good morning i'm sorry to be prolonging your day now this is an interesting case you don't need to apologize thank you my name is michael to fury and i represent the city of san the city is bringing before you today a claim for a fourteenth amendment due process violation are asking you to embrace in a sense an unremarkable proposition that parties with property interests who participate as parties and  your finger right on the issue south lake tahoe said that it political subdivision cannot challenge a state statute there's no state statute it's been challenged the bases of the city's participation is this city's property interest in a franchise contract with s t g any that provides that s t g any well only construct what is necessary right to participate as a party so can i ask a question though because this is a due process claims with two fundamental questions first is and this is jumping ahead to the merits song going to jump around but how does the city have  due process claim when there was a state remedy that was allowed to appeal and they didn't even take advantage of it they intentionally let that go another excellent question attorneys make judgement we felt well maybe you have an opt out well ok i grant you but we felt that the better option for us to bring a federal due process claim in which we are alleging some pretty serious facts regarding the state of california and the public utilities commission that the better forum to resolve a federal question under the constitution is a federal court not a least by my count that have written on this question said this court should take it on banks that say south lake tahoe might not have been properly decided or at least the the length of it or the breadth of it however no judge seems to suggest in any court that a due process claim by city is the case the provides the exception to this and i mean the u s supreme court has already said over one hundred years ago that that the city doesn't or as a political subdivision does not have a due process claim against the state it says it doesn't have a due process claim against the state to challenge the statute this is not this case this case is we are literally admitted as a party in a put judicial proceeding in in allowing the person who was in charge of this the presidency if you see in allowing an unnecessary s t g any revenue project to see if you see president violated the city's due process rights denied the city a fair hearing before an impartial tribunal the project decision was supposed to be made by an administrative law judge after hearing the evidence in the case here's what happened there were nine days of heavy duty testimony san juan capistrano participated as a party cross examined but evidence on s t g any participated s t g any call to five expert witnesses there were three witnesses on the other side this is what the administrative law just said after hearing the genies witnesses were repeatedly quote evasive obstructionist and generally lacking credibility quote unquote and then the administrative law judge step forward and said after listening to the eight witnesses and considering the evidence the privacy wasn't needed it wasn't needed for reliability and it wasn't needed to serve load that's what the decision should have been but instead in violation of due process the c p c president had a series of x party meetings x party meetings in of themselves are not a problem but in this particular case when you read what proceeding in which everybody else has due process rights and the city has a property interest in the form of its franchise agreement term that says hey only what is necessary only what is necessary the city participates shows it's not necessary and the entire administrative process you know in the stevens is your position that an appeal in the state court was a futile effort because you could it was so tainted that you couldn't get a fair process on appeal your honor that's a slippery slope for me to go down well it's a pretty important skill peabody's address that because you know is you delve into this and sure you have the concept us is the best forum to resolve fourteenth amendment claim in which you're alleging bad behavior on the part of super powerful interests in which the governor sr sits on the board of directors of the entity is probably not the state court you're probably going to have a better chance in federal court or and so maybe you could get a federal court if you go up to the state supreme court the maybe you can have a direct appeal to the united states supreme that the court has never said that if a city participates in additional proceeding in which it has a property interest it has no due process rights that i actually don't agree with that i think the us supreme court has said a city cannot sue or a political subdivision cannot sue a state for a due process violation end of story that does seem to be a political well you know if you look if you look at the good million case  and legislature could or the city could jam all these different neighborhoods together but it was it did involve a state agency and and your honor you want to have a million and you have a couple of other cases kill in our d c where i can distinguish them from penn hearst and all the cases saying the eleventh amendment bars the sort of suit is there all race discrimination civil rights cases every case and th goes your way is a race discrimination civil rights case and all the other issues seem to be straight eleventh amendment they're not looking at the fact that your political subdivision so much as that you are suing the state without its consent let me think your honor for bringing up the eleventh amendment the eleventh amendment simply states that we have to sue an individual if you look at exactly what it says is you can't sue a state and imply only you can't sue a political subdivision of a state period by then you limit the memon says in law or equity what x party young says is yeah that's right you can sue a state for political subdivision but you can sue an individual for an injunction because we presume that the state would not authorize an individual to act contrary to the constitution right and that's essentially our insua an individual well know that but we did we didn't necessarily explicitly name as a party but if you look at our complaint beginning on paragraph six the actions of c p c president are alleged to quote lie at the heart of this complaint close quote and then we then proceed in forty four specific paragraphs laying out right but the problem is named defendant in this case the california public utility commission that's an agency and arm of the state so even if you can get past south lake tahoe the eleventh amendment would do this litigation when we should be given leave to amend we've never amended the complaint we requested leave to amend before they just record the gist record never got to the question of whether we could amend and the and the basis for our amendment as i said if you would if you if you would take a look at the allegations of our complaint regarding president picker you are twenty five to fifty eight easily added as a defendant easily out is it because he is the sole person that orchestrated what should we analyze fertility here in the first instance or send it back for the district court to do that i think out of fairness to the district court you send it back to the district court did did you tell the district judge who is considering this motion your honor if you dismiss please give us leave to a man who we think we can amend to cure the defect we asked for leave to men before hand and in our papers but what happened adjudged based on the same argument well based on that we asked to for leave to men on the eleventh amended but he never got to the eleventh amendment the judge only got to south lake tahoe remember the eleventh amendment is about suing an and argument to the district court the way you've done it here well we put it in a request in our papers and we never got to the eleventh amendment because he ses i hope you know but i just i just ask a my own my time no but do you want to save any for it i want to see if the rest of out of it but my i just ask you to consider this this is not about a city suing a state this is about the ability of a city to have the same due process rights as any other participant with a property interest at supreme court has said you don't that's the problem with your argument you're wrong and i want you to come back to me on the go million case and i'll let you do this in rebuttal because the petitioners are negro citizens of alabama who were at the time of this redistricting measure residents of the city of tuskegee i want you to go back and find me where i said he was a party and i want you to go and get but i will say this you are if you look at judge reinhart and i'm here for the california public utilities commission also council for san diego gas and electric has requested a few minutes of time and so i'd like to try to reserve a couple minutes for them to have a say as well brought the action was not brought by its political subdivision against its creators state come home meow softly talk show appears to be good law we've affirmed multiple times i can't for the life of me figure out how they reached that conclusion we seem to be the only circuit with this per se rule and i tend to agree that we should revisit south lake tahoe i mean you read it help me understand what the basis is to say that a political subdivision can never sue the state well i think it gets back to sovereign immunity and it's not that it can't sue a state but what it derives from the eleventh amendment well it's not nice not necessarily the  eleventh amendment but the rights that the states had upon entry into the into the united states of america even predating the eleventh amendment and the eleventh minute recognizes that but the federalism has these two poles of state law fact that stablish president benefits the ninth circuit by having settled law i think it's clear it's easy to follow i think if you're not a practitioner you should know that you shouldn't bring a case to my role in federal law i'm not sure it's so easy to follow south lake tahoe says that it's well established that political subdivisions of a state may not challenge the validity of a state statute under the fourteenth amendment and  southlake who speak clearly to that south lake tahoe doesn't but the the succeeding cases do and so south lake tahoe think airport that i thought m it's not as clear as of like well i'm sorry but something time itself has mentioned statute but in fact they were looking at quote land use regulations and regional transport plant transportation plants in burbank they were looking at procedures for review by the burbank city council in the palomar case the plaintiffs were complaining about the california code of regulations so the idea that there's been any kind of limitation to just statutes is that that distinction has never been recognized by the by the circuit well so i would agree with yourself they call who was on its own what's interesting to me is that our subsequent cases i'm not sure that south lake tahoe was a per se rule but we've always said that it is in the law and not just once like multiple times so it puts us in a tough position given all this line of cases i'm more worried that the problem is the only analysis of whether let south lake tahoe should be you know  upheld or or continued is in concurrences or descends we've got three judges have said it should go on but we might get enough votes to take it on bank without ever asking for a non bank vote but unfortunately they've never come together in one case i don't think this is the case to take it and define it but it is confusing as to why we are such an outlier every other circuit four or five by my count has said no there are certain cases where this political subdivision can sue well that there's been a carve out for supreme is a clause challenges and that's what the what the circuit in the sense and concurrence is as sort of intimated that it might and that's not at issue here a that's correct there is there any case that has allowed a due process claim in any court in the country to proceed by a political subdivision against a state not that i'm aware of your  so in terms of due process and your honor hit on this is that the the city was had the same due process rights as everyone else they weren't deprived of any that others had they had the right to file in the california court of appeal they elected not to do so i want to know does does a political subdivision have due process rights i mean based on your argument and what i or interpret some of the supreme court cases to suggest they don't have to process like they just don't have to process rights which is a little counterintuitive but but but it may be correct i mean they're arguing well we're a party to the case so therefore we should be treated as anyone else but there seems to be this precedent that that political subdivisions just don't have due process rights i agree that there's a tension in the law about this and i think it comes what we're talking about earlier about the the dual elements  federalism with state law and federal law on top of it and i think it it's because the split in subdivisions are creatures of the state and they can be abolished by the state and they can't  know and those their right to life so where where do they have life life liberty and property rights i've always been troubled by that too i think i think that's an issue for the courts and i think they've come down in different places and but i think south lake court chose as the grounds or not i'm wondering is it better to go on standing that receive better go on eleventh amendment because i don't see how you get past the eleventh amendment on the pleading as it stands i also don't see why they couldn't amend the name individuals well there's i think standing is is probably the best ground to go on and the firmest and south lake tahoe provides a ready avenue for that i also think there are problems with year eleven for amendment argument in not because it's different when a state subdivision is suing another state actor in terms of eleventh amendment and that's where the power mark ace comes in and that's where it holds that that states can't sue individual commissioners acting in their official capacity and that's at eleven o eight of that question that i asked mr kerry if we get past south lake tahoe and get the eleven amendment issue i think councils conceded he's got a problem but he indicates that we should be man for the district court to take a look at the leave question in the first instance since the district court never reached that what's your answer that my answer to that your honor is that they waive the argument below and to have a rematch they abandon the argument in their opening brief it in their papers but at the hearing they was not requested that leave to a man be granted on that basis and i'd like to i mean the district court in this is in the evidence your record at five states here the defects in the complaint concern the identity of the parties themselves in requesting leave them in the city only mention that it could allege new facts or add specificity to its allegations it didn't suggest it could change the identity of either party involved so it doesn't seem that the defects in the referencing the opposition and say that well any kind of proffered amendments that you've stated in your opposition papers didn't include a request to change the identity of the parties and so so  purely legal issue we can reach the eleventh amendment question ourselves that's correct your honor and then again as as noted they didn't raise it again in the opening brief here so him and then we've discussed the process and so it's not that it's not that san juan capistrano is being deprived of the process it's just that it has to occur in the state under the stablished law and the eleventh jurisprudence is the fact that they didn't appeal it and they left some process on the table and maybe this is what is going to be addressed on the merits but isn't that dispositive the due process claim even assuming we wanted to get past the standing and get past the eleventh amendment don't you just say well wait how can you claim a due process violation when you left process on the table yes your honor i  agree fundamentally in that make that makes sense to me but we actually decide that or would we have to remain that back to the district court for further consideration i think you would be entitled to decide that yourselves and i don't think that that needs to be determined  on a factual basis by the district court when we've held in south lake tahoe and subsequent cases that the the political subdivision is a standing question other courts have not agreed with that is there any reason to believe that intervening supreme court cases or any other cases have changed that analysis such that it shouldn't be a standing question i don't believe so your honor i i think it's the first question that the court should ask when it's addressing whether or not it has jurisdiction over it and standing i think is the appropriate first question and thinking of it in those lines doesn't offend the constitution to me or the jurisdiction of court the argument that the city has made here this morning is that they could have men the complaint to sue an individual defendant to get around the eleven men a problem there are two reasons why an amendment would be futile and should not be allowed the first is they've already waived it in the district as mr nolan explained and then when they brought it up the city did in sort of the last breath of its reply brief bring up the possibility of amendment here but they didn't explain why the district court was wrong to find that they forfeited the point so they forfeited for appeal as well but second amendment to sue commissioner picker or any other individual would be futile because the whole subject matter of this suit is barred by a very stupid kata and let me explain that i just have one minute in the utah construction case the u s supreme court held in one thousand nine hundred sixty six that administrative decisions that are judicial in character can have claim precludes of the fact and then twenty years later a university of tennessee versus eliot the supreme court explained that even  reviewed administrative agency decisions can have that same claim precludes of the fact and that's exactly what happened here the city declined to take advantage of the natural pathway that california allows for review of agency decisions  proceeding in the california court of appeal and potentially to the california supreme court and when they failed to take advantage of that opportunity the commission's decision became race to to cut and race judicata as you know bars not only the same claims but also other related claims that could have been brought but based in the same transaction what they're seeking to prove here is that the commission's decision wasn't supported by substantial evidence the commission got it wrong that's exactly what would have been litigated in the california courts of appeal had they sought to that because i i mean i don't know that we'll get through the first two issues but if we get to the merits why why do they not have a due process claim where they do not have a due process claim your honor because their claims are based on official capacity suit would be a suit against the state and therefore that is so the only not animate is in his an individual capacity yes your honor and as i've explained before they waive that in the district court where does on appeal and it's futile because  if you send it back to judge the district court he will find that there is no way that he addressed the issue about amending the complaint with regard to the eleventh amendment but he was talking about there was no way for us to amend the complaint to get around north lake tahoe he never got he if you look at his ruling he specifically never reached the eleven men case he only dealt with north lake tahoe and i think the easiest way to deal with that is to go back t as you asserted in the opposition because as the district court summed it up the city only mentions that it could add new facts or new allegations not that it would change the identity of the party being sued the court was dealing with the issue of north lake tahoe not the eleventh very similar ask them no one's address this but i just don't understand how you have a due process claim where you didn't try it out because your honor we have this is a federal right we have a separate federal claim we don't have to exercise our rights under the state so what you're saying you picked what you thought was the better for exactly but let me let me just say one thing since we've opened it up a little bit we had a very similar circumstance that the ninth circuit resolved with regard to th a case same exact problem same exact problem and the ninth circuit because the ninth circuit declined to dismiss our case against santa no free we were able to work out a that brought seven hundred seventy five million dollars to ratepayers because the ninth circuit understood that there is a major problem with the public utilities commission and you can read about it from the fires in san