this is a case of here educational services north america versus frank augustine and all the minutes i have here indicate that mister meyers will be arguing on behalf legitimate legislative activity as the court surely is well aware the supreme court has mandated that those clauses must be broadly construed to effectuate the purposes and so they go well beyond literal speech or debate so they include things like committee subpoenas lewd legislative reports they include investigations they include fact finding missions and they also those protections extend outside the chamber walls the one thing that must be excluded from consideration is motive and intent the supreme court has said time and again that the reason why a legislator undertakes a specific action is not to be considered in the legislative immunity now since it's the intrinsic nature of the act that matters not the reason why the legislature undertook so here the question for the court is were the legislators actions taken in the legitimate legislative sphere and to answer that question the question is what is the dispute in this case and this is a dispute over the sale of commonwealth own property and so the question becomes what does the legislature have to do with the sale come off the property and the answer is everything the general assembly an act of statute over a century ago saying that it appropriating power else and see you in your brief does a very good job of laying this and i know there's a limited amount of time it seems to me that on the senate resolution this is the question and the on the question of the letter and of just to reiterate the point on the resolution i think it's pretty clear power says mccormick it's very clear that legislative resolutions appearing in front of a committee consider a solution is squarely within legislative immunity on the letter and the meeting with d g s it's important to remember they met with these yes and yes secretary that is the officer in the cabinet officer who is charged with implementing ak forty eight dollars so the fact that they met with d g s is no accident because this was true judge greenberg and that actually sort of sort of introduces the qualified immunity now says that mister holtzmann's about speak to a but in answer your question we do have to accept the allegations as they are on the face of the pleading and we submit that even accepting all of his allegations is true because we have to it's a motion to dismiss that there is an absolute immunity either legislative immunity or qualified immunity or combination even assuming those allegations are true that absolutely protects the legislators hour is there anything else you want to tell us about the slate of immunity that we haven't touched on on not without keeping the court here for the rest of the afternoon i've lots of things i can sure about letters of immunity i would simply say that all the categories of activities there really are three pockets there is the resolution communications with the executive branch officials and communications with constituents and all of these activities are quintessential legislative in nature legislators have to represent their constituents they have to give voice to their constituents and the only way they can do that is if they can actually listen to their constituents speak with their constituents and then relay constituent concerns to others including other people in other branches of government so think in my mind anyway it's an easy call that everything that happened here subject same coin because if a court looks at this as a legislative legislative in nature so it's the legislature carrying out its power to decide whether real estate should be sold or not as a policy matter and as a legislative matter then it consolidated fuels and really piggyback with mister meyers just mentioned a moment ago to the extent that actions here and the legislators are not perceived to be allegations regarding activities covered by legislative immunity allegations about certain types of speech an advocacy that the legislators performed in their official capacities and because the st amendment to the us constitution protects the very forms of speech and advocacy at issue here and because hiring does not have a constitutional or statutory right to require the legislators not to engage in these constitutionally protected activities the legislators are and will have qualified immunity for having engaged in them as the court knows the doctrine of qualified immunity shields government officials from being sued in connection with their performance of discretionary functions as long as their performance of those functions does not violate who clearly established constitutional or statutory rights that a reasonable person would have known about it's very important to know that under this framework a plaintiff does not have a constitutional or a statutory right to require state legislators to refrain from engaging in forms of speech  advocacy that are protected by the st amendment and in fact along these lines this court has already recognized that in light of the st amendment a government official cannot be subjected to the types of claims that are asserting your st speaking with a government official or agency and encouraging that official or agency to make some decision on some basis regardless of whether the advocated basis is alleged to be inflammatory or proper in some way and so in particular i'm talking about and want to focus for a moment on this for its t decision in oakland versus watson which is founded two hundred and seventy one federal rd reporter page five hundred and sixty six this is a decision the court down in two thousand and one and there the plaintiffs allege that the u s attorney for the eastern district of pennsylvania a man named mister stiles had spoken with pennsylvania's attorney general mister fischer who was the plaintiff's employer and influenced mister fisher to take a variety of what they claim were adverse employment actions against them and the plaintiffs claimed that through that particular course of conduct mister stiles had violated their st amendment rights but this court concluded that it was in fact the st amendment itself that protected mister style his conversations with mister fischer and that as a result mister stiles wasn't titled the qualified immunity for having an gaged in those conversations and the court stated as follows quote we note in this regard that the alleged improper conduct itself took the most speech conversations with fisher where stiles nine i mean is your are is probably are where the legislators explain in some detail in their briefs that the xman decision is closely analogous to this case from a qualified immunity perspective and just to kind of summarize the point the nd circuit emphasized in xman that the st amendment protects the legislators right to state publicly her her criticism of the granting of a public contract to a given and it and urged the decision makers that you word of the contract shouldn't to result protected and about why the decision makers should not a word those contracts to it he called x men including their allegedly false and inflammatory statements about that company's religious orientation and practices in light of those you had the authority to decide who would receive the public contract to purchase the why do you see property which is the property at issue in this case therefore just like the just later statements in x men the st amendment protects the legislators stated concerns here about d g s his choice to award the contract ira even if those concerns were allegedly inflammatory or false simply the st amendment protects the legislator statements and hiring does not have a of the it's yes i don't believe there are any allegations in the can that connects the legislators in this matter with you next in about the ordinance the extent that there's some in the complaint that the legislators advocated for the enactment of the ordinance then yes i think the same analytical framework would apply because again the decision maker if you will the governmental entity that took a state action in your scenario there was an ngo township and not the legislators they were merely advocates of but again i don't i don't recall that there was any allegation that effect in the way ok thank you  hultman before we go to misjudge mister gordon a quick question for you since mister holton was just talking about qualified immunity i didn't see any where the defendant bernstein raised qualified immunity in the district court am i right or wrong about your honor i believe it was raised in  there were fact issues and dismissed these motions to dismiss without prejudice in june of two thousand a finding that in fact issues existed regarding whether the actions of the defendants and now palance warranted immunity defenses in finding so the district court stated that whether any of these individuals is entitled to immunity rests upon whether the individuals engaged in legitimate activities well in the course and scope of their position and authority and the district court then how that detail then well but allegations in the complaint allege that none of these individuals did so that's the discus the discussion was mired in fact the district court did not at any point in the minute an avenue for the i your honor if i understand your question correctly and feel free to correct me if i don't that there's not an absolute right to the immunity and particularly in these situation appeal from a motion to dismiss the only way that this court would have jurisdiction on appeal from the interlocutory order we'd be if there was an absolute immunity where the collateral order rule would kick in and we don't believe that the collateral can it's not it's not rare in cases involving immunity the collateral the collateral order doctrine is is quite frequent in cases involving claims  either qualified immunity or legislative immunity because it's immunity from suit it's not it's not just immunity from judgement it's immunity from suit so let me follow up on just greenberg's question about jurisdiction what are the dispute disputed issues of fact that justified the district court's denial with immunity because those are that's sort of the exception of the clowder order doctor  when we get a case involving immunity and there are important or material issues of fact in dispute then those need to be determined by the district court before comes up to the court of appeals consistent with judge green words question don't we just look at the facts of this complaint and assume that they're all true and then don't we have jurisdiction a new class or order doctrine or other some disputed issues of fact that you can question the clutter or order talking will not attack her issues on appeal the main issue on appeal is whether there is a genuine issue of material fact and there is a general issue of material facts on the circumstances which again the district court's order in this give me some give me some facts that are in dispute here th the what is it what is in the actions what the facts are and disappears whether the actions that were taken were for legitimate legislative purposes or not and in order to determine that we need to look at the specific facts and get determination on for example whether as argued today by my counsel on the other side whether the legislatures defendant rogel particularly mentioned that being involved in the sale at issue in that so you can't have it both ways you can say that their duties make make this a legislative issue and make it centrally formed form and involved with the legislative acts and that they're not responsible for it because it wasn't their job they can't have it both ways in addition speeches that are made outside of congress outside of the legislative context are not in of themselves automatically determined to be something that is  immunity the immunity does not cover political activities which can include a wide range such as newsletters news releases speeches outside congress that's us the brewster the supreme court opinion and the statements that were made particularly at these meet public meetings that that happened which were not called by any government official these are public meetings that occurred at a private location and they were the  defendant showed up and spoke at them but these were not specifically public meetings that were called by the legislators in their legislative capacity but statements that were made there that said i think it such as we need to look into any national security type issues which need arise because of the nature of the of the entity of hiero as being a muslim based institution that was planning to have the the facility for use for muslim youth specifically the allegations is that there was something illegal happening regarding hyra again that there might be any sort of national you know national security issue relating to higher with no foundation given for that there was absolutely go outside the scope of the necessary legislative activity and again under us hebrew service supreme court has said that that's not within the scope of think we've agreed to the x men cases not favorable to you and as you pointed out there it's not controlling on the circuit you're quite right about that so my question for you is tell us the name of a case or cases that are controlling on this court that have a fact pattern similar to your facts such that the defendants in this case case on which defendants rely one of the distinguishing factors is that the court simply found that there were no viable claims on the merits it was not deciding and that's not what we have here here the court did the district court did not reach that issue and decided that there were fact issues and that that is what needed to be looked at so i think the montgomery county case shows us within the rd circuit one of the things that used to be considered in looking at the immediately issued and i would also say that in the her case which is cited by my colleagues across the aisle as well the court found that there was an already existing legal determination and here the district court was very clear and made in two separate rulings both in the original one on june th and in a subsequent ruling that june th after there had been additional briefing on an unrelated issue regarding potential join or of a necessary of a different necessary party the standard issue on this appeal the district court made very clear that this is what was not in existing final legal determination there was no final legal determination made by the district court as sue whether any type of immunity applied simply the district court held that these were mired in facts and the district court found that additional factual discovery and factual response would be needed in order to determine whether that legal defense applied so is different then how this court held in oliver because in all of her there was an existing legal determination that's not what we have here we also do not have an issue that can this whole completely separate if we look under the co coopers and migrant standards and factors that there is no issue here which is completely separate from the merits and again the district court made it clear that that these fact issues turn out that the allegations within the complaint turn on factual determinations that do directly relate to the merits and finally this is not on review of all again the dismissal ordered by the district court the orders are on appeal here without prejudice in order to be able to reassert them at a later date and also could be reviewable at a later date so i don't believe that we can make any of that the opponents here can satisfy any of those requirements as you know in harlow of the fence the united states supreme court which obviously is binding of course on this court qualified immunity only applies if the conduct does not involve does not violate clearly established statutory or constitutional rights were a reasonable person would have known of them and here we have stated the statutory rights under both the federal statute religious land use and institutionalized persons act as well as the state equivalent the r f p a and then also the st amendment of the entity here of higher and its religious nature is protected under the establishment clause in what's already codified in remove as well as the state's religious freedom protection act and the st amendment were not soley on  amendment here incidentally which was not addressed by my colleagues on the other side but even with the st amendment there are clearly stated rights there are clearly stated issues here there it clearly stated recovery the action and i don't believe that the qualified immunity would apply and even in that circumstance because there is a clearly stated rate at most what should happen is additional discovery or any discovery discovery should be allowed to begin to determine whether the actions that were taken by these defendants whether they were in fact things that can be considered to be illegitimate activities taken in the course and scope of their positions and authority we also heard earlier illegitimate activity for them to become involved but also that they didn't that they were not involved in the sale and that they can't be held responsible because they didn't have anything to do with the sale is easy yes they can have it both ways that requires more factual investigation and raise qualified immunity specifically but i do think that we raised the cause of the heart of the qualified immunity defense is that there is not a clearly established you're right and so we do raise extensively in our motion to dismiss that all of the rights raised by hyra and its complaint are not clearly system so i would also note that i think the defense of qualified immunity can be raised at any time during the proceeding before a trial so to the extent representative bernstein steam to not of adequately raised in the motion to dismiss he could raise it again on a motion for judgment on the  for a motion for summary judgment in this court or the district court would have to address that and so to the extent it it we believe we did raise the same issues that are there in the qualified immunity but if we can that specifically say qualified immunity and that is deemed a waiver we believe this court could still address that because it would that issue is would then go back to the district court and the dish report would have to and and your your review is consistent with my study of it that you raise legislative immunity and nor pennington nor penticton dartrey but nor qualified immunity