briefs we're familiar with the cases you're relying on simply give us your best argument when the light turns red please finish your sentence i think you're right the first case is all american check cashing versus charlotte correlat please the court i am robin rasmussen of the rasmussen and main and i'm here today with the distinct honor and privilege to represent all american check cashing in its ongoing struggle against the mississippi department of banking consumer finance on the district court's misapplication of the younger abstention documents in all the talk about abstention it seems that the one thing that's been forgotten is that abstention is the exception to federal court hearing cases rather than the rule all american was forced to see the protection of the district court because of the department's ongoing assault on all americans constitutional rights and assault which continues today due to the district court's iranian abstention the initial point i like to discuss with this court is the department's violation of its own statutes specifically the mississippi check cashers act as well as the mississippi administrate of procedures act these violations by the department are per se violations of all americans due process rights in titling all american to the protection of the federal courts first the department demanded a three thousand excuse me a three million dollars fine and a revocation of forty two licenses issued to check cashers in the state of mississippi this demand in and of itself is a violation of the mississippi check cashers act that act which the department purports to enforce requires each location to be a separate licensee to provide separate documents and to keep separate records that's what all american does the department in june  three million dollars all american based out and revoke forty two licenses it hasn't even vesta gated forty two licensees if the procedure that the that is being objected to is the same for all and the actions were that were taken that were in violation of the statute were the same at all forty two locations why would they need to inspect all forty two because there are separate american and as has been shown to the department its policies and procedures specifically instructed simpler ways to follow the law to not take rollovers which is one of the things the department has alleged what a store does in columbus may not be the same thing that a store does in say gulfport or pascagoula or mcgee in any of the other forty two locations where all american has independent licensees the statute doesn't say licensees plural it says licensee singular the department may investigate a license see may go into that store it may look at that store's books and records the department's attempt to wholesale sweep forty two stores can't there be a remedy within the state system why must we jump over to the federal system because the state is not following exactly rooms and regulation because this the state this department does not have any procedures publish or otherwise that protect all americans due process rights in the departments raids and attempts to find it out actually what the statute says is that fines and license binds can be implemented and licenses can be revoked only after the department issues a notice it intends to do that and provides an opportunity for hearing at the time this lawsuit was to follow the department had not done that the department had not issued a notice it had issued suggestions  well this is what we think this is what we believe but it had not sent a notice or so the hearing it has since done that your honor it did that in june after these  and quite frankly the department continues with its violations of the department is relying upon the nineteen was their hearing and no ma'am there's been no hearing yet there's a hearing set november the sixteenth seventeenth eighteenth twenty second and maybe after that the department issued a notice subsequent to the filing of these briefs of the notice and hearing i submit to your honor that that doesn't comply with anything either because the department issued that notice based on a nine hundred ninety six rule which the district court unfortunately mistakenly found was still in effect at the time all of this occurred and your honors it was not it was not in effect the department had issued some regulations consistent with its statutes that were published with the mississippi according to the mississippi administrators procedures act and in those regulations the department specifically says that i think is where that specific regulation is so this hearing procedure which upon which the department relied in the district court and subsequent has been invalidated and there's no hearing procedures at your position no ma'am there is not and that is precisely why we are here today because the department only gets its powers through the statute it can't just make stuff up i thought there were hearing procedures listed on the department's website yes notice the november hearing those hearing procedures that you just look at so they are in effect a big part and they are in effect he said they were in effect anymore no they're not the that's what the department used your honor but the department yes that's what they went under but i submit to your honor that those rules are invalid in addition even though those rules were allegedly published on the department's website that's not the proper place for the rules to be published under the mississippi administrative procedures act that act requires that all agencies rules be published with the mississippi secretary of state and then the secretary of state comma gets all the rules on its website citizens should not have to go digging through multiple different websites to find the the rules upon which they are some subjected to particularly your honor in a case where a department a governmental agency is running roughshod over and individuals and in here use only merican as an individual's liberty rights and i'll give you one example for instance the regulations that the department actually problem gaited allow the department to some to look at books and records and it allows the department to summon witnesses to give testimony under oath what it does not allow in any way shape or form is for a a n excuse me examiner to walk into a store and conduct custodial interviews of employees nor does it allow examiners to carouse if you will all americans customers and offer their money if they will fill out a form that has been drafted by the department outside of its normal questionnaires and i suggested to your honor's that the department is simply a department that is out of control it doesn't follow its own rules when even they are published and then it makes up what it wants to do as it goes home and that's why all american needs the protection of the federal court and i'll wrap back around to what i said originally the younger exception doctrine that was applied by the lower court is an exception the general rule is that the courts hear what's brought before them in this case the district court erred not only in its finding of the three younger requirements but it also erred in its funding of the exceptions and i'd like to take the last couple minutes to talk about bias if i mi one of the younger exceptions is if the judicial or the decider can is is has is biased against the or has some bias that she cannot act impartially there's been a lot of talk about the commissioners peculiarly biased because of the unprecedented funds that proposed the department proposes but she has another bias as well in her own regulations she says that the commissioner is responsible for all of the acts of her examiners and herm ploys i submit to your honor that in light of the allegations which are undisputed at this point that the commissioner cannot impartially sit in judgment of all american when all of the evidence supposedly to be provided has been gleaned or created by the department took statements from employees and customers they didn't create a i'm sorry i'm an employee her own employees and that i would allow i would argue your honor that there was some creation of testimony by the department examiners finish it will ok before the examiners went in the department created a special questionnaire which it then presented to customers and had the is a great question your honor we don't know that there's a remedy go into shape court and here's why when all this notice of when all this hearing thing came up about november we asked the question what happens if the commissioner rules against all american do those rulings immediately go into effect the answer was yes they do if those rulings automatically go into effect all forty two licenses are revote all american is essentially out of business and there is no remedy in state court there is none and because of that your honors we urge you to exercise this court's inherent powers and grant the injunction that all american requested at the district court because of what has happened since then all right thank you thank you and all american failed to prove that any exceptions apply i'd like to start out by before hitting the points that i wanted to hit to hit on today i want to address some of the questions and some of the new things that we've heard for the first time today here at this argument first point kind of working backward judge prado your question about why not go to state court they can absolutely go to state court that's the adequate opportunity  and it's addressed in our brains and it's clear they can raise these issues that they're raising in the commission's proceeding they can also take an appeal to state court that's clear  in the good question are the way that it works in mississippi is this if there's a statutory right of appeal then obviously the statute will say where you have to file circuit or chancery court oem and set out the procedure for that if there's not a statute in the default rule if you will is that you can file in chancery court to appeal for the ministry of agency oh that's well established and that's what applies here it's what judge lee found below oh i didn't think that chance record they can make their arguments about stating they can make their arguments the standard their view i think is set forth in both those two cases reference or brief but they can raise the situational questions that they've got they can raise the statutory  questions they've gotten they can challenge the commissioner's findings under the well established standard of review that applies whenever mississippi courtroom view agency decisions  some other things that were mentioned that need to be addressed i'm a little bit perplexed by the argument that the department violated mississippi law in conducting investigations own and and performing the investigations back in june of two thousand and fourteen and the reason why i am i'm particularly perplexed about that is that if the argument is that the department violated state law and i think judge brought it on your questions was touching on this and that runs us directly into a pin her problem when we're talking about did they violate state law did did an agency of the state violate state law as to the a p a argument in this talk about the  six rules and does the department have any proper healing procedures their argument all along has been that no procedures exist and here's the facts that underl the mississippi administrative procedures law that was in effect at the time and you'll see in the record around pages seventy seven and seventy eight you'll see that those regulations were submitted to the mississippi secretar state's office in the early two thousand and specifically i believe it was in two thousand and three the mississippi legislature amended the mississippi administrate procedural and set forth some requirements about when agencies promulgated rules that they would have to do so by i think it's in july of two thousand and five they would have but the statutes in act by the legislature in two thousand and three specifically say that nothing in this chapter affects the validity of the rules and regulations adopted prior to the two thousand three  i think that that what what their argument is that after two thousand and five when agencies were supposed to submit rules to the secretary of state the secretary of state promulgated administrative procedures rules that required submission moves by i think two thousand and eleven and this is where you get to the argument that you heard earlier about the secretary of state oh it was supposed to compile and publish a list of all the proceedings it was the problem with the argument is that oh i'm nothing in the statute in the two thousand three statute invalidates preexisting rules and as judge lee found subsequent regulations and acted by the secretary of state pursuant to the statute to not invalidate previously filed rules as well it's i believe when it came up in the district court below the point was the statute doesn't violate the rules and a regulation promulgated by the secretary of state pursuant to the statute doesn't invalidate the rules it's nothing in this chapter is what the two thousand and three access about rules and regulations what about the allegations morning that the testimony was created by the examiners and the customers who offered money for healing outperforms my first reaction to that new allegation is number one it's not supported by the record at all and i think one point and this came up in the district court as well i think it's in a footnote in my brief own they kicked off this action by filing of their fi  to clear circuit precedent oh it superseded the very frightening complaint and i'm not even sure sitting here today that even the first complaint that's been superceded supports that allegation there was certainly no argument to the judge lee that i can recall about any of that stuff so i think that those kind of allegations at a minimum would would be something that would be procedurally barred ome to the extent that counsel is referring to things that are not in our record  i don't know i'm not involved in the administrative proceeding for the department i don't know if that issue has come up they are yet or not or if that's where they say that they're proof has been developed oh as to that point but what i do know is that our record and is as far as i nerved i think it was correct what counsel said about hearing being set in november i can also say i think that this is fair because it's really public record and not outside on record own the hearing has been continued several times already at all americans request so it's currently set i don't know that it's actually going to go forward and later this month but that's where it stands  e i'd like to focus on my two points own and how i had a couple of things that what i think from the department's perspective and also from the state of mississippi is perspective are the most important points about this case own those two points would be first their ongoing proceeding argument omh which frankly it's it's frak it's factually and legally incorrect own but the reason that it's important is that if you buy what they're saying  i think what you're looking at is significantly narrowing youngers application in the circuit and in a way that be inconsistent with our precedents in this circuit and i don't think you're even supported by precedents  elsewhere when you're looking at at the ongoing proceeding prong i think the place to start as you do with all younger cases is you're looking at the principles behind younger the federalism in the company and by that i mean proper respect for state functions and state policies avoiding duplication of effort and the recognition that interference with state proceedings can reflect negatively on state's ability to adjudicate constitutional issue ome and specifically the ongoing proceeding element as it fits into those principles is that quite simply you're checking to make sure that there is something going on that federally food interfere with it seems to make sense  the facts here and i wouldn't be labor them but they are in the complaint they're in our brief and supported by the record and as judge lee found this proceeding was clearly ongoing when they filed suit oh i think that cases like the whiteman case the ends or case the more recent case which is unpublished but still persuasive that judge lee cited the recall first is willing cases and i think that those clearly show this department proceeding was ongoing when they filed suit the three cases that they relied on in order to try to get to this result of some kind of bright line rule that it's a race to the court house own sort of situation we see in a debating judge bork steele's opinion there has nothing to do with this case i don't think it helps him at all on going proceeding was not a contested issue on that appeal all you had there was the new orleans commission had issued had received private complaints and issued a letter saying that they would like to investigate those complaints on but they didn't undertake any investigations there were no determinations of probable cause no charges and frankly the commission had agreed not to move forward oem so louisiana debating i think stark contrast here agency no findings of probable cause there was a conference between the agency and attorneys for the federal plaintiffs but what the the panel intel co seem to rely on was that the federal plaintiff was in limbo about what to do next and what would happen while they are first amendment rights were being chilled that's not the situation that we were in here in january of this year or later when judge lee actually decided the younger abstention issue and where we sit today nobody's in limbo the department's always been pressing these charges and moving forward with its case  in the most recent case and it's one that we have we're familiar with from mississippi with the google case i think has nothing to do are it does nothing to help their case oh that was the the recent case higginson's decision about the administrative subpoena and as to the younger abstention issues in that case the federal court filing was actually so early that the case wasn't even ri review oh but i think the most important takeaway in this is in a footnote in my brief on the most important take away from the analysis in the google cases their own the panel they are just declined to establish a bright line rule and specifically ruled that in the ministry of subpoena without more would not justify a finding of an ongoing proceeding our case frankly is the with more part of th last thing on the ongoing proceeding argument in this kind of it was a it was raised for judge lee but he felt like he didn't have to address it because we have such a clearly ongoing proceeding but the hicks versus miranda issue about and i think that this really explains why it's not a race to the courthouse problem ome under the hicks line of cases you measure whether the state proceedings are ongoing before any proceedings substance take place in federal court now oh in this case no proceedings of substance in federal court have taken place all we have is a  oem and those those have not occurred yet here they reply brief cites the display in case for their race to the courthouse contention i think that that clearly ignores footnote eighteen of the despain case that acknowledges hicks and basically says in an easy case you can look at when the complaint was filed and what was going on but in more difficult cases you may have to dig and apply the hicks rule ohm the best district court and straight shooters vs st tammany parish it was about a night club with a noise ordinance there were some citations issued and the federal plaintiff filed suit then there was an arrest and so you had in the filing the suit in actually addressed temporarily staying the state proceedings own but there were no proceedings of substance that took place before measured against no proceedings the substance of the years in federal court ome about the amount of the fine three million dollars well with respect to and i think that this gets into my next my my of my other collected the money would go into the state treasury into a fund that's established there the consumer finance fund for the department and who determines how it's all we can understand the legislature does not the commission not the commission and i think that judge lee's order is clear on this our briefs are clear on this but just briefly to sum it up the department is not an autonomous governmental entity it's a state agency penalties collected deposit at the state treasury and the legislature through its annual in mississippi we do it your buy year the budget approval and appropriations process is what governs what money that the department can spend ome the details there they're somewhat boring details but the details of this are all contained in the record starting the declaration from our fiscal officer looked at for ninety three and the hundred or so pages after that but the point being is if you look at page forty six forty seven of our brief we put out this example of what would happen if a fine is assessed and collected the department cannot spend it because it's not in their budget for this year they don't have authority if the money would be deposited the state treasury and then the legislature was side with the department spends it at some time in the future they could require that the department to it or and this just happened what happened this past legislative session it happens quite often the legislature can take the money and put it toward some other agency or some other state program it's state funds that's the point state funds and the legislature controls it i see the my terms almost up with the court has no other questions i would simply say that it's the department's position that judge lee's opinion be referred affirmed in all respects all right thank you thank you i wanted to clear up one perhaps misconception if i misspoke apologized to the court what that examiners did with the customers is they didn't say i will give you money if you fill out the form they said if you fill out this form you are well if i can this is apple records sixteen point six zero one seven i got one eight two these are the department's published regulations regarding the mississippi check cashers act while these and these were done in two thousand and three your honour's while these regulations are intended to and do supersede all are regulations issued by the department of banking regarding the check cashing industry these regulations are intended only to clarify the existing law i submit to your honor's that the department's own regulations where they actually did what they were supposed to do invalidated that one nine hundred ninety six here and now the other thing i want to talk about is the the footnote for came and again judge lee missed it it was a mistake it was a mistake either under a no vote or an abus discretion when he found that the department's one thousand nine hundred ninety six hearing rules applied that in in the of itself is a violation of all americans due process rights and  requires federal intervention to protect this citizen's rights the other thing i want to remind the court years i think the younger exceptions and applications have been fully briefed so i don't want to spend a lot of time on that but one thing that we have to talk about is the irreparable harm immediate and serious that will occur to all american in the event that the commissioner revokes the licenses contrary to mr mathieson use argument if the commissioner revokes those licenses by the time you get to chance record or circuit court whatever it is that decision has already been implemented why can't she go in with a t r you can you are but by that time all americans are already closed damn that's true virtually every agency proceeding state in federal court of fifty states and there's not we don't go into federal court and say wait a minute just because we have published rules that you can depend upon that you know will be followed in this case the department has demonstrated that it doesn't follow either mean you're assuming that the chancery court will act quickly enough that all american highways that's true in every state administrative i don't know about every state administrative process your honor i'm  dealing with what the department does let me just tell you that ok you don't automatically get a stay of a fine and or i understand minestrone law i mean a lot of states are yes you can you can move to suspend or whatever but there's no constitutional right to have review before fines imposed no no your honor but there is a constitutional right to have your constitutional concerns heard and i submit to your not that the department itself is not interested in maintaining either all americans constitutional rights or following any of the walls that were the for all american appropriate