are long time friends of mine so they come out even does anyone have any objection to my hearing this case choose between violating their oath of office or being sued by p g and e and their fellow commissioners what a sword of damocles every time they voted all of their assets were at risk when she w that's already occurred and that torment is injury for which they have a right to recover damages but if you dismiss this case and the bankruptcy settlement becomes final that recovery will be made enormously more difficult painful hypothetical but it's a hypothetical is it not i i mean no action has been filed at this point against him not your eye but that sort of damocles from the p c s lawyers still hangs over their head there are all sorts of horrible things that could happen but doesn't our precedent in federal court say we're not allowed to speculate as to what might happen in the future we have to look at where the situation lives to day in resolving a question as to whether there is an extent claim or controversy now pending before us it's not a i think a question your i mean by entering into a settlement agreement that constrain the exercise of those those rights and i am constrained if you think i don't quite follow it constrains them by committing them in paragraph twenty one of the settlement never to contest the validity of that settlement and as it did in other provisions like paragraph i think twenty three that they would support that settlement in all four legislative citizens it didn't prevent them from resigning but that would not have been carrying out their duties and they felt duty bound to continue in office for public official have a first amendment  go somewhere else is that a violation of their first amendment right i don't think that per se violates their first amendment rights but here we had some much more direct much more stringent constraint constraints that were in force commissioners must be x you must maintain that official position that the commission agreed to that in the agreement it's not a first amendment violation as long as those commission if they are free to resign and go publicly attack the commission the certainly free to resign and they're free to do was frankly in this lynch did which was to take the position that she thought the what was the right one even though it didn't agree with with governor davis as  well that's for sure but that's a very different thing is whether you can do that while you're holding office and you can as a commissioner disagree with the governor that's not there's no question but whether whether the commission can enter has to have an explicit authorization from a legislature that actually says in affirmative terms that they can submit to a claim in federal court and that authorization was not given here but they went further and waived the governmental the individual official immunity but that claim has never been tested mr lynch that there has been no lawsuit filed by which an individual commissioner let's say ms lynch raised then had to raise the eleventh amendment immunity defense we don't know whether a court would uphold it or not well i think i think this this court cases make it clear that as long as the claim exists it doesn't have to be pending a but we don't know the answer to the validity of the waiver is my question doing well that's that's certainly a question that we hope this kind of court will answer in the course defies three opinion from us and i don't think it's an organizer it would or would not be a valid waiver i'm is whether that that was a valid waiver and whether the p c as an agency was properly before the bankruptcy court but that was where or where you're losing me in the train of your argument is i can understand the hypothetical question but because nobody has sought damages and the defense of sovereign immunity has yet to be raised to prevent such a claim from going forward we don't know whether the waivers valid today if she were still a commissioner for entering into the settlement agreement if she voted in favor of it one of the defenses that the state would raise this soon as the lawsuit was filed would be an eleventh amendment claim would  not and then the question would be whether or not the provision in bankruptcy courts reorganization plan was forcible or well if you're talking about this lynch being sued if i understand the question correctly i'm i'm not sure i understand the hypothetical well enough to understand who would be suing her if you're talking about a member of the public suing her for me to get us off on a tangent let me ask you a more fundamental question and that is if i understand your theory of first amendment violations correctly you are saying that she is potentially liable to lawsuit by p genie or some other party seeking to enforce the provisions that she wasn't supposed to object to the agreement but didn't she actually do that not only did she object to the agreement she voted against it as the commissioner she hired you to appear before judge mine tali to interpose objections to the entry of the agreement how were her first amendment rights violated doesn't doesn't your theory depend on the fact that she actually carried out her first amendment rights and that's what renders her potentially susceptible to liability from this claim yet to be filed in a lawsuit not yet docket i think the constraints on first amendment rights that are most significant here to the question of movements are the ones that ask whether and we think the answer is that she does have an affirmative claim to assert under section one hundred eighty three against her former fellow commissioners we think she plainly has that white and those first amendment rights were violated by the strictures of the settlement for their wrong i think that's correct to an extent your honor but every public official who acts in a way that gives rise to section one hundred eighty three liability even if it's personal liability that this recognized under capacity that's correct but this agreement only treats them i think capacity it does but it exposes them to personal liability is for damages and for contempt if they don't comply with the the members of the commission control right well but but to implement that some agreement you had to have a number of actions done ms wench had various cases are right making cases investigations that she supervised involving p g and e i don't but the fact is that that because the eleventh amendment and the unity waiver was invalid it was indeed the five commissioners who were before the bankruptcy court and that's why you had that there's any chance that mediation might resolve the overall dispute i would only be speculating your honor i think that the lines are are pretty harshly drawn i i make it a policy never to say no to mediation because i've oftentimes been surprised it would be hard for me to to g answer those questions again and we're happy to reaffirm those answers that is we read the agreement just the way the court i believe reads it that is to say the party to the agreement is the commission as an entity the individual can commissioners as observed our parties only in so far as they act on behalf of the commission in their official capacities and p g and e has no intention of taking any action against individual commissioners who no longer have official capacities for any alleged breach of the settlement agreement now counsel started out talking about in very dramatic terms about the year two thousand and four and the torment that these appellants purportedly went through and there are really two answers to that number one is we're not in two thousand and four now the genie emerged from bankruptcy in two thousand and for in may of that year april or may we are now almost two years down the road these commissioners terms expired at the end of two thousand and four and they no longer have any official duties or any capacity to act on behalf of the commission and so the threshold question before the court is is there any remaining like case or controversy in an appeal which poses the sole issue whether at the time they were commissioners they had standing to appeal from a decision that the full commission had approved where they had dissented from the commission vote that issue has now become moot became moot at the end of two thousand and four when their terms expired the other answer to it of course just as a factual matter as judge tallman observed is whatever torment they may have suffered in your two thousand and four it wasn't enough to cause them to change their votes by ms lynch's declaration which is in the record she voted on at least one occasion and perhaps two against the full commission decisions that she were compelled evidently were compelled by the settlement agreement and where she believed evidently that her vote was somehow inconsistent with the settlement agreement she nonetheless did it so what that claim is that on a certain hypothetical claim is unclear to me but whatever it is it's certainly in the past the on th issue these are really very basic elementary principles and i don't need to remind the court to great length of them but in the in the arizona versus official english case and in this court's on bond moot when they become moot after a lower court decision and while an appeal is pending and indeed in gator dot com i believe it was even after oral argument before the on bong court  perhaps the easiest way to deal with some of these fantastical speculations is to deal with them a little more concretely the reply gree talks extensively about the x party young doctrine and about how some how these appellants are open to personal liability i think counsel said all of their assets are at risk because of the waiver of immunity that's contained in the settlement agreement ex party young of course supports our position and shows that that argument really makes no sense x party young provides an exception to eleventh amendment immunity which allows individual state officers to be named in their official capacities for prospect of relief only so in two respects this imaginary fear of a claim for damages makes no members of the commission were injured during the course of the term by the fact that the commission entered into an unlawful agreement cause them injury there is calling this case moot affect their right to bring that claim i think but were they barred from challenging the validity of the agreement in that suit because judge reinhart i think the answer to the question is this court's dismissal of an appeal as a moot would not affect their ability to assert whatever claims they may think they have that arise out of past events and indeed there's no necessary connection between the issues that are raised here really there's only one issue it's a standing issue and the standing issue ironically itself became moot while the appeal was pending well that's not the underlying  unrelated to the validity of the settlement agreement on a plan that was confirmed by the bankruptcy court whatever those claims me be those those claims could be asserted to the extent there are attempts now belatedly two years down the road to challenge the validity of the settlement agreement the short answer is these commissioners did not have standing to appeal all their parties did by the way judge reinhart appeal from the confirmation order who did standing there was an appeal in this court and there were appeals in the state court system and those appeals were all resolved by four dissenting commissioners who are indeed sore losers they simply disagreed with the culminates in bander that indicates that members of collegial bodies do not have standing separate and apart from the standing that the body that it itself has so but this is the shortest let me come back to your whatever right they have and i think the answer is to the extent they sought to collaterally to challenge the validity of this settlement agreement the modified settlement agreement on a plan of reorganization which they never appeared to object to in a bankruptcy court they never filed written objections to and they did not have capacity to file an appeal from they might well be looking at in some hypothetical situation collateral estop effects that would preclude them from challenging its validity to the extent they have as a result of the dismissal of this sooner as a result of the fact that they never effected a proper appeal in the first fact that the bankruptcy court confirmed this plan in early two thousand and four all peals have been resolved and and that's the end of it the the of utilities emerged from bankruptcy the bondholders and creditors have been paid and we've we've moved on if i heard mr davis argument correctly if they were to file a separate lawsuit seeking first amendment damages for the suffering in two thousand and four a court could still look at the waiver provisions in the settlement agreement to decide whether or not those waiver provisions ought to be given the fact if they were somehow relevant to claims or defenses in that litigation what it would arise by way of a direct claim or cross claim or so i think you know part of my problem just as i'm having trouble understanding the hypothetical only because the idea of a public official suing his or her colleagues on a public body for having taken an official action that they believed was in the public interest as members of a rate making regulatory body is so sort of out there if you will that i'm having trouble imagining it i suppose it's possible in that hypothetical case as between those litigants for a court to say well they shouldn't have done that or they went further than they they were allowed to go in waiving sovereign immunity without him judge tom and you pointed out and this is really collateral to all of this because none of these claims are before the court but you pointed out that the sovereign immunity claim that they make here i e that the commission somehow didn't have the footnote that it's an assertion that's just flat wrong we've cited for example this court's decision in cats versus regents of the university of california where several years ago this court sent the state of california does have the authority on a case by case basis to waive sovereign immunity so the idea here that somehow this was a an unprecedented action and it was invalid as a matter of law really makes no sense let me just add by way of summing up that if the court for some reason concludes that there's some way of life case or controversy here and i don't think the court has heard anything other than conjecture about future actions that have not yet happened and most of which indeed have never been threatened and which we've now disclaimed and it were to get to the standing issues there are obviously three different bases that are addressed in the briefing  that's the vendor case that's this court's decision in city of lake tahoe and that whole line of authority that follows the board of education versus allen case that appellant's rely on so heavily  appeared or objected in the bankruptcy court to the provisions that they then belatedly sought to challenge and that is a that is a requirement that's very elementary and that courts routinely enforce by the way i should add they plainly had notice of this agreement the court will find in the record ms lynch isn't this true woods own declarations in opposition to the stay indicating that they were aware of the settlement agreement from the very day that it was first announced in june two thousand and three so that really is a red herring and then finally and ironically i'm getting to this at the very end although perhaps it's the first issue after mootness they're not aggrieved parties under the bankruptcy test in this circuit which requires that they have financial interests that be adversely affected so for all of those reasons if the court for some reason were to conclude this case is not mo ought to affirm judge walker as to the lack of standing and with that i will quickly see to mr rieman if the court has any questions remember off for pelly the california public utilities commission on first you'll know from my letter of february tenth that i am unable to respond to the court's inquiries in its order at this time but as i indicated before write to the court promptly after the commission's meeting on march second there was a meeting in february the california that opposing counsel that's the case california law constrains the way in which the commission must make consider subject matter that's meetings there's a notice saying requirement agendas are circulated i'm not an expert on these matters but it's the view of the office of the president of the commission on the legal division that the march second meeting as the meeting at which this only say that that the certainly the commission has routinely made litigation decisions that get in the on notice with you know push someone to announced agendas and i think that the present you know before the letter from the panel came out or we quest what does the record show what threats or contemplated action commission might take against the word for having pursued this litigation this far the the former commissioners rely on two points and those are the only points of which i'm aware of the first is that a letter was sent to by counsel to the commission to counsel for the former commissioners stating that if they asserted positions that the commission continued to be frivolous the commission would consider making an application for attorney's  director of the commission during the course of the bankruptcy proceedings directing the then commissioners now former commissioners not to state resources to litigate against the commission the former commissioners had submitted pleading s to the court signed by a commission employee there were certificates of service signed by commission employees serving court papers on the commission all of that was incredibly disruptive and the executive director s memorandum saying that in his view it was not appropriate to send commissions spend commission money and resources to litigate against the commission there was no threat of criminal prosecution there was no threat of referral the bar authorities there was nothing like that so to these two controversies i would say first apart from the attenuated hypothetical future character which can't satisfy the culinary interesting under the applicable here there is abundant case law from this court in the supreme court saying that applications for attorney's fees do not render an otherwise moot claim a lie and the second dispute the use of commission resources now hark from its distance in the past is  the issues presented are unrelated to the issue underlying this appeal that is to say the validity of the confirmation order appellants of never explained why the legality or illegality of the commission of the confirmation or would have any effect at all on whether they were entitled to use state resources to litigate against the state so those are the only two claims judge bias thank the the other or wedged controversies between the former commissioners and the commission on which they are a wife or standing or potential claims that they say they might want to bring the first is a claim against my from that such a claim would be totally without foundation on the merits the commission's client has all i'm sorry my friends client in this matter has always been the commission as a can comment of that representation we briefly acted on behalf of all five is very clear that such a representation does not prevent the firm from continuing to represent the commission even when it is adverse to commissioners or former commissioners in their personal capacity  does not keep that proceeding along live as against the other parties to a lastly we get to a subject that was discussed extensively with with mr shulman the former commissioners hypothetical future uncertain claims against the the commission i have relatively little to add to what has already been said on that subject the cooperation clause in the settlement agreement was completely ordinary it applied to the the commissioners only in their official capacities it consequently did not subject them to claims for damages the agreement simply subject of the commission if the commissioners cause the commission to breach the agreement to relief that is that is all it was intended to do and it's  individual commissioners doesn't qualify as representation that that should disqualify him from or his from from opposing them and after that but that's not the law can you answer that last point mr davis what does all that have to do with their standing to challenge the confirmation of the plan or has a great deal to do you roger mr reed this point is is that he thinks he was or he thinks this from was representing the commission as an entity in fact the commission was never if you're honest which the eleventh and then that question and the next part to young question you can clarify that the commission as an entity was not before the bankruptcy court and was not his client the five commissioners were his client because they couldn't vote their conscience as they were required to do under under their duties as official officials of the state and they couldn't vote in accordance with the settlement so they had to just not vote now in addition to those first amendment rights i think we need to speak briefly about the rights that they do have against mr rieman sperm that's simultaneously represented the p c and all five commissioners during this bankruptcy case in april two thousand and one and the case  mystery man was referring to countless if i understand your argument correctly it has to be that if a court found that there was an ethical violation through improper joint representation by mr r the question at that juncture your honor is who was mr lehman's for his clients have to live the dream because if in fact the p c was not before the bankruptcy court only the commissioners were and those were conflict of interest that arose when the gag order was issued in may of two thousand and three in the summer that he had he had conflicting obligations what's your best to support your argument that an ethical breach based upon improper joint representation invalidates the settlement that the commission voted to approve but that's not our argument you're our argument is that i don't understand where you're at i still don't understand the signed we directed our executive director to sign the settlement agreement and we voted by three to two to authorize him to do it so who cares what position mr reiman but we care your separate and conflicted counsel and they were repeatedly refused by the commission president there was it wasn't just a matter of representation in court it was a matter of representation during settlement negotiations in may of two thousand and three the bankruptcy settlement present p d by going along with a gag order the lawyers violated their duty to inform each commissioner their clients a significant developments in the case and to communicate someone offers to them that made it impossible for the other four commissioners to evaluate the proposed settlement and to cast a considered vote on it the conflict created by that that gag order automatically disqualified mr remans firm as soon as that arose at that point his firm's duty was to the purport act of its executive director and signing the settlement agreement on its behalf as the majority of the commissioners directed him to do in two thousand and four and that's the biggest issue in th luncheon and mr wood had a right to counsel which i think that they they certainly did under section three zero seven of the public utilities code and certainly under this court's bernhard decision and they were entitled to i don't quite understand why somebody hasn't brought a suit if that's what you believe and why this is so essential to your ability to present the client because i don't think that's why i'm playing like  damages certainly for malpractise by mr reiman firm and whatever damages fall from that malpractise that's certainly true your honor but so what this isn't the answer to judge reinhart's question we filed the complaint yesterday in the process servers are looking for mr reiman i made that out to be the question your honor but this this settlement agreement stands as an enormous obstacle to their being able to effectuate those points and in fact to being able to to find those claims how i mean they know what their claims are their claims are multiple improper representation failure to keep me advised in the settlement process i was injured by being my vote was arguably submitted to the court will stand in recess for the morning