declare that a guardian ad litem appointed by a federal district court has an absolute right to remove a state criminal case under section fourteen forty two the federal  court if the criminal case arises from acts performed by those guarding the line in their capacity ok but this is this is grandma she objects the kids she plays no contest to what and serves an enterable function of the judicial process in fact they are there to protect the interests of the minor or incompetent person in all stages of the litigation and in fact  duty the source of that duty actually derives from the judge's duty so when the kids now my understanding is that the kids have have no longer in the state judge to ensure that the incompetent person before them is adequately represented in the litigation that i read now there's a guardian ad litum under the federal statute have children no then there's no indication that clay was exercising any of the duties of a guardian ad litem when she spirited away the children well i think in custody of them right she wasn't defending their rights in court she wasn't writing any declarations she wasn't entering any orders she was fearing in court she wasn't counting for judgment call based on the situation at that time i don't think that there's any indication in the record that she intended to waive what she did today was a federal defense of the case which was  actions that she actually the children were released to her pursuant to a state court order so really in essence all she was doing was litigating this case against orange county based on views that it happened to physical custody of the children well and of the child standing statute is very broad in terms of the kind of conduct that would constitute interference with the physical custodial rights of a child it says withholding concealing secreting so in essence i don't appear for deposition because the guardian ad litem can't be there or guarding the item could be somehow withholding the children because you must remember that it's the social services agency that was a party in the underlying civil case and so any conduct with respect to the civil litigation and the interaction of those parties during the course of the civil litigation could actually serve as a basis is let's talk about facts is there other any facts in this case which show that mrs clay was taking the children to a deposition or to any court function or to any hearing when she was accused of child stealing the claim underlying claim for child stealing  describes a period of time of over a year it's not as one incident occurred where she ran off on trial it's a complaint actually encompasses the entire time period in which the civil case was pending we're not talking about on january thirteenth she ran away with the children that's not what it is it just simply says that between a january thirteenth the one year and you know march of the nullify that order how would you do that well we have no we have no do you couldn't appeal directly to the ninth circuit from a from a state court conviction to your correct but  correct but if they remain and order was vacated the removal federal officer removal statute does have an automatic stay provision in it which says that upon the filing of a notice of removal the state court may proceed except they may not enter a judgment through judgment has not been injured in this case well from the record in at least the documents that i've seen in the case i haven't seen actual physical judgment i don't know we could construe what is well not entirely well i mean we can't do that well it would not be a situation where she is now no longer we would have you find that she wasn't properly convicted of trial stealing in order to grant your appeal correct and you can't do that she couldn't no judgment in the state court could have ever been entered if it wasn't properly remained i guess my  contendere conviction was put in to grant your your relief we would have to violate heck versus humphrey plain and simple well i don't entirely agree but i think that if we did not construct that statute in that good morning morning may please the court i'm john maxfield i represent i'm a deputy district attorney for the county of orange representing the people of the state of california in this deal i think the court has pointed out a few of the problems with this appeal our position is the appeal is now moot given the no contest plea that was entered into state court effectively she's entered a plea to what the state court reduced her charges down from felonies to misdemeanors she's been sentenced to three hundred  sixty four days in jail she was given three credit for three hundred sixty four days in jail she is her appellate rights to that plea have now expired and the statutory mechanism for her to withdraw her plea has now expired and there's no good cause so in effect to answer the court's question what would happen if you were to remanded at this point in my opinion the only thing left to do for a district court would be to sentence or but she's already been sentenced and what's the difference now is you sure of the sentence correct so the only thing you could do at this point is send it back to the district court and then the district court can't get rid of the so now you're left with what entering judgment which has already been entered so in that sense this this appeal has is moot based upon her but effective waiver  i don't think the district court could i thinking that that's the only state possible scenario yes correct so there's nothing left for the district court to do that would be their very best case scenario i mean  right that and i don't i don't purport to know whether it would fall within but it would clearly be a collateral attack correct and it would have to be done there yes and i think in this particular circumstance given the record that would be herculean t best for them to be able to accomplish that but if i may i'll just briefly address the merits of the appeal any way the district court was correct in remanding this matter back to state court regardless of how this court were to interpret whether or not a guardian ad litum actually qualifies as a federal officer under the removal statute the bottom line in this case was the defendant completely failed to show a causal nexus between stealing the children and her duties as a guardian ad litum and i think the court has pointed that out moreover the defend in this particular case completely failed before the district court to give any kind of federal defense or any kind of official immunity that the things that she did in other words what was a federal defense to stealing these kids there isn't one and so no matter what this court were to decide if it gets to the merits with respect to the guardian ad litum being a federal officer she lose our position is that a guardian ad litum is not a federal officer pursuant to the removal statute i do know that it's interesting that in paragraph three of fourteen forty two there is no language with respect to acting under that falls under paragraph one when it deals with agencies federal agencies federal officers who work for federal agencies but it's interesting in the court context that language doesn't exist i addressed both in my moving papers and i don't want to bore the court further with that but our position is that a guardian ad litum is not like a judge a bailiff a marshal or a court clerk and they don't have those roles the guardian ad litum stands in the shoes of the minor that's the guardian's role the guardian's role is to effectuate litigation and protect the rights on behalf of the minor now the guardian is an important integral part of that case i'm not disputing that but it isn't the judge acting through the guardian it is the guardian acting independent subject to the court's review just like any attorney in reality is subject to the court's review anything that i do here is subject to your view and if you open the door to say well a guardian ad litum is an officer of the court then is an attorney ad li or is a court appointed expert so for purposes of federal removal jurisdiction we simply don't believe that a guardian ad litum qualifies and i would just point out that a guardian is also a lot different than a receiver a receiver is indifferent a receiver is just there to monitor the assets during the pendency of the litigation but a receiver is not a part of the litigation a guardian ad litum is very much part of the law part of the litigation and therefore does not qualify as an officer of the court for purposes of the removal statute i also like to point make another point with respect to the reply brief in this case what the defendant is asking this court to do is to liberate liberally construe fourteen forty two and look at it in a liberal setting and our position with respect to that your or your honour's is that the court should apply a stricter standard particularly as it relates to criminal matters and that is i ask you to fall of the herren decision where it said removal statutes are strictly construed against removal and that's how this should be particularly in a criminal statute or in a criminal case excuse me and the reason i point to that is in mesa when the supreme court was examining the claims by the two postal workers that were subject to criminal liability they made this comment they said i'm going to quote it quote accordingly the liberal pleading sufficient to allege and an official immunity defense which we permitted and willingham which is the case that the defendant cites for this liberal construction  to removal of a prosecution before us today why because it's a criminal matter and later on the supreme court emphasized this point quote under our federal system it goes without saying that preventing and dealing with crime is much more the business of the states than it is of the federal government because the regulation of crime is preeminently a matter for the states we have identified a strong judicial policy against federal interference with st is a matter of first impression i couldn't find you right ok good fortunately yes and it is a matter of first impression so the point that i would like to make is no matter what i'll go back she didn't establish all of the elements that were necessary for federal removal but to start with this court really ought examine is how is it going to interpret fourteen forty two is it going to give a liberal construction in a criminal setting or is it going to give a narrow construction in a criminal setting our position is the court should look at it narrowly and the reason the court should look at it narrowly is it seems contradictory to have a strong judicial preference to keep crimes in state court and then of duties as close to the job yes that's precisely the issue and here a guardian ad litem does not and i think i'm not saying that that couldn't be a circumstance but that's not the circumstance in this case the guardian litum in this case the defendant did not have custody of children and the fact that someone is appointed guardian ad litum does not automatically render them a guardian for all purposes and less court has other questions  you thank you very much for your time thank before us that's correct but more to just address one of your issues i would also draw the court's attention to twenty five u s c thirty five zero nine which provides for immunity for guarding the line them s appointed and chow victim criminal cases they have immunity from both civil and criminal liability it would be axiomatic not to extend that same protection and immunities to garden line and point for  victims in civil cases if this court were to define guarding the line in fine and as having the right to remove it ms hunter certainly would have many remedies available to her through defense the state court was incompetent as a foreigner to allow her to waive anything and there's certainly no expressed waiver that she waived her right to assert supremacy clause immunity as a federal offense and that would th and i thank you both for your argument this matter will stand submitted