i'll although the race yet there seems to be a younger abstention issue lurking here i assume there is a state court in illinois or florida that is presiding over toby's probation correct well on this record your honor it's it's difficult to determine because of the actions who is monitoring this case for example what i'm specifically referring to is the florida judge who dismissed the florida violation of probation and pointed out that the one hundred six days that mr toby spent in a florida jail was the result of procedural complications as we know the record reflex that there were at least really why didn't he received a prompt hearing if they're going to effectively revoke his probation either here or in florida each tell you what i thought a mind question is about this i am proceedings that have been under way do you want do you see where i'm coming from well and that sort of but i think that there are no state court proceedings underway since two thousand and fifteen or fourteen i believe all there is is the probation itself from florida which which goes until twenty twenty i believe the that he can go to the court in florida right if they still have his probation well the probation was transferred to lake county illinois i do under the interstate right to the court in an illinois statute which said that he was entitle to have bail none of that occurred if you look at the complaint mr mr toby was not brought personally before a judge from the time he was taken to florida well it's a it's not really a false arrest case that the as there's some interesting language in a case that was mentioned to your honor's earlier in a previous in the first argument which is that package him versus north carolina case in that particular case justice kennedy says that the court has a particular concern for people like mr toby who have served their time and are now in these probationary situations and in this particular case mr told me was told when he started his probation period that he had to both attend counseling sessions and he had participate in group counseling and he had to take polygraphs the important part about that is that if you don't pass the polygraphs which are administered in house you don't ever get out of counseling and you can have your probation revoked well i'd like to toward what and i think that what we want to do here is is say that you can't treat a probationer the way that mr toby was treated in this particular case the complaint shows that mr toby was under the complete control of one of the defendants his probation officer that's the nature of probation but but some of the requirements including her actions in spite of the fact that  additional order allowing us to toby to visit his daughter and grandchild in oregon suddenly the probation officer who had previously granted requests to travel for mr told me she said she didn't have jurisdiction ignoring the it's so your honor if if if if you believe that we should be remained it to state court on these claims that's fine but i don't believe a state court is going to consider  federal due process issues maybe they will i don't know in this particular case we believed that a federal court was the appropriate forum for the nature of the claims that are presented  you know this was the actions against mr tobin the timeline shows that the harassment increased noticeably once his attorney made the comment that he was going to for  as part of the sex offender treatment and probate schenn he refused to turn off the internet access on his phone and said his lawyers told him he report one test was inconclusive another test he passed a basic test and as soon as he had an independent lie detector service it minister him a series of lie detector tests in october of two thousand and fourteen or thirteen he was he passed all those tests and thus raising the question is there is there some sort of benefit to lake county by having  the sexual registers sexually registered persons attend counseling which they pay for forty dollars where mr toby's counseling was doubled as a result of signing this behavioral agreement under duress at the manatee county jail in manatee florida and so that instead of paying forty dollars a week his two sessions crossing now eighty dollars a week right to counsel these these are all matters for your clients criminal counts of the take up with his probation chant or at the state court to the extent that you're seeking damages and clearly the claims are time barred arrest and detention that you're challenging occurred in the spring of two thousand and thirteen you didn't file suit in till mid two thousand and sixteen more than a year after the expiration of the two year statute of limitations and that was one of the many grounds for the dismissal and in this case in addition you've sued the probation agent and the state's attorney who were responsible for your client's case here in illinois and they clearly have immunity from damages liability well we challenge both whether tolling he knew why he was arrested and for what misconduct because he was told and his criminal defense attorney was told and it is information that is available in the public record contradict that the public record judge i attempted to obtain a transcript of those that public record deals with a judge who's never used before under a different case number that was produced without any  knowledge or authentication by the other so there consultation with his criminal defense lawyer before the filing of this complaint did you consult with the criminal defense lawyer for your client before filing this complaint he was contacted yes and you were advised of his proceedings in state court he did not he did not state that he was in court with mr toby in state court before he was transported florida that's that's as much as i know about that did you do a search of criminal files and i don't i and i personally went to lake county and asked for every file under the name of edward toby those files that you are referring to your honor did not and were not produced by the clerk perhaps it's be it the explanation could be it's a different case number but how would i know a different case number if you told me didn't know a different case number and i attempted to order transcripts to see what actually happened and even know gagnon versus scarpelli says that you're supposed to have a full hearing before such a transfer there is no court reporting record so forgive me for interrupting you but really we need to ask you about younger abstention and the defense didn't raise it is that because you thought it didn't wrongful conduct a legit wrongful conduct by the probation office in the state's attorney in whatever state who are presides over as per probation at this point i am and you know i'm just at a loss why younger never came up i apologize your honor did not occur to me in this conduct context i do apologize however the court is correct in one case in the sense that these probation terminated in illinois on march sixth of two thousand and fifteen he is still on probation in florida and will be until two thousand and thirty two which is what a court found when he was recently before the court asking to modify his probation for purposes of engaging in unsupervised contact with minors and that was part of the record in this case at eleven to the exhibits to the motion of the smith said i so after being told for example the state's attorney near hime when he corresponded with mr smith corresponded with a state's attorney near hime in october of two thousand and fifteen that he should take his inquiries elsewhere because illinois last year stiction over mr tobin because he was at that time off probation that is what they then did they then went back to florida to a florida court and asked for relief as it related to their desire to have someone supervise about this because they tach this court's order to their complaint therefore giving them a reason to go and look at the docket in the old nine c up and ten c f case to see exactly what happened if they had they would have seen that mr toby's probation monitoring not his probation but his probation monitoring for purposes of the florida cases was transferred to illinois because he had made a request that he be allowed to live in illinois and when he made that request to be allowed to live in illinois he signed an application that his monitoring be transferred and he agreed to waive extradition at that time to be sent back to florida so as part of the monitoring process in illinois it comes to light in early two thousand and thirteen at a regular probation check which the court in florida had authorized under its own orders that mr toby it comes to light has internet service on his phone mr toby's complaint pleads this he doesn't deny it it comes to their attention that that is the case now naturally because mr bugliosi is only supervising the probation for florida she reports this presumably to  lansing lansing is as the court would see in the exhibits to the motion to dismiss the probation officer that went before a florida judge on april eighteenth based on an affidavit that he prepared and that florida judge issued a warrant for toby's arrest and it was based upon information discovered by the probation officer acting in l a county in illinois and shared because presumably because of the compact that mr toby is allowed to live here under at the good grace of before the court of course that information is going to be shared this is this or this court before the court still monitors him as the judge in florida found in december of fifteen when they were before the court at that time asking for relief again to have contact with minors on a supervised base the court noted in its order essentially and by the way he's on probation till two thousand and thirty two and the information sharing is not just permissive it's mandatory as i understand the legal regime under the compact yes it's absolutely mandatory and mr toby asked for and was granted the relief that he wanted which is to live here  so they were only doing their jobs monitoring him and reporting as as required so it's our position obviously that the court properly granted our are probably granted our motion to dismiss and consider the public records which are the exhibits the records are available to anyone who would look for them and what we know is from the complaint that again h one n h two to the complaint show that mr toby and his lawyers were aware of these court proceedings they go through at great length discussing how he was originally placed on probation in his complaint and so then it is confounding and indeed it's our position inexcusable that they did not discover this florida war  particularly when the order the attacks their complaint says florida warrant so for this reason they should have known to go look for when they did his lawyers would have found allegations that they plead in their own complaint which is that not only did he have cell phone service he shouldn't pad but that he refused to discuss sign a behavioral contract that for therapeutic purposes obviously a probation officer who goes wanted him to sign presumably to gain his investment in his treatment but as a matter of the law she didn't have to ask his permission there was no commission whatsoever required she could simply have ordered him to do that because that is what his order of supporters of sex offender probation in his court a felony case said he must do he must follow the orders of his probation officer he did not do that he argument here and and the issue that we take with the fact that all of this information that's publicly available from sitting behind a computer to look for it is information that is the picture that should have been completed by mr toby's attorneys i understand that his attorneys talk to him but there is an obligation to do more clearly they have this order here that reference is a florida warrant they should have gone out and found the warrant and when they did they would see the allegations they allege in their complaint is the basis for it they would also see had they gone to the clerk's office and not asked to see his criminal file which they saw fit the only one c f file had they done a computer search at the lake county courthouse or online sitting behind a desk somewhere with internet service they would have been able to locate mr toby's a name in the clerk of the circuit court records in lake county once they had done that they would know that the thirteen m r matter that we reference is a publicly available record to anyone we attach certified public records that reflect that mr can you keep us was an open court on two to three occasions with mr toby before judge raymond collins which is the proper process for how for an extradition warrant is handled in illinois court miscellaneous remedy cases opened it is processed and mr toby was before the court on both of those occasions with mr nikita's your honor asked a question of this motion for sanctions at the trial court level after we had filed that i had asked him personally at any time if he had spoken to one of attorneys for had any written communication with them about the allegations of this complaint because frankly it was very peculiar to us to allege a kidnapping narrative from a jail of all places about what had occurred to mr toby and mr nikita's told me that no he had not spoken to either of mr toby's attorneys in this case at that time i cannot tell you obviously what happened later because i did not ask again but it is obviously a brief concern to us that the may of of the year that we filed our motion for sanctions was the same month but after we had filed our motion to dismiss they have what i believe that's twenty sixteen your honor it's been a year since the filing so because this picture that was being painted which was in comprehensible it simply did not hold together it did not make sense it was not cogent in any way so we then presumably did what anyone could do which is coach simply to the public records of the manatee county clerk the circuit courts office and they are exceptionally well laid out you go to that website and you can click on an icon that sends you to a f file that you can then print right then or if it contains biographical information wait thirty minutes or so and then be sent a copy by email of that so once we did that based upon the orders attached to the compl observations that the plaintiff had cited some facts he cited things that were wrong the parties would duty of candor to the tribunals and to do a proper investigation that goes beyond merely talking to one party's client and what's clear here it's clear from the argument this morning and it's clear is that unfortunately that did not occur and it is sanctionable and considerable resources have been dedicated by our office to defend the lawsuit at the trial level below and here in order to prepare for this argument today and we would ask the court if it believes it to be appropriate to sanction the plaintiff and his attorneys for use of the court's resources and our time the public records in florida also show that mr toby was represented by counsel there and had a process absolutely it showed that ms paul check that he was taken from the thirteen r records which are certified public records show that he was taken by a transport agency from florida based on its warrant they coordinated that they sent that to the sheriff's department in lake county lake county  a motion that said his appearance was waived by mr toby's personal appearance was waived for future court appearances that is part of the public record that we provided so she would be acting on his behalf come into court for him as he directed but that his appearance physically in court would not be required and that is also something that she filed with the florida court that's file stamped it's part of the docket on our motion to dismiss the record at eleven to part of all the public record exhibits that we have so to the extent that mr toby was not transferred back to illinois to address the petition to revoke filed by ms stanton alleging these same then move forward with extradition proceedings and the record we provided because it is a public record what's held by the state's attorney according to the nelson versus kendall case those are public records they are available proceeding so we provided them and it shows a cordial exchange in a coordinated effort to get mr toby back to illinois to face is p t r and then after that according to the order and each one that he attaches to his complaint would then mr toby be brought back to florida as appropriate as the order states so it's always been acting as the agent of the florida courts because of the waiver that was signed by mr toby he asked to be part of the compact he said that he here in illinois at the good graces of the of of the florida court based upon his desire to be here in his promise that he will obey that court's orders that is the only court now that has jurisdiction over him accordingly or are based upon the deficiencies in the complaint filed by the complaint the plaintiff and the narrative we are asking the court respectfully to find that the trial court did not give due consideration to our motion for sanctions and asked the court sanction mr toby and his  here in federal court as well as at the trial level thank you do you think you should be sanctioned for not bringing younger up your honor i apologize do you think you have in any the trial level we did in our motion to dismiss reference and that the name escapes me i apologize a doctrine which asks for the plaintiff to do as you request which is to go back and to seek relief from the state court in granting our motion to dismiss the trial court did not address that at all and it is a again a two name dr and i do apologize but we did raise it in our motion to dismiss  ripper feldman it has come to me thank you we did bring her up the river feldman issue the court did not address that i understand that that is a different doctrine but we did make an effort to recognize that there that this was not the proper venue as well the trial court did not address it in personally not present in court nikita's informed us that he was president but he didn't say he was present with the defendant so that's back of the court room where they produced a document that has a box checked off saying defense counsel was present and in response to that i called up and i said was there a court reporter present for this alleged hearing so i could see whether mr tobin was actually physically present there and they told me that those are unreported hearings that's that's all i know the as far as getting the florida records go the state told in their briefs you see that they just say why didn't we for you i filed this we filed this an april one of two thousand and sixteen and based on our calculation with we will just rely and verify complaint thank you thank you i thanks to all counts of the cases taken under advisement and the court will take a brief recess for ten minutes before calling the next case