ironically in this case eval younger at the time was the head district attorney in the county of los angeles fast forward to today my client the pellant steve cooley as a former  head of the district attorney's office in los angeles now is on the opposite end in that as a defense counsel in a criminal case now and not being afforded the younger abstention doctrine i don't understand how younger abstention is relevant here so younger abstention is about federal courts not interfering with a state court proceeding in what way did this interfere at all with the state court proceeding ok as you see from that  late july ten two thousand and seventeen order that was put out the day before the july eleventh two thousand and seventeen hearing the facts are laid out there was the civil action a criminal action came about it was a younger is about how a federal court cannot enjoying a state court from proceeding with a case there was no in joining the state court from proceeding with their case i don't understand yes there is your honor because the enjoining that took place here was the district judge imposing his plumeri junction ruling on a separate sovereign court which is the state criminal did court the federal court order the state court to do it ordered the counsel for defend it not to disseminate the documents and the videos which the state a g had given to  counsel for the defend that which is the same defendant in the civil case what was the federal court telling the state court not to do that the state court wanted to do it's allowing its prevent the criminal defense counsel to proceed with a case unfettered by what was happening to them what was happening i mean younger is about comedy between the relationship between the federal courts in the  in the federal government and state government it seems like you're trying to use younger to say something about the federal courts and individuals and their lawyer in in younger for instance it was about the free speech on the political government versus another government i haven't heard you say anything about the federal court against any aspect of the state government either the state court or the state prosecutor yes it is it's interfering you're kind of the defense counsel it's the private individual not the state yes but of the facts it goes through the fact that they were given by the attorney general the thumb drives the documents the only thing that they were told in the criminal case in the state court was to keep fourteen names fourteen witnesses names confidential which is standard practice in a state criminal case don't give up addresses or give out phone numbers they did and so that was given to them because as a criminal defendant he's entitled to use those documents and that evidence to explore witnesses and to find further evidence the interference by the federal court a different sovereign saying you know what you can not use in that court the documents that are given to you to defend your liberty that's a liberty saying that you needed to post them on the internet that the state prosecutor wanted you to post these documents on the internet and that was the conflict i'm not saying that or i'm not saying that what i'm saying is just like law enforcement on a robbery of a mini market they give the doctor they give the video out to news organizations why because they need to find witnesses and such for a prosecution here the federal court has interfered with the prosecution and the defense in the state court if i give you that i'd like to give you an example of how how this will unfold you now have two hundred thousand dollars in sanctions over these counsel in a criminal case they this is now going on for about a year what happens at the time of trial do you ask criminal defense attorneys to go over not in front of the judge who is going to dictate what evidence comes in what the jury sees you want him the  fence attorney the criminal defense attorney to go over to a federal court in a civil case you're going for beyond a reasonable doubt over to a preponderance court to a judge who's already found on a lower standard i really not understanding how any part of the government was affected here how younger abstention were time at federal courts any kind of attention doctor about the federal compared the state younger prosecution how any aspect of the state's prosecution or the state courts behavior anything about the state itself is affected i just really know it's affected because the because you're now preventing a criminal defendant subject to his liberty to use his documents use the documents that the state had given you're interfering you put a roadblock with tween what the what the state attorney general and case where abstention was applied because a defendant a private party in the state court might be restricted in some way i'm first i do not have that exact case that's why this case is so important because i was going to give you the example if they go to trial are they so go over to  federal court and say to a federal judge who has already decided things on the on the or is it on the issue of what are you going to use show me the documents how you going to use the documents such as he did the district court did in under the o s c hearing he has where when what did you do give up your whole defense and maybe you need to see all the state court courtroom or something i mean i  us there is a place in the his contempt order at page twenty that judge or instructs that judge white has to be the one who determines what violates the preliminary injunction in the context of his courtroom so to that extent the civil federal court is in this case tying the hands or deputising the state federal court to enforce an instruction of the assumed i don't know what was intended to be the opposite i thought it was intended to say if the state court needs this them as the court can tell you you can do things i thought well but at the same time the federal court has enjoined specifically in this contempt order the defendants the defendant from using materials that the state court has not expressed any and has specifically declined to object to that to the defendant using so what is in this to court not have an opportunity i may be out of the timeline wrong but i mean this court never did anything before all this played out in federal court right not in advance but it was invited to also and the attorney general invited the state criminal court to find the defendant in contempt in that court and he declined to do so for the inclusion of these materials in the demurrer but i want to move on to the points that i like to make with your permission may it please the court my client has been tried convicted and punished for contempt without due process or any proof i come for you today to ask you to reverse the contempt judgment  reassign this case to a judge whose impartiality is not in question the supreme court has observed many times over many decades that the contempt power is uniquely liable to abuse because it is so susceptible to abuse the supreme court and this court have consistently held that unless a contempt award on ambiguously meets the criteria for a civil penalty a party accused of contempt must be protected by the procedural safeguards that secure the rights of criminal defendants you ward in this case does not meet the criteria for either category of civil contempt penalty it is a flat unconditional fine for a one time past infraction intended to deter or expire it's not a fine because the money certainly is not being paid to the government it's the money that was ordered paid was paid over to a third party so leave it compensated for its losses that's true your honor we would submit that that only muddles the situation even further because it doesn't even squarely fit into any of the three categories because certainly the civil compensatory sanction on it but it's all it's trying to do it's not even trying to coerce any future compliance with anything it's just trying to compensate the third party for the harm that your clients caused it respectfully your honor in the order itself the judge is very clear that his primary purpose i'm quoting from his ultimate purpose and his primary task is precisely to deter future noncompliance he departs multiple times from the standards for civil compensatory of the d eparture when he says that it would if i give all the compensation that they spent it would be more than necessary to deter he actually lowers the fees it's that part of the discussion is in your benefit as i understand it because he says they spent all this money i'm only going to give importantly any departure from the standards for civil compensation and with the explicit purpose of deterrence turns this award into criminal penalty cases i think that case is that any departure from wholly remedial serves only the purposes of the complainant and is not intended as a deterrent to offenses against the public that the deterrent language in this case is ubiquitous he specifically uses it several times to depart from the standards for a complete civil compensatory award he declines to require that the claimed costs be proximately caused by confirmations actions which would he would have to do in a civil compensatory award he declined to determine what amount of attorney's fees was actually reasonable when they didn't when the judge didn't determine the actual amount of attorney's fees because determining them would have made them way higher than what the fuse were actually granted one instead the judge did is accept the fee amounts that you proposed from this laffey matrix saying while he did so that this is specifically not what he regards as the reasonable payment he's only getting from it because of a deterrent effect it's not the amount and it's not even specifically what he's saying about the war because he uses a lot of language related to civil coercion and this and this is very clearly not a civil coercive award because those are forward looking directing toward bringing some incident where is there anywhere where the judge mentions deterrence that is not in the part of the opinion where he's actually giving less just remedial compensation than would otherwise be don if he had granted the entire award yet he mentions not using the word deterrence but the purpose of the award being to prevent five to bring about compliance with the p i order going forward sorry on page two the purpose of the contempt sanctions is to encourage defendants and respondents to abide by the going forward the purpose of imposition of civil contempt sanction is to encourage defendants in respondents to adhere to the preliminary injunction going forward multiple multiple times he states that that is his reason for not abiding by very clear rules for civil compensatory will have disliked deterrence were there that i'm compliance there is no continued noncompliance in the sort there's no way that his purpose was to bring defendants into compliance because defendants were not out of compliance as soon as defendants heard that the court had any problem what they posted they pulled it down and mediately there was in fact at that hearing he was asked by mr frank to impose a civil coercive penalty five thousand dollars for each day that you leave it up and he declined to do so this is not a civil coercive award to the extent it is coercive it is a criminal  coercive deterrent award it is a backward looking one time fee for a complete act of contempt that is not tied to the actual costs incurred explicitly not tied to the actual costs incurred as a result of the conte  but the fact the matter is this court lacks jurisdiction because this is a classic civil sanction imposed for civil contempt of federal courts or to make three very quick points with respect to that issue first point it's a civil s or because the fees and costs compensate enough for the losses it sustained and the fees that were incurred in its behalf in responding directly to this content this report reviewed detailed records went line by line through those records and substantially reduce the award by fees and costs incurred as a direct result of contempt has never been considered criminal by any court and where the second point it's irrelevant that the district court in addition to compensating the have also had in mind a future to terence rushing up what the district court did not what it set not what its objective intent was not what its stated purposes are but what it did what it actually do in terms of affording relief to two now if in this situation as the bagwell case in the united states supreme court and in fact the court need look no further than its own decision in laws are versus ford motor company the district court in that case imposed sixty one thousand dollars in change in compensatory sanctions against a lawyer and his client they had violated motions in limine a in that case in rendering out toward the dishy court said i am rendering this award to vindicate this court's authority  think resolve this issue issue one is the petroleum proceedings case in the state of washington and the other is the cordage case the petroleum case explains that it's a fancy term congress of interest what does it mean but in essence it comes down to whether or not the lawyers are held jointly and severally liable for the contempt along with their clients ok so you think that we because we have not announced the rule at least in the explicit terms you've just described you think we should just say that if it's a lawyer and if you've been held jointly and severally liable with your client even if you're not actually representing the client in that case because that's what's different and jobs it you are you meet that test and you cannot appeal i mean i'm not going to say that's it the way it was phrased in the petroleum case was generally speaking the congress of interest test when the application of that's has comes down to whether or not the lawyers and the parties are held jointly and severally but generally speaking it's something something of a listening test finality is supposed to be a practical test under section twelve ninety one so for this particular case if we were to rule in your favor say in terms of why we held that the interest workroom grueling publicly say tell us tell us what we should write i appreciate that your honor thank you this situation here is that the lawyers and their clients where in your favor i'm asking you what would we say if we rule in your favor how would that holding gold because one apply just to your case but other cases that are in the situation so we have to craft a home  that we think is consistent with the law and that's why i'm asking you for the wording because it's unclear to me that that that the law at this point gold is foreign to our asking us to go allowing to appeal now would undermine the finality principles under section two hundred ninety one and encourage precisely the kind of piecemeal litigation that section two hundred ninety one was designed to avoid that's the basic situation because if they're allowed whether the question presented would be presented twice there is the legal test joint and several liability well i think they're the same thing because it's joint several liability if a situation were to you going to have to deal with this two separate times because it's very clear as  the action are attorneys is that the because the conduct that actually led mr cooley and the other gentleman to be held in contempt in theory could have been committed by anyone i don't have to be a lawyer i think that's right you're not i don't think it turns on whether or not their lawyers i think it's stronger because their lawyer ok so if this was just mr is it the why didn't you say his name yes your honor i could just as best friend who did this inclusion with you would take the same position i would take the same position your honor so what but you stressed that you knew you were stressing the fact that this was  confluence of interest test which which looks to the principles underlying twelve ninety one would come out the same way if these individuals were not mr two lines lower that they were his best friends and they did this and they were subject to the court's jurisdiction as of course they are and they were held jointly points of the petroleum case which says generally speaking the test is whether or not they are held jointly and severally liable that's what the petroleum case stands for that basic proposition i assume the reason for that rule is that when joint and several liabilities impose it it means that  underlying wrongdoing it's basically shared by both the party and the non party and so as you said if we're going to let the nonparty appeal now we're going to have to basically resolve the merits first for them and then after final judgment as well for the for the  section twelve ninety one and set of principles of the supreme court as articulated with respect to twelve ninety one finality avoiding piecemeal litigation with respect to those principles courts upheld in this type of situation that the members in the middle of the night he said explicitly that they were using the criminal case as a fig leaf to cover a public attack on the off all of those findings are subject to claire review he dismissed the various excuses not excuses so much as admissions of guilt as incredible i mean again all of those findings will be subject to a clearer view of good health so what's your response to opposing counsel observation that the judge was biased in this case same reason such to know how to has articulated with respect to the original motion that motion is tied to the defendant the actual parties in the federal cases appeal here right it wasn't filed by the of that issue you mention best friend versus a defense attorney in a criminal case with liberty taken away i assume that was taking it to the extreme but if we're going to use that analogy this or use the collusion in order to say that my clients that this is not final for them we might as well then add in the state a g s stagey gave them the immaterial not through the defendant giving it to him from what was it whatever was received or enjoins in the federal court so if you want to go collusion it goes all the way back which is ridiculous but i raise that that say they gave it to give it to my clients and you all the rest of the time  penalty not a civil one but even in the civil context immediately payable payable and because of being immediately payable is also immediately appealable whether it's in the civil or criminal context although response to the polls in councils position regarding the congruity of the parties i'm sorry our position about whether they can whether our client should be held liable for the actions of whether or not  between the among the parties the appeal should be allowed to go forward for all of them we're not like interests of obviously the co defendants and our clients are certainly aligned enough to justify appealing them together and so that it's not final enough for the part of the non party should not be allowed to appeal correct or if it's final enough for the opposite would also be true if it's not final for the parties decision by the court the final case on calendar for the day is federal trade commission vs consumer defense