please the court the district court here ruled that a public official could be held personally liable for monetary damages for simply indicating that he intended to enforce a presumptively constitutional statute the district court holding is wrong for three reasons and must be reversed first the secretary of state never actually enforce the challenge statute here so there is no affirmative act on which to base liability second what the secretary dead to was objective lee reasonable and is entitled to qualified immunity and finally if the district court's ruling is permitted to stand the policy implications would have far reach beyond the scope of this case for all executive officials in the circuit with respect to the first point the secretary never actually enforced the statute so there is no act that could be the basis for you know the  secretary's office what its enforcement position would be as a courtesy to plaintiff's the secretary's office sent a letter back indicating that the secretary's office believed it was required to implement the law and would do so like any other ohio election law and leave the question of the constitutionality to the courts plaintiffs acknowledged throughout their briefing that this is that most a threatened and force meant or a signaling of intent to use their words that might be a basis for having standing to bring a challenge against the statute as plaintiffs ultimately did here but it's not a basis for a personal liability action you would say your letter was encouraging them to file a lawsuit they want to avoid the expenses it was not encouraging them to file a lawsuit but certainly at that point in time that was their only choice that they didn't want to incur the expenses right section a t r o to allow them to hire people to do the petition  action that was absolutely an option available to them your honor section one thousand nine hundred three offers a pre enforcement statutory official capacity suit to challenge and enjoying a statute for the express purpose of preventing any constitutional violation from occurring plaintiffs here chose to wait approximately ninety days before bringing suit but they could have done so on day one and gotten relief before they had any expenditures or there was any actual violation of rights there is no need to put a secretary of state or any other executive official in a position of having to choose between facing potential personal liability for simply doing his job or potentially a mandamus or other action seeking to compel him to do his job because here at the plaintiffs have the control of bringing a pre enforcement challenge and preventing any violation from taking place and that actually underscores why this case is fundamentally incompatible with the notion of personal damages personal damages are by definition backwards looking and designed to apply where a public official has already taken and force an action and in a way that is so egregious that it can be deemed incompetent it is not meant to apply whereas here the secretary has not yet enforce the statute throughout  brief they made clear that their real issue is with the existence of the statute to the extent that they allege any damages those damages stem from the statute itself it would be unfair and contrary to the purpose of a personal capacity suit to hold the secretary individually liable for the existence of a statute he had no role in passing and has not even taken any independent action to enforce you you seem to suggest i'm just curious your view a statute and understand that it is in fact unconstitutional a public official is obliged to enforce law why or why wouldn't you say just in general that independently elected officials of which  one you know they have their oath as well as the legislature has its courts of its executive branch officials have theirs and i mean i take it that's what jennifer brunner was doing last time we want can you say hey i'm market official i have this on oath and i look at it i look at this and i say i'm on a forcing it not because it's grossly or flagrantly necessarily but i just have my independent duty and i think it's constitutional month forcing it couldn't have done that he could not have done that here state law makes clear that the secretary of state is obliged to enforce ohio's election laws in fact a case that that like you talking about that seventy six case i mean that's like it's really technical case about handing over of the the mandate from the legislature when there was change an election is a very different setting from this one as a statutory matter section thirty five confers on the secretary the authority to enforce ohio's election laws that's what he is elected to do and the ohio supreme court has repeatedly made clear that that of already does not include the authority to engage in any kind of analysis of the constitutionality of statutes that's not part of his authority and the supreme court reiterate that in a different context as recently as this summer but i'm just saying that the secretary can do that if a statute is flagrantly unconstitutional then he is making some sort of a determination about  constitutionality is in the he or she and there are ultimately at the very rare end of the spectrum the courts have acknowledged that there can be exceptions where again a statute is so obviously unconstitutional that no reasonable person or reasonable official would believe that it was constitutional that's not the case that we have here and with first i mean another way of thinking about you just cause question obviously would makes that your answer be the right one and part is the supremacy clause who cares what state law says if a state officials violating the federal constitution they're stuck they can't lean on the state constitution to get out from under their obligations to follow the federal constitution so all the state law stuff is just irrelevant i mean it's just as if the state law says oh we presume all statutes are constitutional great they're presumed constitutional but doesn't there fear with obligations to uphold federal law and the question is when is a statute unconstitutional when can it be said that the statute is in fact a violation of federal law and who should make that determination as the secretary correctly noted in the letter he sent to plaintiff's counsel the courts are best equipped to engage in the enter key balancing necessary to determine whether a statute is in fact it was it that the general assembly is presumed to engage in a balancing when passing a law and the executive officials like the secretary of state are obligated to enforce that statute and it bears emphasizing that again this does not mean that a plaintiff does not have a remedy where they believe that a statute is unconstitutional or that their rights are in danger of being in friendship on in this case we're simply talking about a personal capacity suit and whether the secretary can be held personally liable this does not prevent in any way an official capacity suit that could prevent or remedy a violation of the constitution if a statute is i reincorporated in the revised statute this court addressed a prior version of the statute that was different and material respects and determined that it was unconstitutional the statute that is at issue and this case represents the general assembly's second attempt to achieve the various interests behind the behind the statute and it's a i'm sorry and so really you're what you're saying is this was that's exactly right your honor you said it far better than i did that it was a newly enacted statute that represented the general assembly's attempt to cure the constitutional defects that this court had identified with respect to the prior stature statute and the need or case and contrary to plaintiff's claim in their briefing these were not minor trivial changes the general assembly significantly narrowed the scope of the statute and whether or not those changes in the statute are sufficient to make the statute constitutionality is a different question what kind of a mean spirited question here so just to warn you your position is the sec or doesn't have discretion over enforcing the statute under state law unless it's grossly and flagrantly constitutional that's correct and yet after this lawsuit he's decided not to enforce it so under state law that proves an admission he thinks it's grossly employed women constitutional your honor that the secretary of state has not decided not to enforce the statute at issue that whoa whoa whoa he's not defending it there's an injunction is not offending  how you just said if you can only do this when it's grossly infrequently unconstitutional with respect there are two separate questions at issue the secretary of state is obligated to enforce the statute unless there has been a court  order indicating otherwise and that is the case here the district court dead preliminarily enjoined and ultimately convert that to a permanent injunction so the secretary no longer can enforce that statute under the court's order and others the case  appeal of the same case and the same case is being appealed that's correct going overboard the constitutionality question presumably because it's flagrantly and grossly unconstitutional for purposes of this appeal the only issue is the qualified immunity determination because that's the only issue that could be immediately appealed the case has not reached a final disposition so there still could potentially ultimately be an appeal or an injunction there is an injunction in place junctions are people but that the issue here is simply whether or not the district court was correct in denying summary judgment to the secretary of state to defend the constitutionality of the statute i did not think that was the state's position  and i think there's a procedural point to clarify here the secretary of state has a challenge throughout the personal liability claims that plaintive so set forth in their complaint if the court is asking sort of the separate question of whether or not the secretary defended the constitutionality and court it is true that a a separate party the the a g s office actually separately intervened to address the merits of the statute point making i believe what i what i'm trying to say and i apologize and i'm not clear they absolutely could still defend it it's it's our understanding at this stage of the if the in force or defend as long as the injunction is in place the secretary cannot enforce but yes if also mentally the the court injunction were overturned then certainly the secretary would enforce that law like any other election law in the state of ohio separately the question of whether or not it would be defended is a question that would be determined upon the final conclusion of the district court proceedings for this appeal the only issue is whether or not the secretary of state can be held personally liable and with respect to that it's important to note that even if the district court was correct that the statute is unconstitutional that's not enough to hold the secretary personally liable qualified immunity protects all but the plainly and competent to ensure that executive officials have breathing room to make their decisions and even if this court believes that this statute is unconstitutional there is this is not a case where the secretary's belief that he was required to enforce state law consistent with his statutory duties can be deemed plainly and competent as of one minor question about the record really pretty technical question you know you argued today that the secretary took no action to enforce the statute but it's not clear to me that that argument was made in the district court it looks as though the district judge did not address  my correct about that i believe it is a nuance with and what was argued in the district court at the district court the secretary did in fact make the argument that there had been no action that would be a basis for personal liability that is something that we have expanded upon in this brief that it would be included with and the arguments that were made below in challenging that the place of what quite a nuance a fine point because one could certainly interpret his position in the district  as having taken some action toward enforcing the law and with this argument not having been made to the district court one could see how perhaps the district court did not address the district court spent the bulk of his decision focusing on the similarities between the two statutes which is the question that ultimately relates to whether or not the new statute is constitutional and might have this court's prior holding whether or not the secretary can be helped personally liable for believing that he was obligated to enforce the statute is a separate question and requires a focus on what the secretary himself dead and so that includes the totality of the can without consequence or accountability to the victims ignore the constitution ignore federal court decisions ignore section one thousand nine hundred three s plain language and even ignore past directives by previous office holders of that same position and instead with careful deliberation with plenty of time and lots of resources violate all iowans clearly recognized constitutional rights all in willfully blind reliance on the state legislature the supreme court ever said that you can be exposed to personal money damages no qualified immunity in a setting where a statute is being enforced you know whether federal or state so where's the case where it happened where they deny qualified immunity even though it's presumptively constitutional statute hadn't yet been invalidated the answer is i can't say with certainty whether that exact case is reached the supreme court what i can say is that that two plus two equals four in the supreme court has clearly said that executive officials can be liable for enforcing statutes section one thousand eighty three itself says that under color of a statute expressly uses the word statutes of congress has said that executive fishel is can be liable when enforcing statutes as well as a as a policy outcome and then we have lots of circuit decisions that fill in the other half of the equation worth of course are are liable for  forcing statutes of one kind or another yes your honor just seems to give some credence to their argument that this is not an everyday thing for federal courts to do search certainly or are this is not this is not an every day case and we don't we're not argu that's an every day home run of the mill case it's an important case with a number of important questions and the district court did rule in our favor and we think they were reasonable in doing so because it's executive visuals can't enforce this body of federal court's precedent either in the abstract or here that's why the district court was correct and that's why the proper course of action is to remand for a damages hearing because after all most of the state's arguments are really factual questions about causation the amount of damages the duty to mitigate all these arguments are factual issues that the court never reached in responding to their two page motion for summary judgment on qualified immunity which had no evidence or affidavi whatsoever attached to it grossly and flagrantly unconstitutional standard applies your honor i would take the edge off that a little bit and i would say two things one certainly this court's precedent is not using that language all the time and then secondly even if it does apply we still prevail in this case so so first and looking at the bible believers on bond just recently here were both sides can see that fair notice is really the touchstone of qualified immunity the beyond debate standard is the constitution last that was beyond debate this court said in cincinnati the kennedy generalized statements of law i believe that was about to leave a statute right right right absolutely generalized statements of  can also inform the qualified immunity analysis and that specific intent is not required so i would take the edge off that standard and clearly prevail and that's the in brief if you want to move to the grossly and flagrant standard we still prevail because of this court's decision and nader alone but also it's incorporation of ugh her decision is that stand for the same principle so that the sixth circuit was very clear in nadir it incorporated the law for miers be granted said initiative petition speech is core political speech first of all so it's it's the strongest protections apply second to wall it quoted buckley for the principle from the supreme court that initiative petition speech is co equal in terms of the protection required to candidate protection candidate and petition speech so we know those two are co equal just from looking at nader alone not to mention those two supreme court precedents and what the sixth circuit then says is that the residency requirements violate the constitution residency requirements for initiative petitions are unconstitutional and that's what we're arguing in its native right correct your honor now that you could argue might be different from presidential elections well very local ones not a couple of responses three responses so that your honor first of all the united states supreme court at least has said that and the sixth circuit incorporated that those two are different harm is the same it's a reduction in the overall quantum of speech available which is a severe burden triggers strict scrutiny it's a content based restriction of course we have circuit courts all over the country that looked at issues looking at the residency  requirements for initiative petition circulators and they've used buckley and they've used miers and they use this court's near decision to basically say the same thing that for an issue the petitions these requirements are also on constitutional and they've also said so for local candidates as well so if you have a local congressional the seventh circuit in district residency requirement and the invalidated that for the same reasons that people from out of state could help gather signatures to put this candidate on the ballot so it's a distinction without a difference think about it this way your honor if the ohio general assembly were to promulgate a law this is an american cannot vote obviously unlikely but take this scenario grossly inflated yes yes it is gross  and this is similarly gross for the reason that we've never probably as far as i'm aware we've never had a case where the united states supreme court has said well asian americans obviously have the right to vote those players may have been of a different race but obviously that principle carries over irrespective of the race of the plaintiffs in the other case the principle applies much the same here and to treat the initiative petition should because the principle in your hypothetical is a strict scrutiny principle and here here when it comes to this you look at the cases in this area it's interest balancing and it's pretty hard to figure out exactly what's going to happen next with the next challenge well your honor all the circuits all the circuit so so that strict scrutiny applies and with strict scrutiny applies and particularly when it's circuit applied strict and just so satisfied well the eighth circuit does so there was no evidence so they they had no no way of ruling in the in the plan as favor and then every other circuit has gone the other way since then including courts within the eighth circuit the district court in its circuit in nebraska disagree with the eighth circuit and kind of recognize that was the old old law dead letter so so the point the point my analogy though is that it's saying that initiative petition circulation and can a petition circulation are constitutionally distinct or different would be like saying the voting rights of asian americans and african americans are constitutionally distinct and different for the purposes of equal protection law which is you know obviously grossly and flagrantly unconstitutional to make that distinction elsewhere is the same here and by the way these laws are presumptively invalid the attack the content of speech and they attack the speaker based on their identity and those laws have been held by the supreme court over and invalidity and a presumption of invalidity argument by the state may have been forfeited below but just a curiosity once you got the letter from sector houston why not seek the why not at that point you know avoid matter if they so matter if they still want to appeal the the substantive claim but that means that all facts are construed in our our favor as to causation and the issue of whether we properly mitigate or damages would be relevant to the damages issue arc it's a liability argument there's no constitutional violation because you know it was ultimately enjoying before the if you know it was in joint in time to avoid costs except for the fact foresman you incurred those based on the secretary of state sent the letter before the signatures were due only sixteen days one principle that citizens united stands for that most all can agree on is the notion that you do not need a campaign finance attorney in order to engage in the political process so we're talking about a volunteer campaign effort up front and center for pension reform that was even aware of this law and so they contacted me i wrote the letter to the secretary he wrote back and so what the what the a g is basically arguing from kind of an ivory tower perspective is that every grassroots activist group should have a constitutional rights lawyer on speed dial ready to file a t r o the very next day before their signatures are due and that just that wasn't physically possible here it's not possible most and they don't have a lobbyist at the state house to let them know a law that hurts their interests are being passed not every citizen is required to have a lobbyist and a constitutional rights lawyer to participate in the political process and it takes time to prepare these cases we prepared it right and we prevailed in the case and the idea that i get this letter which frankly i was shocked to receive secretary of state bruner had issued a directive declaring this very law and forcible because it was constitutionally suspect and we thought the secretary of state would simply continue that policy and by the way if he had there is a remedy available if he if you get erred on the side of constitutional rights and on the side of this court's precedent and the ohio and could bring in state roleplay mandamus claim in the ohio supreme court to force him to enforce the law in fact they can bring it in any court but no one ever brought that claim against jennifer bruner in the four years that she's been in the enforcement of this law and probably no one would have brought that here so the machinery answer is we were very surprised when the secretary of state basically promised that he would invalidate those signatures if we were to submit them from out of state residents and sixteen days just no challenge to a state statute but if you'd gotten a letter back saying we're knocking on full force the voting rights law against asian americans you would have pretty quickly well your honor i can't speak to that but i know that sixteen days is a very short playing field and and no there's not any case that i could file sixteen dale's days from now if you called me today and told me that that i had to file it that's just not true but i'd also say while we're talking about those letters the secretary of state had all kinds of information available to him twenty one million dollar annual budget a team of lawyers so a larger budget probably than in this court any of the court's judges have more lawyers on staff than any of the courts have judges have most likely and plenty of time he had a week to think about it so there was lots of time to deliberate and decide what the secretary of state was going to do going forward and that also makes this not like any of the police cases where there's imminent danger and a quick split second decision is required on the spot what we have here is really the opposite of that and so importantly what i heard the second point from opposing counsel was the secretary of state acted objective lee reasonably well i read sixty pages of briefs now as for fifteen minutes of arguments i have never heard one single argument for the constitutionality of this residency restriction i've never heard the sec the secretary of state once or the attorney general's office argued once  acted objectively reason lee because there's a reasonable distinction between these laws that has never been argued in any of these briefings and to this point and so it might be one thing if the secretary had deliberated for a week and come up with a novel legal theory or some novel evidence and then maybe attach that as an affidavit to his motion for some judgment are made that argument in the lower court that didn't happen here i've heard no argument to this point on why this wall is objective why it's objectively reasonable to believe that this law is constitutional when in fact circuit after circuit and the supreme court by inference is pretty clearly said that petition residency requirements on petition circulation are clearly unconstitutional so when you look at all of those factors and also the fact that section one hundred three applies directly to statutes in the air force under statutes what you see really is that the the remedy is sought by the attorney generals here lies with congress and section one thousand and three or with the supreme court and not with this court this this was clearly established and that really begins and ends the analysis and again the motion for summary judgment they made was just two pages and except there are these causation issues are these factual issues while the ages offices forfeited the right to argue over those things those are issues for damages hearing is what we're asking is that the court remand the case for that damages hearing where we can get this case wrapped up thank to follow up on the last point that plaintiff's counsel made with respect to whether or not there are factual issues there are no factual disputes giving plaintiff's complaint and the allegations the most generous reading the only allegation they make with respect to the secretary is that he issued the letter i respectfully disagree that there is any forfeiting of the argument that the secretary has not acted in a way that could be a basis for monetary damages that is part of the totality of the circumstances that would relate to whether or not qualified immunity is appropriate in this case but it's important to note that qualified immunity here does not turn on whether or not the secretary alternately enforced even if the secretary's conduct could be deemed enforcement he would still be entitled to qualified immunity as this court noted there is no supreme court case or any other case that has held a public official liable for enforcing a presumptively constitutional statute that he or she is charged with enforcing the closest fact pattern that we see among the courts is the fact pattern in the second circuit crotty decision in that case as in this case the court considered whether a public officials enforcement of a new law that closely resembled a prior law that had been deemed unconstitutional was a basis for holding the official personally liable the court concluded that the new statute was unconstitutional for the same reasons that the prior one was unconstitutional but it nonetheless refused to hold the official personally liable and in doing so the court persuasively explained the problems that would  se if an executive official were required to engage in the type of balancing that courts engage in in determining whether a statute is unconstitutional plaintiff's counsel made the point himself if the secretary had done here what plaintiff's counsel urged him to do he likely would have faced a mandamus action mandamus actions are common and an executive official shouldn't have to make that choice between two as the court put it equally hazardous and potentially tejas options moreover it could have some serious policy implications for the general assembly in essence an executive official would not only be licensed but compelled on pain of personal damages to essentially veto a law that the general assembly had passed and unlike the veto power that is actually set forth in the constitution the general assembly would have no basis to override that executive veto by the executive official charged with enforcing the statute i want to follow ups briefly on the point with respect to prior secretary bruner zx directive plaintiff counsel suggested that this directive and validated that the current law are somehow related to the current law that directive predated this law by several years the new law that's at issue in this case was passed in two thousand and thirteen that directive came out following the nader decision and related to the law that was in place based on at that time and found that based on the nader decision the prior law could not be enforced jennifer brunner did not issue any directive with respect to the current law she was not in office at that time so there is no suggestion or should be no suggestion that prior secretaries his state somehow had the discretion to declare the current law or did declare the current law unconstitutional oh well it will be to wrap up because you think your honor ultimately qualified immunity exists to penalize an official when they have acted so wrongly that they can be called incompetent here the secretary of state did exactly what an executive official and his shoes should do he enforced or indicated he would enforce the law the general assembly passed and he left the constitutionality of that to the courts he is entitled to