of the issues is when you attack the constitutionality of a statute who is a party so i think there's a ninth circuit case you have to have state action so if we didn't name her as a judicial defendant we would have had the issue of private parties and we would have had what he may have known as a public good friend i'm just wondering what the  certain criteria the putting on the list is by judicial order issued by a court usually a superior court in california right yes i mean i just want  in her capacity as the head of the commission on judicial performance she creates the forms that regulate how effects aisha's leduc and obtains permission to file after being declared justice the opportunity to check one of those two boxes of third boxes allows for dialogue explaining why somebody has been declared vexatious may or may not file in the district don't need to form to have if i could just spend one more minute on this because because my problem with this is how it is she supposed to grant relief how was the chief justice supposed to prevent sapir court judges from declaring litigant because because i don't think the form is the problem it seems to me that the question is that there's a statute that provides for that type of a declaration by a superior court judge and i don't see how how the chief justice could prevent enforcement of that statute sure again you know our challenge is a constitutional challenge to the statute in terms of the parties listed  i'm not sure if that's necessarily the issue either we didn't ask or injunctive relief you know for the district court declare that the  is an article three case in controversy with the chief justice the issue that we have in filing this is challenging the statute to get around the procedural hurdle of a proper defendant judicial defendant we could've conceivably sued all the private parties and then had the issue of how those private parties are engaged in  state action so in order to avoid that we we sued her in her official capacity as the chair the chief you could name the judges i understand i think in the ninth circuit case of wolf vs strike then that issue came up as well and the court said and dismissed all the judicial defendants who are who are named but they said that you could sue the chief justice as a party to maintain the action and then also in that case they raise the issue of whether or not a judge is acting in a judicial capacity when they issue pre filing winters they didn't resolve it on that but they did then get to the issue that i'm trying to get to which official capacity and then in georgia versus walther they went on to discuss the issue of now of whether or not the challenge the constitutional challenge should be done on a rational filing fee cases rational review is the typical measure of of review what we've said in my we're trying to say in our case is that  this is distinguishable from will first charge because it involves like bodhi versus connecticut it involves those bodie factors who won a fundamental interest in the care companionship and custody of a chest of a child justifying getting permission well if i could riff on the bodie versus connecticut case that involved a couple that was seeking a divorce if one of those  individuals the husband or wife had been declared vexatious they first would have had to get permission to ask for a dissolution  you see the situation that we're in so if one of the differences they i found the stand bernie they didn't have the money to pay the fee so there was no way they could get the court and this is just a requirement you fond of a piece of paper have the money to pay an attorney they would have been subject to that say she's letting in statute what's particularly in cities about the vexatious litigant statute is that it indirectly is a fee filing case if ok they can get a lawyer that's another way they can but other way is to just file a piece of paper you know we know they know how to file because they found all these other cases per se so it's not like they don't know how to write english or five  twenty two thousand dollars the first time thirty three thousand the second time every time i've filled out the m c seven o two form after my printer rights were terminated every one of those has been den have not shown change circumstances so i've haven't seen my daughter in six years i can submit again and again and again and i have i could show you and in the records you probably will find dozens of requests and by my attorney i've hired an attorney she had to file the form and was also denied permission for a hearing so in other words if that initial custody ruling or visitation ruling judicial just the way it's played even now after gerardi saying that one is shielded from the vexatious litigant statute if they're represented here still it may be allowed in court but now they use another method to keep you from having a hearing under the case resolution program so once a parent is declared fixations they're essentially locked out of court unless they can afford an attorney but even with the way it's interpreted direct say she is living in statutes interpreted and applied it's invariably applied even against attorneys so even if you're represented see the issue but when a parent cannot afford three hundred fifty dollars an hour to pay an attorney then they have to file a form and the denied permission to get into court so in that sense a please the court patty leaf for defendants the chief justice and the administrative director of the courts the court should affirm this rift is no longer before us that's correct the district court found that the claims against the administrative director  you were alluding to that the chief justice was in fact a proper defendant and the claims against the chief justice of that point were not barred by sovereign immunity but in making that determination the panel's analysis was incomplete it simply looked at whether the relief sought was prospect of and whether the chief justice had been sued in his official capacity it did not at all and gauge in the analysis about whether there was the required connection to at that opinion and as i have mentioned did not engage in the the full analysis the council did because it's he's asked me to speak to a different point and it's my question as well we're bound by it so are you asking us to suggest  colleagues that we should take this on bonk or why wouldn't we be bound by it i'm suggesting that you're not bound by it because because it did not address the legal issue here which is whether the chief justice had a direct connection to enforcement of the statute  wasn't that issue in strength and i don't know why that was not addressed in the panel's ok but but i as a slightly different question i asked why wasn't that at issue it may not have been addressed by the panel but it doesn't mean that wasn't there wasn't a part of the analysis now that we got we may have come to a conclusion we may have jumped a step someplace in there but we've got a panel that's come to a conclusion that the chief justice can be sued in his capacity as the administrator under this statute so how do we how do we decide that he doesn't he doesn't get to be be sued as as an administrator without going into conflict with our prior decision i don't believe the decision would conflict because a decision by this panel finding that the chief justice does not have the required direct connection to enforcement would not the only thing alleged in the complaint regarding the chief justice is that she's the chair of the judicial council and that the judicial council has a responsibility to adopt rules and procedures that are consistent with the constitution  order to the chief justice to remove certain names from that west would the chief justice follow our order unconstitutional it may be it may be administratively possible for the chief justice to direct someone that someone's name be removed from the list but it would not be in conformance with the statute so if it were part of a ruling that the that the statute or unconstitutional then that may all work as a practical matter but in terms of sovereign immunity our our position is that it would not be appropriate because the chief justice is not really has no connection to the actual enforcement of the statute but if we would if we decide we're bound by strengthen can you could you go to the marriage yes if the panel decides that it is bound by strength and the claims are still barred because the statute survives rational basis review why is that rational basis review given his argument is that this is a parental right and that there are supreme court cases acknowledging that that's in title the heightened scrutiny yes the default rule  in terms of pre filing requirements for civil litigation are that those requirements receive rational basis review there have been limited exceptions made in which scrutiny has been applied in the family law context but those exceptions for very specific circumstances for in the body case for filing for divorce and in the end they'll be case for appealing the termination of parental rights and those are the only two instances in which the supreme court has found some form of heightened scrutiny can apply i think that your brief argues that this is in this circumstance because it's not a bar to the courthouse doors the right she was being infringed less significantly but why isn't the right itself entitle to heightened heightened scrutiny we're talking about the parent child relationship in the supreme court is certainly acknowledge that that's entitle to heightened scrutiny right if it's true that things right doesn't it yes but the but but in this instance the litigants any living in such a statute still has access to the courts in order to try to vindicate those rights right that's what i was just speaking to it seems to me your argument is that the right at issue is being infringed less significantly and i think much less significantly since there's still an ability to go in and file yes that and that is certainly that's an important factor under the cases in bodi there was no ability to file if you didn't pay the fee and they'll be there was no ability to pursue an appeal if you didn't pay the record preparation feet so in both those instances there was simply no way around it if you couldn't afford this is that to survive heightened scrutiny if we decide height it only applies to litigants who have previously been determined to have abused the court system in some manner and as as was discussed previously it is possible for a litigant to still file cases even after they've been put write but is it the same if it's the same standard i understood opposing counsel to say he was denied because because he hadn't shown a significant change in circumstances yes so so in evaluating whether the case has merit the judge would would look at whether there is any showing of  is not something that applies wholesale to all pro se litigants as i was saying it applies only to those who have been previously determined by a judge to have abused their access to the judicial system and used it to harass others and the showing that needs to be made in order to receive permission to file is is very similar to the the same showing that would need to be made in order for the litigation to to proceed and so for those reasons we think that the statute  know in terms of the will first strike when the case again we're making a general challenge we're not you know we sued the chief justice because we're not making a fixations then have to go through the hurdle or the bar of filling out these forms and as experience has shown all of us one should declare vic's ace's you're essentially denied any access to the court irrespective of an ongoing custody dispute a civil case is very different custody cases in visitation matters can go on for years and years and years it's not that these parents are being vexatious it's not that they're harassing people to say that a parent who wants to restore visitation or custody is harassing by filing prevails that occasion just seems to be vindictive and it seems to fail to distinguish between a civil litigant and a parent in a custody case half of whom were not even the ones who initiated the dissolution proceeding half of whom are vexatious because their representative on the other hand in an represented parent who has neither the knowledge or the ability files of these and then the represented parent can say hey all these five litigations within a seven year period the problem is in a in a civil suit does that mean forgive me but five litigations does that mean five motions to modify within a seven year period or what's well it take to get on the list in well in section well repeated a if they use the word repeated motions which is the way i think most parents are involved in vexatious alimony charges vexatious what happens is eventually in a in a parent dispute with custody which goes on for two or three years even the represented parent who will lose two or three or four would be considered vexatious but that parent because they are represented is shielded from a vexatious litigant motion by the fact of representation the unrepresented parent who filed just as many could be declared fixations so there's an equal protection aspect to this as well privileges immunity represented parent is a new name for being declared  the task force a big case that came down she noted in her outcome taskforce recommendations that money should be made available so a parent won't be a target not represented won't be a target of a vexatious litigant motion unfortunately there aren't funds and in the statute that she provided there were limited funds for there so that's that's what's at issue here in the sense you don't have the money to hire