much earlier in the litigation and that was the basis for the same so the rest of the arguments are kind of no nevermind the only question is was this person the property of state after is that right or you're saying he has to be on the payroll of the stat we've been on liable but we were driving as an agent of lift or hoover or some other company therefore the attorney says should run against that party in that situation your honor would submit that the appropriate remedy for this record to do or the court to do is deny that motion for two different reasons the particular entity that allegedly the responsible party is not or the court  had no basis for finding that there was an agency relationship in that situation that this record would have to go ahead in the status what was the basis for the driver saying hey i was driving for this particular company and by requiring the shark to do that and the two court said no there is nothing here in these allegations there's nothing under state law other than the general provision in the california constitution that state of the attorney general supervises quote unquote the contesting that initially that it's recorded granted the opportunity to have to intervene but we all have to decline to intervene and there was no involvement in the kids from the japanese how this is different from any other situation in which the difference is your honor that here by definition there is no state also the attorney general is a state office on this under the constitution and the attorney general speaks for the state in those particular types of litigations there's fifty eight law that has supervision and control over those individuals this court asks for supplemental grazing on certain provisions of the state law and we responded to it yesterday we pointed out how under the california constitution there's different sets of provision immunity that it's a question that it's a mix question of law is back in the courts look at the nature of the state law and look at federal law to a particular question we submit to the court of the question of agency for purposes of whether a whereas as a matter whether as a matter of state law you think you're entitled to indemnity or that another entity should have to pay for that that is a question that is outside the purview of the ashley for the district court particularly here going regarding the particular you need for the chances of the relationship between the sheriff and the city and the state a california or the facts the actions of the sheriff and who lead those lead litigation choices there's nothing that  the analysis under mcmillian which the district court applied when it held that the sheriff acted on behalf of the state it is a determination of liability the state's argument that it's only goes to immunity and doesn't establish which public entity is liable is incorrect and we know that from mcmillian itself it could have raised that but also it once the district court held that the sheriff was acting on behalf of the state and under brandon versus holt the state was the public entity that was going to be liable and the state knew that that this is the state was a party to the case in the same way that it's a party any time there is an official who is using their facial capacity on behalf of the state maybe it could intervening maybe and so it definitely could have appealed the judgment and said we are not we are not a public entity liable on its judgment because the sheriff has not act on behalf of the state but he didn't do that and so that's why we've argued that the question is now is not even properly before this court did  he do that if they could appeal but the reason why at that stage when they were still in the litigation they not appeal because the district court said i'm going to sustain her out of the state of california was out of the case you know but before they were allowed out of the case as i understand it the issue of the agency was being litigated and the state was still a party at that time and you said they could appeal when they determined that europe was the agency but did they the community the let the minutemen immunity have an effect on them not proceeding because they were going to get  out i mean i can't explain why i don't know why they what considerations went into not appealing or what consideration went into not intervening after they told the court that they would i understand that i guess i'll come back to the point that your statement is that the agency determination was made when the state was still in the action before they were let out on their th amendment immunity the attorney general was in at that point the state was not even at that point but the if the attorney general certainly knew it and it was in the same  that the official is acting on behalf of the state the state law ceases to be relevant to the question of liability for thieves because it just follows from the fact that the state is the public entity that's liable and the judgment well that's the reason why i'm struggling with the what did the state have the opportunity what do you want to call it due process  way back then about that they do that but they have done that they could have but they have a claim they haven't even claimed that they weren't able to do that but oh there were and i mean it's murky they were able to do that because they obviously are biggest interest w is not a part of the state the state is a party in the sense that it's and i mean the state has said that he will pay the judgment if this court affirms the district court's said it should be against the officials leaving it to the state to figure out what the officials they paid but the majority said no it is a direct obligation of the government and part they specify the department of corrections but there was no real issue in that case over whether it made a difference to say department of corrections or to say state because we know that from brandon when the state reprimand the sheriff well because the state the state the well the state's position is that the sheriff is not entitled to representation by the state representing the sheriff i mean fundamentally what this case is is a challenge to the constitutional adequacy of judicial procedures for prearrangement release because it's the judiciary that actually makes those decisions is petition exact same claim and i think if it had if it had been there's no question that the attorney general would be representing the sheriff in that case because that's what legally required to pay the attorney's fees in this case i just wanted to take the podium briefly to discuss two key points the st widely is care about the result here and what we see this court and the parties that they were in general actually was going to intervene and become part of this lawsuit they elected not to do that and our issue with all of this they filed a notice of nonintervention actually shortly thereafter because they decided not to intervene sheriff negotiated her own judgment that runs only against the sheriff and the sheriff's procedures and the sheriff also was represented by the attorney the sheriff was saying i will not defend state law we have not way the challenge to the a