th through the th my client was in houston he lives in austin but he was here in houston on business with a copy of the petition form and he's alleged that under oath that he was ready and willing to circulate at that  two cases that i think control the issue here make the charter and constitutional enforceable and their response initially was thank you for the heads up and we're going to look into it over that weekend that was on thursday between then and the next monday there were some communications but the city did not this is why this timeline is so important the city did not disclaim any enforcement or or admit that the story was unconstitutional and so at least several days later the following again unable to circulate so the lawsuit was filed june st and then what comes after that is not relevant to the issue of standing all of that turns to move this and we'll get into movements in a nd but was filed and once standing is established you can't be ousted of standing you don't have to establish standing twice and there's a little nuance with respect the stand you do have to start with standing for each provision challenge of course and for each form of relief you're seeking but at the filing of the suit standing for the case or controversy and as a whole you just have to stablish that you have a case or controversy against the provision that you're challenging is one provision of the issue here in the short and send the  fear of enforcement under the statute fear of consequences if you were circulating the petition at that time was an object to be reasonable so as to support it self censorship and it clearly was under established law  objectively reasonable at the time he self censored on june th in the th and then again you know in the suing period as a lawsuit was filed his he had his personal experience the two thousand and fourteen for the euro petition was  e most recent time prior to this time that a petition was circulated in houston subject to these this charter provision that were challenged and what did the city do at that time this is what you know labored in the brief to show that there was very aggressive enforcement actions taken by the city and old and so this wasn't just applied against another already all in self was interrogated for five hours and that deposition got those facts in the record and the specific questions in the record reflects that he was sitting was specifically trying to get out whether he had personally signed the new giraffes and whether he was the one who was personally you know considered to be circulating the petition and he he knew a lot that time that he was not allowed to do that and so he said he had not done it he was here to organize d the effort at that time because he's a professional circulator and he has experience with that so he helps volunteers who were registering voters a time he didn't himself sign that your ads but so it was it was very clear to him at that time from the city's own questioning in the deposition that they were very intent on forcing this and even though they've tried to minimize those facts later if you go back and look at the pages in the record we've cited  the brief in the reply we've gone into detail where the city was aggressively challenging those petitions pages and specifically on the basis saying that certain pages should be invalidated all the signatures on those pages because  circulator had not signed the petition as a registered voter so that's the very provision we're challenging in the city you know buckley now they're trying to say after the suit was filed now they're trying to say well we review but we recognize that we can't enforce that provision but when the suit was filed that was not their position in fact you know fifteen years after buckley but they came out in nineteen million ninety two thousand and fourteen is the time talking about when they put him in an interrogation and did and they went to court and state court trying to throw position pages including based on this specific provision so you know that that problem stations of you know this claiming intent to enforce came after the suit was filed so and aside from that you know when the city the st time the city did come back and try to disclaim enforcement it wasn't just a straight it wasn't just a straight promise to say look we recognize it's unconstitutional and we're we're to go to city council and pass an amendment to you know authorize nonresident circulators or something what they said was look just take just take the petition face and this is the record of twenty and twenty nine you have to remember my client came into this case as a volunteer the organizers of the petition had already put this petition together which has the charter require jouret on in the city's response to is the best time was to say look we look we read buckley now after  don't know who which know what notary is going to do you know is there a new updated petition form or is it just does it just have to be scratched through now well the position form that they that they claim they're not relying on but the one that's linked on the city website now i'm not sure it's wrecked we addressed the residency requirement is is what is the city now saying both of that knowledge and both of those are unlawful i think they've well i think they at least initially they don't know what their position today will be at least initially they tried to kind of hedge on that and they would admit that the bear of their residency requirement would be unconstitutional but the way that we argued i think the court was right to find that the way it's you have to be in the charter is language you have to be qualified voter to circulate and then a compass is both residency and you know registered voters status so there's no way to unwind that from the language in the charter is there been any discussion or attempt  have well the city has as pacifically disclaimed they've they've argued in their briefs that they shouldn't be held responsible for this thing being in the charger still  because it's so hard to have men you know you have to in order to minutes or you have to go to the voters and there has to be even if the council itself can put it on the ballot you have to have an election of the voters d used and they have to prove it and then it's like a texas constitutional amendment in that in that sense so they've they've sort of relied on that and said look it's too hard to him in the charter anyway so we shouldn't be although i will for the fact that it remains in the charter and of course that's not that's not the plaintiffs problem  either so they could amend it you know city councils never try to and in fact the last time this came up again every every day until this lawsuit was filed there was no indication that the city would hear two buckley which had been decided fifteen years so along with other circulators so this standing this standing is clear and again to finish one point on you know they're even when they did recognize the way to buckley and try to disclaim enforcement it wasn't just a straight you know they would never agree to any sort of stipulated order that says look this is done for small which would protect my clients both from the cities and for spin and from rd parties who might try to challenge the signatures in court which happens in texas  but they also said you are we also want you to sign this additional you know consent to jurisdiction form as a nonresident circulator which would require them to give up their rights at the time they wouldn't bar them to come within forty eight hours of requests by the city at their own expense regardless of where they were you know when a question on signatures supposedly comes if the city itself requests that they have to make themselves present and use it within forty eight hours and be ready to answer any questions argument but you know that's an important point to even you know so there are stand the facts is that was standing at the beginning of the case was filed but even if you accept their later prada stations it still doesn't solve the problem act of positioning itself regardless of whether you collect enough signatures involves core political speech as recognized in brooklyn and meyer and so the act of having those conversations and then the act the legal act of signatory signing your petition as a circulator is is also force of an activity that's protected completely apart from the ultimate success of any british and to get something on the ballot why isn't what they have on the website now even though it's it's not clear whether they're really embracing that relying on that but why is it why doesn't that show that they've whatever the history is they've now recognised the problem with the law and they've changed the for whether the facts are such that would support injunctive relief in addition to the declaration but the case for prospective relief including a declaration is not moot because the city hasn't met their burden that substitute procedure or that they disclaim here in this appealing way but even if you consider it's not sufficient because one it's not it's not an official act in the city the city to this day has never said the date that was approved by whom it was approved whether was approved by the city council and as as we've pointed out in all these cases on voluntary sation the city can routinely rejects this argument of voluntary sation where the offending provision remains repeal so if they really wanted to move the case they could try to put it on the ballot and repeal this provision but it remains in the charter and so they can't meet that burden to show that cases move even from perspective really and then even like the part that i heard indicated that he is not accurately representing the record nor the applicable law so i'd like to address that and focus on two aspects standing this case isn't governed by its time line and the timeline he is separated at no point ever in this litigation that the city ever given any indication that we would intent force intent to enforce the provisions that registered voter requirement for the circulators and that refers to a qualified voter and that also tangentially were st to a  residency requirement we didn't make an issue of it i think we dropped a footnote in our brief that said that although it's really not an issue in the case you know probably that's going to be the case that that goes to but we're not certain but  the provision of the charter also deals primarily with signatories and that for example was the focus of the litigation in two thousand and fourteen that mr poole was so concerned about the focus if you look at the evidence in the case and i encourage the court to look at our factual statement which puts this out in pretty good detail including mr poole's testimony the focus of the litigation was on the people who signed it there was no effort to charge any of the circulators and in fact it was kind of a mess as we indicate in our brief the advocates from sales pulled ringback twenty four thousand signatures off is put that as one of their exhibits in the record and it was on there but i would i would turn the court's attention to this and that is that there is not any evidence in this record that anything if your was rejected solely for the reasons  it's it's certainly not enough just that some laws on the books and has never been repealed because there's tons of that are now unconstitutional are in place but it does seem different when it's on the form itself so why wouldn't a reasonable person now you know maybe you can argue now you've changed on the website but at least when that form was in existence why one in a reasonable person think while it's still on the form i don't want to law i don't want to sign something and then why  appreciate that two things number one the form is in the charter it is not something that we promulgated based on the charter provision it is it is set forth in the charter number one number so you know when you change it how can you change it now without a chip change so that you are we have we have basically what we we've done with that provision basically what we do with all provisions that become unconstitutional we try to work around it as best we can and say here is what we will accept the nd thing though is in this case it doesn't really matter what another person what if thought because mr poole knew in two thousand and fourteen that those provisions could not be enforced constitutionally and that's that's i think a large part of the problem here is that you know the the idea that somehow he could be killed by something that we could never successfully enforce for example could only be charged with lying on the for i understand i understand that and that's why we simply said crossed out those provisions and obviously we're not going to require that anybody lie and if somebody wants to make misrepresentations on a form that's a separate problem but they can simply say no i'm not one and if they ask us before they file a lawsuit which mr pool did not we would tell them that that's that's what we would accept and we can accept signatures  now even though that's what they what the form that is specified in the charter says i think he was correct in the fact he was incorrect in his characterization of how it works we have to have a vote of citizens in order to get rid of a charter provision we can't just go in and change this amended by city council ordinance and i think part of the reason that we're still in this involved in this lawsuit is that mr pool has not comprehended that that this is not something we can just snap our fingers and fix and i appreciate the dilemma that it creates for the citizenry but the likelihood that it will be put on a ballot and that the citizenry will ever hear about it is is pretty low i'd like though to to get back to to the the issues in in the case because i think the law has kind of got lost today in in a lot of the facts and the law i think here is pretty clear one that you have to have for perspective relief he's talked about an injury that the hand based on what he thought in two thousand and fourteen what he thought before he ever talked to the city that was fine for his temporary injunctive relief but if he wants injunctive relief prospect of lay a permanent injunction and particularly if he wants for rd parties then he's got to do something else he's got to show that there is a threat an injury that is places in the record and in open our statements in open court where we have said we have no present intention to do that i am looking at a picture that's frozen in my frozen can you still hear me i can hear you ok thank you  and so cool doesn't really acknowledge the distinction tween you know our judicial admission and some ability to just snap your fingers and make us go away nd in the pokey that we've cited in our brief from the u s supreme court they say if you have that kind of disclaimer which we did then that moves the case that's the end of the case but i think also too and this is the problem that judge cost is talk is when you have a law that is unconstitutional the idea that we have got to have it declared unconstitutional is wrong let me give you a perfect example  and it will take it out of the context of this case where i think you can see better we currently have an appeals court can take usual notice of the pigeon appeal where a we have a charter amendment that says we can't give same sex benefits to  city employees that's been been not been enforced since twenty thousand one hundred and thirty one of the people in our one of the citizens of euston wants to enforce that and we are saying no we can't because it was declared unconstitutional in windsor no merfeld if you take the position of the appellant's in this case they would require before we could could ever provide same sex benefits for there to be a declaration that that was unconstitutional rather than what we did is simply buys the mayor that that was the case and he could go around the country to all of the doma laws to all of the cities that have individual doma laws and say well you have the option to inforce this if you want until it's declared unconstitutional i'm going to get fees and all of these cities to do so that's madness so what the city does which all cities pretty much do is they mock those they monitor the case  our judicial admission that we are not enforcing this mr poe i mean mr poole knew since two thousand and fourteen that the provision was unconstitutional and couldn't be successfully forced and therefore there is no way that he could have a reasonable belief that he would be put in jail or prosecuted for that because subjective chill isn't sufficient and the layer of cases said that  but it also says that you need some sort of concrete statements in order for it not to be a subject to kill you need some sort of concrete statement from the court i mean excuse me from the city are that that they are going to enforce  can't just have some belief based on what you thought happened many years ago and i think again i would refer the court to the evidence that we put in our our brief that shows that he had a very tangential involvement in that case and so he i don't think really knew what the focus of that litigation was but the rd thing that i think is problematic is that mirror having something simply remaining in the charter is just the mere existence without a real threat of enforcement is want and so the problem that they have is there has never been a credible threat of future enforcement which they need or i'd like to turn briefly to redress ability and could no longer demonstrate that they are suffered any concrete injury and so they had to show then some injury in fact in the future and redress ability and i talked about injury in fact a good bit that you brought up to the district court's just ruling it seems to me that would have also prevented even the t r o even the relief that was given if you're right that this is just an unconstitutional law that's been on the books but there's no there's no real threat of an force them why was then they're standing for any relief and this is i think i think the court frankly was was trying to be be generous because it was a very short duration and nd i think that the court was doing probably the appropriate thing if she found a regular chip are legitimate chill then that based on past conduct then that would get you into temporary relief it would not get you to prospect it really so she might have been correct i don't think she was but she might have been correct where the temporary relief but not for the prospect of relief and in fact she said that you know i found it for this temporary restraining order but i don't yet find it for the prospect of relief and i think that was probably a pretty a pretty conservative thing to do when she understood that under white law you have to do it for you have to have standing for each seems to me it's still perspective as opposed to say damages which are a retrospective yeah i'm not i'm not i don't know that i necessarily agree with that i think what she was saying in that is that i and  she said it in her order that i found a past a past injury and therefore i am going to hold this for for this particular period of time until july the night and i'm done and i let me just say here i have a blank screen in front of me and so i don't know what my time is so if someone on the commission that i missed that that's fine thank you i'd like to on the nominal damages you know normal damages claims they talk about surviving mcness only a few that are otherwise viable in this case they really work even if you assume the injury that we talked about the expressly negated that element of standing that their nominal damages claim they swear that the speech that their speech was chilled by the continued presence in their they have sworn that so long as the provisions are not in joint and declared unconstitutional their speech will remain chill and as a consequence they have basically negated that element standing and so their claim for nominal damages can't stand even if you kind of give them a little bit that th ey didn't completely negate it it's still an incidental claim to their their main klein which is the claim for the claim for prospective relief that's what they want and i think you can even nestor in the at the end you know if if he would be happy with the dollar but nothing else i think you probably would because we have another yes another case of this circuit or his feet but even on that score i think it's inappropriate  for a plaintiff basically to come in and pick a low hanging fruit something that's already counsel unconstitutional that's not enforced and saying look you know we're going to you know i want to declared publicized it as well as we can we can't get rid of the provision with that's up to the voters it used and it's kind of ironic that that mr poole who collect signatures does away with the registered voter provision of the of the charter provision we assume that the residency requirement is also went with it because of the kind of it does not but again we have the ability when we i mean what the city does is we don't enforce things when we feel like they've become unconstitutional and so we always try to err on the side of the provisions and they aren't in force because the city has a limited amount of money and there's no percentage in filing something and in trying to enforce something that is not enforceable that's going to result in a  yes any suggestions on for miss patty we lost her yeah effect of what you know this whole argument about the zombie laws the fact that the supreme court decides an issue you know for example strikes down the campaign finance restrictions and in buckley in  six that doesn't mean that plaintiffs don't get to challenge and get declarations of unconstitutionality of all the provisions in campaign finance laws that violate the principles in the reasoning of buckley that are litigated later catholic leadership was a plains council kathleen a ship decided by this court a few years ago you know we sued texas the laws that they struck down they found were were invalid under president from the supreme court from twenty and thirty years ago that doesn't mean that it's not just that's a separate don't you need to show some thread of enforcement beyond just that the laws are on the books because otherwise and it's a tragic thing that a lot of states still have a number of you know century plus old segregationist laws frankly just revisionist history and i've cited those pages those are all on the record we took their litigation documents their motion for summary judgment and their plea to the jurisdiction and if i could only summarize certain parts of it here but if you look at taken the parts that show exactly what i'm saying but they go on for pages alleging these these circulators engaged in what they call the election fraud which is a which is a crime and and then they did try to get all these pages thrown out they didn't try to get th signatures thrown out specifically because the circulator did not sign the petition has a voter and that's the big we're challenging that was in twenty of the last time that occur well that was the last time they had an opportunity to enforce it which was and fourteen and even though so no this is why i'm saying you have to focus with respect to standing you have to focus on the timeline very closely because there are there representations after suit was filed and after my play it was already in children speech don't can't go back and rectify that injury that injuries already actualized you don't even have to have injury actualized under the st amendment pre enforcement challenge is my clients so censor twice before the suit was filed and so that's actually actualized injury that can never be rectified but what miss betty is talking about now is saying she drives them to zoom represent that the city she said they were rove the code book in light of recent decisions and they put something on the website to say to disclaim their intent to enforce it that came weeks and weeks after this suit was filed that and this is what i'm saying if you go in their briefs they never say the date that that was put on there but the st time they raised it was in response to our will fifty nine motion after the case was already dismissed on the pleadings that's when they put that new affidavit on the website after the case was already dismissed so far after plaintiff you know claims the speech was chill burden and they they haven't met it because the statute is so this is different from the standing in green this is really critical point which they try to ignore all throughout the case this is the only way they can state standard you have to show that it's you know virtually certain that this cannot recur in under justice versus hos been which was a mississippi case as well from a few years ago if you read that case to ninety one to ninety four they cannot establish that that standard in that case the court found that it's a good it's almost exactly like the situation here it's chilled speech claim the election edition passed that generated a lawsuit and the court found in that opinion that just because the plaintiffs had alleged you know general intent to engage in future petition activities in the future they didn't have a specific petition identify them anything like that it's exactly like here are plaintiffs and said you know we've got a history of petitioning activity and we want to do future because it's never our time is expired