claims based presently on the application of worker feldman and race judicata because there was a dismissal with prejudice of the pleading stage or here pursuant to do no review significantly the city did not merits of the decisions since judge where ruled make it clear that worker feldman is not a bar to these claims we do not dispute that the state court judgment was correct is a matter of state law we do not seek to reverse the state court judgment we accept it for all purposes we are here to assert federal constitutional claims that assume that the state court decision was correct can you move over in front of the mike certainly you want to hear your room clearly thank you thank you what judge where found was that because the state court judgment and the federal constitutional claims were here in the state court litigation concerned m h c as claims for rights under state law the federal claims concern i mean these rights under the due process clause the takings clause and the equal protection cla those are very different primary rights than the ones that were certain in state court which everyone acknowledges did not include any litigation or assertion of federal constitutional claims or rights as your is in at least in part or in any part is your challenge to the written control ordinance facial we have asserted an additional facial claim as well as an as applied claim we have assert reason that judge where erred in applying that doctrine and that is in the gallagher decision and the california supreme court's decision and model which adopted gallagher the court recognized that when you have a ministry of ri proceeding in california and the one thousand nine hundred eighty three action in federal court they are intrinsically asserting different rights that have been mistreated rip proceedings concerned with compelling a hearing officer who's not even a judge to follow the purposes it's merely considered a proceeding and in fact there has never been a reported case in which the failure to assert a federal constitutional claim in an administrative proceeding where there is not even a trial judge during the fact finding that has never been held to preclude the assertion of those federal constitutional claims in a federal court and it would be unprecedented and contrary to modify and gallagher to do so finally as your honor is aware insana  s court implicitly recognized that where there is an england reservation a federal taking claim should not be precluded for claim preclusion purposes based upon the you're to assert that in stated ministry of proceedings and we that the underlying rationale of england is equally applicable regardless of whether there's an explicit reservation and in fact in england itself and i'm quoting three seventy five us at four twenty one the court  reservation is not critical it said such an explicit reservation is not indispensable the litigant in no event is in no event to be denied his right to return to the district court unless it clearly appears that he fully litigated his federal claims in state court we have here the classic ifs tension situation where had we gone to the federal court on our federal constitutional claims first poem an abstention would have applied because we have a novel issue of state law that's never been construed before and the resolution of that issue could have narrowed or mooted the federal constitutional claims that we were obligated to go to state court first to determine what the state law meant as a matter of state law having done so we request compensation and seek compensation in state court for years we could not have asserted at least the as applied taking claim in state court because under the law in the circuit at that time it was necessary to at least get a final decision on the application of that law from a state hearing officer there is a requirement for final decision under williamson as to that claim theoretically we might have tried to assert the other claims but again we were not obligated to do so and we had every right under england in the decisions of this court not to assert those claims and under gallagher they're not compulsory claims we are under no obligation to do so with respect to the requirement of seeking just compensation we believe that this court's decisions in ventura and in kashmir which we've cited in supplemental letters to th that with respect to a claim for failure to substantially advance in legitimate interest there is no obligation to seek just compensation because the remedy is invalidation of the ordinance and of the law does not substantially advance legitimate purpose it is an invalid law in the romney is not compensation and that is equally true whether the claim is facial or as supplied and therefore there is no obligation to seek just compensation and order to reitman the as applied claim we did however need the determination by the state court and once that claim became right we promptly asserted that if i might turn briefly and i should say that as to counts one two three and we submit seven which are the equal protection due process and taking claims that the only grounds for not reaching those claims on the merits were race to the cotton and worker feldman neither of which should bar a decision on the merits and those claims should be permitted to proceed in any event with respect to the facial taking claim there was an additional ground of decision which was statute of limitation with respect to the statute of limitations we filed our claim within two months of the appellate court interpretation of that law until the appellate court interpreted that law the claim really wasn't right in the injury was not known the decisions of a trial court in california are not final until the appeal is resolved and so there was timely pursuit of the facial claim as well as of the supplied claim with respect to the other set of issues which concerned if that will do process claim and related state claims with respect to whether certain second home owners are entitled to rent control the only ground for not reaching those claims was rightness and with respect to the rightness of the issue we have alleged that this is a situation where the city has taken a position that certain people who are on to homes rent control for their vacation homes the city would like us to submit that issue to a hearing officer but the problem is that the city which has already taken a position on this issue appoints the hearing officers they are not judges and those hearing officers make a living from were teen appointments by city centers the court recognized and hamas when you have hearing officers who have a pre financial interest in ruling for the city in the city has an interest in the outcome that does not comport with due process and therefore it would be futile to pursue a state court process in that circumstance at least in the pleading stage those allegations should suffice to address the rightness issue and we should cases brought by state court losers complaining of injuries caused by the state court judgment are prohibited in this particular case the sixth district is typically decided the issue of fair return and whether  moreover almost every single one of the cases cited by m h c on the record feldman issue are cases in which the party green federal action has been successful in state court that is not the case state court judgment or as distinct from that judgment there are one hundred thirteen allegations in the federal complaint more than half of which directly deal with the decision at the state court level the ultimate decision in that case of holding the ordinance upholding the administrative hearing officers interpretation of the ordinance determining that image she received a fair return is what's being sought by dealing with that particular issue this court the federal court would have no choice but to review what the state court did as to any argument that it didn't get a fair return i briefly want to move on to  a couple of the other issues mentioned by opposing counsel and that is the the cities process in terms of the argument the city doesn't have an interest in the hearings conducted by hearing argument the same argument really applies i mean she has not made a meaningful application a meaningful application is required a letter from the city attorney's office who has no decision making power as to the administrative hearing the city is not a the hearing should not be considered a final determination therefore the issue as to the second homeowners is clearly not right at this point  i just wanted to mention in no well the the of her has repeatedly distorted the language in the well under her feldman by trying to say that this is not an appeal of the state court action and i think by looking at this separate allegation set forth in the complaint that that this court despite the other cases despite the recent case law in this area has no choice but state court decision to get the federal courts to allow it to get a running crease above the rent controlled amount by claiming it did not get a fair return or cannot get a fair return based on the ordinance the way it is structured i hypothetical question for you surely i think what's imagine a completely different mobile home park within the city limits of san jose subject of this ordinance and the owners of the park have the same subset of issues that this case says they want to make sure that they abide by the local ordinance and that they exhaust in the remedies that may be required of them so they're not determination that a rent increase could not be had and the takings issue is very trying to issue any of the constitutional issues that would be raised in federal court are not decided and their reserves by that party then i think that there would not be a problem in bringing the case so they should simply go straight to federal court in not involve themself in connection with the ordinance or the state courts in any way no no that's not what i meant i meant that if they are challenging the ordinance on an as applied theory then it has to be applied it has to be right and by that i mean they either have to go through the process or successfully show why the product going through the process would be futile and avoid that altogether otherwise the federal court would have no choice but to send it back in order for a state court for them to exhaust administrate of remedies at that point and it's like catch twenty two to me in some ways it is however these are state court issues in terms of if someone wants to increase rent control rent in a right control scheme they have a process and that process is has been determined to be a fair process by some courts i think courts yes your honor and that process once they go through it if the takings issues if the federal constitutional issues are not dealt with they have the right to bring those of course if they succeed but one thing lost its decor and they've lost on the issue that the ordinance upheld as constitutional that they're getting a fair return then they have a feldman problem and it's a wrecker fellman problem i think from city standpoint because we're talking about a state court loser had succeeded at the state level and at that point the on the court said no you're not getting a fair return we're going to allow you to increase the rents to whatever amount you would like then i think they could successfully go into federal court and raise all of the issues that they're raising now assuming that they're not barred for other reasons that is not the case we have discretion to do whatever the hearing officer wanted and the hearing officer made a decision and we said that decision injured us we might have a different issue but the law was construed as mandating the use of the nine hundred eighty five based year and we contend that a law that mandates a base here it is seven years after the start of rent control so it doesn't even reflect market conditions and that reflects the base year that is eighteen years old w prohibited leave difficult to have actual data that such a law violates due process you can protection and the takings clause and that has nothing to do with the hearing officers decision it assumes that the hearing officer was right and that the state court was right in that one thousand nine hundred five is mandated by the state law and we then contend that the law itself is causing her injury in the law itself is what violates the federal constitution with respect to  fair return issue there is no issue preclusion that was not raised in this case nor found in this case what the hearing officer found and again not a judge not a full winter opportunity to litigate but what the hearing officer found simply was that m h c had failed to prove under the use of a one nine hundred eighty five base year that it had been denied a fair return that is very different than the issue that's before this court which is  constitutional to mandate in one nine hundred eighty five basically or under circumstances where that doesn't reflect market conditions and under circumstances where it's undisputed that through no fault of the owner there are no actual documents or information available from which you can rebut the presumption mandated by the ordinance that that is a fair return even if there had been findings of fact which had some bearing on this case which there were not we would contend that there was no full and fair opportunity to litigate for precisely the reasons we've alleged in our due process claim related to the institutional bias of the hearing officer and the fact that in these circumstances the trier of fact was not a judge not even an administrative law judge and that decision by that hearing officer is then we're viewed under a very deferential substantial evidence standard so that we've never even had a determination made by a judge as to any facts and i know about have we had any fast term and that are in any way precludes of the federal constitutional claims that are asserted here and finally it is well established the race judicata does not depend upon who won or who lost it is a question of whether the same primary rights are being asserted in the later litigation and we also suggest again that categorically race judicata is in a pluggable in any circumstance where the state proceeding was an administrative rip receiving and