representation by the public defender system and those cases were then state by state courts precisely because the public defender could not provide weapons and putting aside the issue of waiver of both the thing in this case have yes no no not that i'm aware of and ok so why didn't the public defender that you're representing make some kind of motion to get relief for those individuals they still sit in in jail as far as the record is concerned is that correct could have objected to in state court the it's the state judge who has the power to say no you need to come and represent these people or i'm going to appoint somebody else so that they don't have a speedy trial act or a way to dismiss that whatever the comparable state law in order to get the case dismissed so the the primitive was with the state judge your honor my client is languishing in jail this is wrong this is against their come right both statutorily and constitutionally and i would like to get relief in state court judge give us give us a lawyer of the were entitled to know your honor the public if we public i am  lawyer for these clients in the federal case i am not in louisiana lawyer and there were hundreds of individuals in orleans parish without counsel and did they file speedy trial motions to dismiss did they pursue any relief whatsoever for this conundrum that the state court was creating by just continuing these proceedings over and over again that i do mean of a public defender or baton rouge to grab it consistent with the rights that are written in the united states constitution those individuals got constitutional rights to be represented i agree with your men there six men right is being denied but yet no effort has been made to try to obtain sixth amendment rights through the usual means of state procedures to protect those individuals who are they have no lawyers  they could have another list the court is the one that has the responsibility to make sure people are there to represent those defendants and if the public defender is not adequately staffed or whatever reason using the resources for and i'm not here to cast aspersions on them in any way but if they don't have the resources to provide the services then they have to tell the court we can't provide the services which sounds like they did and then the court has the responsibility to make sure somebody represents those people it's the call on the court of the state court you are the state court could have taken action perhaps in this case but as we contend the federal courts can also act and what we see here is essentially a bright line rule to that effect not if the state court hasn't been asked and refused and they're an essential party to this i don't think there's any doubt that the state courts were perfectly aware of what was going for two different reasons first because your individual named people have all had their proceedings already and second for the more probably the broader more important reason why isn't it mo because independent of this litigation the the public defender's office has changed its policy perhaps in response to new funding mechanisms from the state and so this is no there is no longer a list like this why isn't this whole case moot and that the non capital defendants now have adequate funding and these people are not being deterred anymore but to your first question i would agree that the occasions after that with each amended complaint but if there's no other there are no other people similarly situated at this time because there is no longer a list then that's a much bigger problem for you in  not in this case your honor as a defendant dickson pointed out in his briefing there are still eleven individuals on the capitol waiting list capital is not similarly situated to non capital in the way this case has been litigated is it yes it is none of the class people are capital there are non capital by definition our class was defined as any individual placed on a waiting list by the public defender system in the state of louisiana that was the main class that we sought to certify and our second amended complaint and we had a subclass of individuals in orleans parish neither of those classes was defined with respect to capital and non capital status in the important reason for that is because our claim to council was claimed on capital people on where do that is correct and you have not responded to that you don't know you so you don't know whether it's true or not there is nothing in the record with respect to the types of individuals who are on the capitol waiting list there is nothing in the record with respect to the current state of louisiana budget for public defense all of that might be very well suited to proceedings on leaman to the district court to find out precisely what is going on with the waiting list and to what extent back and substitute proper class members that wouldn't be dispositive issue it would be a matter that we could clear up in the district court right now i mean as to what relief do you hope to get from the  defendant situ have sued you are the state public defenders and the orleans public and so those are the two defendants in this case that's correct what do you hope to get from them as a result of this lawsuit most immediately counsel or individuals placed on waiting lists ok you hope and yet you have not made a motion for this industry who work on behalf of these two individuals and shakoor on behalf these kinds of claims proceed but that cannot counsel not through the public defender but through other sources that state court does not have to use the public defender to provide counsel the state court just has to provide counsel to have three additional minutes just to make an argument and then we'll ask interruption and let you make it make it and then you that other side may have to extend it is another side may have three additional minutes as well there i would just say this where the public just where the cases have been stalled by the state courts because the public defender system cannot provide counsel there is no barrier to federal courts entering limited to make the federal the public defender provide counsel and this court decision recently you know dollars harris county confirms that abstention was improper in this case because it held that where the state court proceedings and where  i provide at that point on those because the state court proceedings by the state courts have been stayed precisely because the public defenders could not provide representation and because of that because we believe in this case would facilitate the state trials there is no requirement that we seek relief from the state courts first nine hundred eighty three does not require exhaustion and as this court has made clear and o'donnell when appellants when plaintiffs excuse me are seeking simple non discretionary procedural safeguards in the pretrial setting up stench and is improper how is it that you could get relief from us unlike in o'donnell that you mentioned where it is the judges themselves who are in the lawsuit and have to grant certain relief how is it that we would give you the relief you seek we can't we can't order that the public defender's what are we to do order that the state court provide and counsel or order that the state court provide a public defender that there are two different things what would we order that's not being done going to you in order that the public defender system provide counsel the public defender system that's a researcher violation is that nobody is being provided and if these are the individuals directly in charge of providing a lawyer then under ex parte young and a well established by you case law this court can order those defendants who run the system to gree they can't represent us we agree they are overloaded they get you understand or not to do them to do more when they say they can't do what they're doing now and you agree that they can't do what they're doing now you know we have aces come heel advised it seems to me i'll claim that there is a constitutional violation and not providing the lawyer and if that remedy requires additional funding then so be it there is no bar so i can do it the federal do have a question about the two questions about that actually so you would have us order them to provide counsel under a circumstances where they have in good faith and we trust them  officers of the court said that it would be a violation of ethical duty so we're going to order counsel to be put in place in violation of ethics legal ethics that seems to be a big to court appoints them is that right i answered yes went into the question isn't there a problem with the proposed class if there's a conflict of interest between the non capital and the capital defend given the limited pot of funds in the way the funds have been divvied up in the past to divide between capital and non capital defendants perhaps your honor we don't have any information about the waiting list for capital defendants the problem is i don't have anybody here to argue any of these things all of these arguments that i think up about the class ok thank you if you're hon is it a problem between the proposed class that there's could be a conflict of interest because the pools dividing between capital and non capital and that can cause a class conflict that i do i do not know the answer to we don't district defender of the orleans parish public defender's office i'm splitting my time between mr lee and us over here who represents mr dix and he may be able to tell you more about the current system of there are not much that i disagree with in their brief i think they've while various adversarial relationship the adversary relationship i believe is between we understand and agree that these defendants deserve  should have counsel but our problem is we do not have the ability to provide competent counsel at this problem and we understand there is a constitutional obligation to society in case this kind and the only people that or judgment from the federal courts that you can go to the louisiana legislature and say look the federal courts have said that these people have been denied their right to counsel on the grounds that they're not been properly funded give us more money well from our position i feel like we're sort of in a conundrum and europe's you are agreeing with that we do not want to violate constitutional rights of the people we represent and we have those motions we well we this is the problem  to the question you asked him because of the case load of the indigent defenders of the public defenders that we have we had to start refusing or attempting to refuse to take the cases and once you refuse the case you don't do anything you don't have the time to file and somebody should come in that is not refuse the case or the court should say i have an unrepresented defendant and i need to give them a speedy trial w isn't that right the court has a responsibility once they realize that you have refused to refuse to representation to appoint a new counsel and i think this goes to what they're i don't necessarily want to argue their case but i believe this goes to their argument that they don't have lot that didn't have representation and he released so every time they don't have representation they can file motions that say if they choose to does that they're that if the client wants that motion and it's appropriate under the law the think should get relief and then when all the criminal defendants in this parish to have to get released then maybe the legislature will take action because they won't want all the criminal defendants released but that's not a problem that means it should go to federal court the problem is once judge arthur released a judge hunter released that they appealed to the four circuit who reversed his judgment and the supreme court threw up all that reversal segment needed to do an individual evaluation which you'd need an i wouldn't say been running a crisis has been remedied but i do understand that currently the orleans parish public defender is not operating a wait list for non capital cases i believe that there i think that in my view it doesn't meet the case because i don't believe that there's anything saying that we couldn't operate a waiting list in the future if if it becomes necessary again which given the fluctuation in our funding and the motion to i mean why didn't you argue in your brief that it was moot then and like anybody else would say if all the problems have been solved i wince relating to the all the people that are currently in this lawsuit because by mr landis but i think there was additional funding that was provided and i'm going to play through by the legislature and then i believe there was a reallocation from capital funding to nine capital funding so that makes a conflict between capital and non if it's in one pot and they're taken money from the other it does seem like there could be a conflict anything else you want to say besides that the only thing i really was going to mention is that the district court recognized and its response and its order ruling on the plaintiff's motion for relief from judgment on page four of it that that younger can be  the defendants can submit to jurisdiction under young or and the defendants in the case that he cites flip versus conic are basically argued the same thing we did they did not they did not raise abstention and at or argument they raised up the core of this is an issue that the court really should rule on and should not abstain would you get permission from the state to waive younger on behalf of the entire state i don't think we waive younger on behalf of the entire state i just said that one name is john landis i represent mr dixon who's a state public defender i think i have a good idea of what the panel is interested in and i'll try to address some of the questions i think i should begin with perhaps an update of what the current situation is as to wait list in the in the system as as we've mentioned in our brief in two thousand and seventeen the louisiana legislature mandated an increase in the share of the total allocation that would go to non capital versus capital there was no there was no increase in the total funding it just reallocated the funding that exist suited to represent capital plaintiffs since the money's being taken from them are they well let me continue if i will i'm not sure i agree with that ok i want to know why well the outlook going forward for the non  cases is not good a caseload study published in february of two thousand and seventeen by a committee of the american bar association and the louisiana accounting firm of postlethwaite netter bill concluded that the public defense system had the capacity to handle competently only twenty one percent of its actual caseload that means that the frontline public defenders have case loads that are grossly going to excess of any  situation that is likely to reoccur within the forseeable future white list may well come back not only in this district but another district does does the louisiana law provide that lawyers must agree to take mandatory or louisiana bar rules provide that lawyers must agree to take pro bono cases whenever appointed by courts is that part of the louisiana  bar that is part of our rules of professional conduct however i think it also addressed the question of why didn't the court appoint someone i think some of the judges have done that and they won't mind for you to do that and they were opposed by the counsel they appointed who oppose their appointment and took it up on appeal saying you can't there's no money to pay us and you can't make us represent these defendants six you can't conscript lawyers because they our supreme court has held this that if been appointed lawyer and appointed lawyer is entitled to be reimbursed for out of pocket costs and overhead expenses and that if this is the citizen case and that is if the appointed lawyer if a lawyer is appointed he or she may then move to determine the source of funding to cover those items and further if the court cannot and overhead so the end result if there's no funding is that these cases just get state and in most cases the defendants stay in jail and nothing happens until looks to me you're looking for a constitutional violation a constitutional violation that has no remedy because i mean you can't come the you the eleventh amendment prevents individuals i'm coming in to sue in the state of louisiana but the the federal government the united states can sue the state of louisiana and if it set don i mean it looks like the united states is i'm not quite sure about all receiving how they would sue the state of louisiana to fund the indigent defendants but you really have a problem which i'm not and all i'm going see well you know just no solution well i agree there is no there is no ultimate solution except funding for much and and i agree that this case will not provide a vehicle to to order the state to provide funding if this if it doesn't provide a vehicle to solve the problem it's it doesn't provide a remedy i think it adequate remaining remedies that it that the court can provide i think are worthwhile we agree everyone agrees in this case it's a sixty minute violation to point out defendant on a wait list we also have submitted to the district court that agreed and agreed consent judgment that would declare the use of white lists to be unconstitutional that would  adversarial relationship which meant that you have standing in the federal courts to name jurors i disagree in that it was a negotiated consent judgment the plaintiffs asked of much more and in fact have have argued to us and i think to the court that they can get injunctive relief against my client to require him to do something i disagree and that's we are adverse as to that we were able to agree to a consent judgment as a compromise and that may not require that the state legislature provide funding i think it may well cause him to consider abhi and it it's certainly yes i don't disagree with that at all  board within the executive branch does it have the authority to submit to federal jurisdiction on behalf of the entire state for purposes of waiving younger well the my client was sued in his capacity on behalf of my client an individual in his official capacity so you didn't you didn't assert things we did not and and believe that it would be inappropriate because this is a recurring we think there can be meaningful there can be a meaningful remedy in the form of the consent judgment that was agreed to and that should provide an incentive to louisiana to provide additional funding it's not a complete remedy admittedly but i think it's the best remedy that can be they can be entered in this in this action those are my those are my well i have a question please explain why this case doesn't fall squarely within by us because there's no claim that has been certified and the individual plaintiffs can raise their claims in their individual criminal cases  defended the board and p d to provide a lawyer cannot possibly interfere with the state criminal proceeding it would in fact facilitate the come up proceeding thank you can