good morning may please the court mr chief judge my name is jeff heard and i represent the honorable craig fife lee who is the presiding judge of south dakota's seventh judicial circuit sitting in rapid city i will address you first this morning followed by counsel for mr vargo followed by counsel for d s s this case is about the process used to wear and endangered child is taken into custody when an official takes custody on an emergency basis of a child in south dakota that child must either be returned within forty eight hours or a petition for temporary custody has to be filed in the hearing held judgment and an injunction we're asking the court to reverse the motion to dismiss to reverse the summary judgment to vacate the declaratory judgment and the injunction our brief posture case in for purposes of judge fife lee the case would be over because the motion to dismiss would be granted on the basis that he is not a policymaker which we believe is  dispositive of those issues against him in this case throughout the litigation of this case everyone has agreed that the district court needed to find the judge davis was a policymaker apple leaves the pla s agreed to that that was urged at the district court by judge davis counsel in the district court so found that the record then becomes a little confusing if someone's rights are violated under color of state law they can bring in one thousand nine hundred three action they centrally can do this in one of two ways the consumer the person who actually violated their rights for that person's conduct if they do that that conduct to respond out superior vicarious liability does not attach to the entity under the whose color of state law they were acting the local body alternatively or you can also do them together then they're not exclusive but the other way that can be done is to sue the actual body the local governing body but you can only do that one if you show that the constitutional deprivation was a part of an official policy of that body and you were stablished the official policy of that body by the acts of the final decision makers what in the cases are all called the policy maker well all along in this case it has been argued that judge davis and now judge fife lee were a policymaker at some point the record became a little confusing and they began to focus more on judge davis actual rulings however we look at it however we cut it there is one dispositive telling feature here though and that is judge fife lee was added to this case under rule twenty five rule twenty five of the federal rules of civil procedure only apply where the defendant is the or the party the party is the office in the person sitting in that office isn't the real party in interest so when that party changes you simply substitute in the new person who holds that office that's why judge fife lee is here in this case because of that he is only hearing that official capacity as the presiding judge of the seventh judicial circuit so if the presiding judge of the seventh judicial circuit is not the final policy maker of the offending policies then judge faithfully must be dismissed in the district courts denial of the motion to dismiss should be reversed so do we get to the should we get to the merits of questions like that or should this case go on jurisdictional questions like work or feldman and other and younger abstention principles we would prefer your honor that it be dealt with on the substantive reasons both rucker and younger could probably be cured if you found the right the right plaintive we are not unaware of obviously the effects of shelby county in this case  case we don't believe it's a proper lawsuit to be brought we also believe that there's a problem on the the due process arguments nowhere in the country has anyone ever held that the levels of protections provided for in the district courts declaratory judgment were required within forty eight hours of an emergency removal to be clear i believe all of those rights are required before you can terminate a parent's rights final that's not an issue here but the district court ordered that all of those rights council the right to confront and cross examine compulsory attendance of witnesses at the forty eight hour hearing some of these children are having their forty eight hour hearing within six hours of being picked up they do forty eight hour hearings on monday and thursday and they all come in within that time period  there statistics in the record showing the the speed of and give giving some sense of how quickly this happened the van hunnicutt affidavit which is attached to  policy yes ok you want to address that sure sure number one there's there's no case anywhere in the country that we're aware of that a judge has been determined to be a policymaker number two the reasons given for being a policymaker number one that he has the right to appoint to the abuse or neglect docket which of the colleagues on the seventh circuit are going to have that that is not that does not allow him to control the  rulings footnote twelve of the pember decision makes a pretty clear the right to hire and fire is not the same as the right to set employment policies he has all of them are equal constitutional judges each of them are equally responsible for the judicial decisions that are made in the procedures that are operated in their own court so what about judge davis's decisions in his own cases those policies no you know it has to be the official policy of the target entity it if it's only his own decisions then he becomes the entity which is not a policy maker case they wait a minute why isn't he the entit it and you think it was wrong to say we can look at the pub the judge's practices in his own courtroom as a policy because that's a do as i say that's a different got to paly him type case and then judge  court not against the judge the complaint says both but if it was against judge davis he should not have been dismissed he was dismissed out of the case simply because he ceased to be the presiding judge if it was you recall that i do what do you think about that i don't believe so they will bit late for that or it is and they sided to the soul to his lawsuit but the problem there is that the district court failed to identify the policy maker in this case he each judge within the circuit handles forty eight hour hearings and part of that also addresses some of the the fact that all of these are subject to review cheyenne river to try vs davis they did thank you may have please the court i'm rebecca man and i represent state's attorney bargo the district court erred when it assigned mon el liability to state's attorney bargo for failure to challenge and judge davis standing operating procedures the district court blended the concepts of official policy liability with practice and custom liability and it aired in two ways first it determined that judge davis's standard operating procedures became the official policy of the state attorney's office merely because of our goal feel to challenge him and second it determined that a custom and practice was created by acquiescing to a nother agency's standard operating procedure official policy liability requires a policy that is oficial adopted and promulgated by the municipality it requires a deliberate and conscious choice failure to challenge another agency's standard operating procedure does not adopt that standard operating procedure into an official policy in action does not create official policy it can create a practice or custom if it is permanent and well settled but practiced and cost of liability requires subordinate employees because that liability is derived from delegation of policy making authority to non policymaking employees in the city of st louis versus proper to the court reaffirmed that i mean it's a power he cannot evade liability simply by delegating its policy making authority to other employees instead practicing custom liability can attach if there is acquiescence to a longstanding practice or custom the policy maker in essence has delegated his authority to his law in them to engage in this widespread practice but the acquiescence must be to subordinate employees because there is no delegation to another agency of policy making authority and there's no control over another agency it makes sense that acquiescing to your subordinate employees can create custom and practice liability because you have control over your subordinates the policy maker can change how his employees are acting at any time by promulgating an official policy or prohibiting the widespread practice but a state attorney has no control over how a judge handles his hearings he cannot promulgated an official policy that's going to change the judge's practices he cannot prohibit the widespread practice of another agency to establish mon el liability i mean i mean it's a policy or custom a practice must be identified here there are no official policies or customer practices that have been identified as the state's attorney and he must be dismissed from the lawsuit thank you what do you think about this coleman case and the reasoning there that the police chief adopted to withstand a motion to dismiss and in the complaint there was an allegation that the final policy maker adopted the judge's ruling so in that case it was an official policy because he had formally adopted it in this case there is no formal adoption it's mere acquiescence you can't create an official policy through inaction but that's what exactly what the district court said and then it went on to say i mean if you acquiesce to somebody else it creates a custom and practice and that is not how custom practice liability is created it must be through your own subordinate employee landing are state officials eleventh amendment bar suit against the state each of these individuals have been sued in their fish to capacity and under normal circumstances a suit against and fleming but they still must show that there was official action taken pursuant to unconstitutional policy or custom that each of those officials was possessed final authority regarding the policy custom and that the unconstitutional policy or custom was the moving force behind the constitutional deprivation what happened in this case was but it way back when the complaint was filed the allegation core allegation was that each of the defendants was a policymaker that was contested throughout the case when the court ruled on the motion to dismiss that the court made the conclusion a determination that everyone was a policymaker policymaker framework comes under more now which applies to well as it is it based on a concept of acquiescence that they've made no decisions but they've accepted the operation of someone else's choice exactly what the court ruled what the court ultimately ruled was judge davis judge davis created six policies the court identified no custom policy or any official action that they were responsible for the cause any deprivation but what they said is because you did not challenge the judge in terms of the procedures in good morning your honors may please the court counsel my name is steven peeve are for the plaintiffs of pelleas the defendants race seven claims and i will try to cover all of them i know that the policy policymaker issue is the single most and contentious and i will spend most of my time on that fortunately three of the seven can be addressed in thirty seconds each before i do anything else however i must review the essential facts of the case all of them undisputed that the defendants are largely ignoring these facts explain why the district court did what it did this lawsuit was filed in two thousand and thirteen and we examined four years worth of child custody cases from two thousand and ten through two thousand and thirteen during those four years as the district court found the defendants removed eight hundred and twenty three indian children from their homes they then convened a hearing for the parents these forty eight hour hearings to determine whether the court would grant the state's petition to keep those children in custody or return them to their parents the state won one hundred percent of those hearings it would have been a miracle for a parent to have prevailed because all of those parents were denied rudimentary due process they received none of the procedures this court health if the years ago and now staker are mandatory in child custody cases they were not allowed to see the petition accusing them of abuse and neglect they were not allowed to see the equip affidavit that contained the factual allegations against them they were not allowed to present evidence they were not allowed to confront the caseworker who signed the affidavit and finally the judge then made a decision based upon that ex parte evidence here are two more facts that i simply must raise at the outset outset first because the to protect indian children indian families and indian tribes and the hearings that defendants conducted were violated everything that it was stance for second the district court convened a remedies hearing three years after the suit was filed in august two thousand and sixteen during that hearing defendant virgos deputy roxanne erickson and ned and this is seventeen months after the summary judgment decision that parents were not being given the mandatory due process procedures defendant vargo in fact admitted an testified in that hearing that he saw no reason to provide any of those procedures for instance i asked mr vargo quote do you believe that parents whether indian or non india hav constitutional right to receive the petition prior to the forty eight hour hearing in answer no i do not believe that rises to a level of constant of a constitutional question no wonder the district court issued the remedies that dead among the states that have tribes were equal would be applicable have there been any circuit decision as to entitlement of parents to that level of process  every state provides procedures that south dakota does or were not provided here even under south dakota law well i guess what i'm getting at is if you if we were to affirm this judgment does that mean that the laws of all the other six states are unconstitutional because they don't provide for a hearing within forty eight hours that has all of these procedures i don't know of a single other state's laws that allow or condone the procedures that applied here and neither does south dakota now that's not the question ok i'm not asking whether the other laws condone the procedures that were used here the dish court has ordered that certain procedures be adopted here and the answer as i read these other states laws they would not be in compliance with this order and i don't know about that or i don't of any other state states every other state have hearing within forty eight hours that has all the procedures that were ordered by the judge here or would this require every other state in our circuit to change their laws to comply with what the district court here says is the constitutionally required critically important judge politician is that the district court only relied upon state procedure in south dakota it's forty  constitutionalized the forty eight hours and said the constitution requires this hearing to be within forty eight hours your honor that's not the way i read the decision with all due respect he used the south dakota law that already requires forty eight hours in fact the indian child welfare act has a ten day well then why isn't the order just wrong because the constitution doesn't and this indian law don't require it to be within forty eight hours it requires it to be done within say ten days the order is entirely correct because under south dakota law the first hearing is in forty eight hours yeah but of course the incident doesn't require that that hearing have all the procedures because it has doesn't have to be done that quickly then why should the state law dictate when the procedures are implemented the only thing that the district court did is to say when ever this state hold first hearing these and this is what the court said the eighth circuit said and i'll say to her as well these are the procedures that must be for vida and that's all it said and that is consistent with every other state's laws when you have your first hearing these are the procedures that must be provide you want to address the question whether you sued the correct judge in the correct capacity and yes a yes it looks like i better get to that right away it's an important question yes what i'd like to do since all of the defendants  liability under section one thousand eighty three with respect to policy makers and malone was authored by chief judge smith and judge murphy was on that panel the court defined policy for purposes final authority regarding such matters next the cord then defined custom as being among other things quote the existence of a continuing widespread persistent pattern of unconstitutional what what makes this issue so straightforward is that mr vargo admits that he and he alone created both of the policies that were challenging he admits that he alone deliberate choice not to give parents in the forty eight hour hearings a copy of the petition for temporary custody the p t c that he was submitting to the court accusing those parents of abuse and another four months this was a persistent pattern of unconstitutional misconduct mr mr vargas second unconstitutional policy was is no iqua p t c policy here again the facts are not in dispute because he admits them that in may fourteen he suddenly changed his mind about his first policy and said that parents could have the p t c after all but the p t c is that he then gave them were constitutionally that both of mr vargas policies violated the cross although most of our goals policies i'm sorry that the court actually used the terminology mr vargo is policy yes yes he identified those policies and said that will not question was did the court say it identify them as mr vargas policies yes so i mean i i'm not sure if that's the precise language that's my question oh  but there's no question that the district court identified those policies as a mist of argos policies well now the judge course could have ordered the petition be furnished to the parents the position in court and it's wrong and the judge jury would rule to the contrary and say it must be done differently that might be true rhonda with respect to activities occurring during the hearing but this is something that should have occurred prior to the hearing and is now done prior to the hearing i mean they have implemented all of the district court's orders and things are going to fine i mean we've had this over a year now close to two years and things are going great and now mr vargo gives the parents a copy of the petition beforehand d s s gives the david beforehand  egg knowledge in fact this is one of the complaints we have against judge davis is that he should have ensured that these defendants did do that but it was their responsibility to do it they're the only ones who create those documents and they were handing them to the court beforehand but withholding them from the parents so everything's going fine now i'm sorry everything's going fine now get in your head you know i attended some of those hearings not too long ago and there were ten hearings in one day they last maybe fifteen twenty minutes on average the state calls one witness the judge makes a decision everything is going fine except for the fact that during the hearing judge judge prosecutor vargo sad that in my opinion there was nothing unconstitutional to begin with and  he sees nothing wrong with what happened and and we're obviously concerned that things will go back to the way they work i mean that was the quote that i read as as one example that he saw nothing wrong with what he was doing all right so who is it mr vargas making policy for anything county and indeed in his reply brief and this is one of the things that you could understand why the  had such consternation is that he filed a motion to reconsider claiming well you didn't identify me as a county employee and judge i can says well that borders on affirming us i said that you're the state's attorney and under south dakota statutory law and decisional law a state's attorney can only be a county employee he admits that in his reply brief mr barr and i have the quote there is no dispute this is on page eighteen of his reply brief there is no dispute that the states that state's attorney vargo is a county official it is these issues and he representing the state of south dakota in the child welfare act that's right that's right as a county official and he doesn't deny that that county officials do that all the time they represent the state in a number of matters but they don't morph into being a state employee you say state employee but it is in the more complicated and mcmillian cases to whether the person is considered a state or county policymaker i mean in that case as i understand it the sheriff i think it was a sheriff yes salary was paid locally elected locally but the court still said he was a state official for purposes of that litigation so i think it's a little more complicated than just saying well he's a county employee and therefore he's a county official the reason why it's not complicated here is that in the millen this official was claiming to be a state employee he said no i may be a county employee but in this instance i was acting as a state official they're not doing that and and they can't do that they know they can't do that and they're not doing it there's all the notes the argument about what are we arguing about that you don't understand either well i am you're i think he's taken the position that he was a state official he's not so what is the appealing man in that on that point and that's why did you viken said this borders on the ah come back because i this is critically important i thought so where you waited till last two minutes but go ahead first and foremost judge five flea is attempting to raise an issue on appeal that he did not raised in the district court at no time did judge five fully claim that he personally was not a policymaker the only argue and he raised this in his reply brief he claims in his reply brief on page five the district court erred in refusing to dismiss judge five flea judge five we did not seek dismissal he did not seek summary judgment the only argument that we have ever written briefs and the only argument that the district court ever addressed was whether a presiding judge of the seventh circuit is a policymaker now in this court he comes in and says i personally i'm not a policymaker i submitted at the last minute or yesterday a rule twenty eight j letter  is a policymaker who has taken over the position of his predecessor and what those cases what policies are set by the presiding judge and i think that's that's the that's one of the issues that's before us now and you say you did argue the only i think you just said the only thing you ever argued was that the presiding judge was a power yes that's right off the presiding judge assigns the cases and so forth that's a policy i suppose but how does that get you to the policies of the several individual judges or the court room practices of the several individual judges and this is under state law it's section twelve arrangement of cases including child custody cases it i would like to think of those the judge down the hall says i don't agree with the way judge davis has been doing it and the way judge viken thinks it ought to be done and as the hearings that way are you saying that that judges forbidden to do it that way because davis or fife lee prefers a different approach what i am saying iran are close to that but we have you know we have to add this if something is constitutionally required if the i'll go out on a limb here i would like to think the chief judge smith if he learned that panels on this court were only permitting the appellant's to argue and never the a pelleas and that is decisions from courts only reached one side or another he would say that is not proper policy we're not deciding that but i wouldn't be able to overrule panels your remedy would be the supreme court it under south dakota law however and this that's the critical difference under south dakota law the presiding judge does have a duty to ensure the orderly completion of cases and well it's a quite a ways from saying the orderly completion you do or feel that he does not have that authority and this is what the district court struggled with and the court said if this remedy isn't effective i am prepared to issue a broader remedy with respect to each individual judge the court clearly found that these practices were unconstitutional and law as he should have to identify who that person is in charge of ensuring the orderly handling of these cases at most or describes the time in which children are actually returned first the all sides are case that had to do with what are the requirements for a terminations not afforded our initial emergency hearing and in fact the court in that case this court adopted the district court decision in total and it said there is a difference in the procedures that are required on the initial determination then there are on or on the initial emergency removal than there are on amendment but what it says in that case but the district court and the appellate court held that a probable cause determination requires confrontation appointment of counsel cross examination in compulsory attendance of witnesses in the supreme court said no it doesn't so apple leaves have got to be able to explain why it is more important why the state has a lower interest in protecting endangered children then it does in pretrial detention of of criminal defen process requirements the fact that south dakota has chosen to have a forty eight hour hearing is of no constitutional importance when it comes to due process the district court's decision that that forty eight hour excuse me that forty eight hour hearing had to contain all of these has now constitutionalized that for the entire circuit should you affirm it is certainly constitutionalized it within the district of south dakota at this point the the other problem with the argument is that they i think they probably are now saying they approached this wrong the district courts could have said i mean nor in the forty eight hour hearing but i think your advisory hearing is too far down the road i think your dispositional hearing is too far down the road so do your forty eight hour hearing the way you want but i think you have to get to these constitutional levels earlier than you are that's not the pla that's not what the district court decided or the judges and in the circuit still taking the position that there's no need for disclosure of the petition or the affidavit in those sorts of things that's a little bit of a mischaracter possible then the document over to the other side yes wasn't logistically possible before for some reason no it wasn't about possibility art about just handing it back you meant to the parent right and it wasn't about the possibility of it it had to do with more along the function they haven't they just yes they're complying with the declaratory judgment you'll still find that that hasn't changed the outcome of these hearings the most of the people are not taking advantage of the hearings because it's too early in the process they don't want to put their client under oath within forty eight hours because so many of these counts includes tension of detention beyond forty eight hours and still one hundred percent i guess i don't know that specific to to stick but before i came up here i checked with my client and the broad statement was it has not led to any change in the outcome of any of these cases or what's the significance of that because under  matthews you only impose new burdens on a court when you find that there's a benefit to be gained from it well it's not really in the record i suppose whether it is not mr her thank you very much what wishes to thank counsel for all the parties for your presence in the arguments you've provided to the court this morning the briefing that you've submitted to a very difficult case and we will take it seriously as we do them all