is today it's not something we're concerned about happening in the future if somebody doesn't have access to information they won't be able to participate in the democratic process these are citizens at the door wanting now to participate in the democratic process so certainly if that was a concern that justified a finding a valid abrogation with respect to title two in public education which is also what the th circuit found obviously in constantine then it would certainly have to be the case here as well where the citizens are actually trying to access the democratic process and are unable to do so public they're just they just want to have access to the information that's already public the state says well that's just an equal protection argument and if it's not a winner talk to me about why you think that is a winner or you know tennessee versus lane obviously talked about access to the courts and that's obviously a fundamental right that's critically important and i don't mean to denigrate that in any way but the rights that are at issue here seem a far easier case to me than then was that issue in tennessee versus lane the right to participate in the dead and democratic process is the bedrock to our system if you don't have access to that you don't have the ability to participate and because of the the pervasive findings of discrimination by the state that tennessee versus lane documented in in the in the court holding  those all of those documentations really related to what's at issue here there were some historical documentation related in tennessee versus lane relating to obviously the physical access to courtrooms and that's critically important i don't mean to denigrate that however the record that was documented in tennessee versus lane went to critical foundational rights history of discrimination in marriage laws in voting in access to public services and all of those were at issue here you know we're in a state where the legislature enacted laws setting up farm colonies and in themselves said that these were to take off the burden of having people with epilepsy and people who were feeble minded of the moral burden of having them exist in the state and so this to me seems like based on the history of the a d a s based on that significant documentation of exactly the kind of discrimination that we're talking about here this to me seems to be a far easier case than tennessee versus l does that answer your question or i think i think so thank you if the court doesn't have any further questions i'm happy to turn it back to my brothers on the other side all right thank you thank you old thirty seconds of this to my colleague there's a central problem with the plaintiff's title to abrogation argument in this case and that that is that there is no record of unconstitutional discrimination as it relates to the rights that are still asserted here there have been repeated references to the general record of discrimination against the disabled but if that were enough then garrett would have been decided exactly the opposite way there was the exact title one of the idea has exactly the same history of general disability discrimination underlying it and yet because there was no fundamental right at issue and garrett the supreme court determined that that title one was not can grow and proportional there and that's the exact same scenario we have here there's no documented history of state unconstitutional discrimination that could support abrogation in this context which i would like to be clear is a different question whether there could be injunctive relief available for violation of title two we're talking about where you agree it would be available for violation of title to the injunctive really a properly framed ex parte young relief would be available for violation of title two assuming that is otherwise constitutionally sound we don't dispute that at this stage of the case your honor well as to the idea the reliance on a jet i'm sorry i'm the all that well is giving me my thirty seconds as the idea that there is a fundamental right that is implicated here that as a matter of federal constitutional law there is not a generalized right to participate in the democratic process whether there are specific rights that have the function of enabling that dissipate and none of those specific rights includes the right to be able to watch from home video proceedings of legislative proceedings these proceedings are open to the public there are accommodations made for those who want to attend when there is no allegation that those proceedings are not available it is specifically the videos that issue here and the videos themselves are and is a matter of federal constitutional law not of federal constitutional significance so they cannot support abrogation thank you thank you so just a couple of quick points st with respect to the petitioning the government argument the supreme court expressly held that the right has to be among the rights that congress was seeking to enforce when it in acted title two and that st amendment right is not among those rights and therefore that argument just doesn't wash here and nd with respect to the access to the democratic process and the text of the legislative proceedings here  garrett i'm sorry physical access to a courthouse are you arguing that if it if the requests from the plaintiff in that case had been visible access to its value house it would have been a different result that may have been a different result your honor but that's because the court said in lane that the rights at issue that congress was seeking to enforce was specifically the due process clause and confrontation clause guarantees a right of access to courts which the supreme court has always held is subject to heightened scrutiny so while they may have come out differently this this case is squarely on point with garrett because it involves only the equal protection right and it involves the same affirmative defenses and doesn't involve access to the courts