good morning good morning your honor may i please the court to be marshal of term martial law group on behalf of the tenants i'd like to reserve five minutes for rebuttal keep your eye on the clock will try to help you besser this case involves a straightforward challenge t washington residential land landlord tenant act section three seventy five of that act authorizes writs of restitution to be issued served and executed without adequate notice or hearing that violates the constitutional rights of defendant tenants who are routinely evicted from their homes without due process counsel let me ask you most of what we're going to be talking about deals with standing next party young and a whole bunch of other issues of  we you're going both ways on this we are in primarily it really is a facial challenge i think on the face of it you can determine that the statute fails to provide the due process that's required when it comes and let me get something out of the way right off the bat which is that it's undisputed that the district court misinterpreted the statue the washington attorney general admits this on page one of its meekest brief and the sheriff has declined to defend the court's construction the key misinterpretation was that the district court determined that hearing is required before rid of restitution issues under section three seventy five but has the washington attorney general agrees that is not the case i don't think you need to spend much time you seem clearly right in how you've read the statute but could i ask you to jump in as to yes of course that's what's troubling me the most  let me start off with standing and then all address mutinous of course standing is determined at the time of the commencement of the litigation in this case that was july fifth of two thousand and sixteen and on that date plaintiffs more in shock who are going to focus on primarily they had been served with a writ of restitution and had not yet been executed the writ was served on june twenty third of two thousand and sixteen and when they filed their case on july fifth of two thousand and sixteen they were asking the court to enjoin the execution of that writ the writ remained valid until july twenty first of two thousand and sixteen so they had standing at the time that the fall of the case kill july what one offers exactly july twenty first and that's a s t r sixty three that was when the writ expired and the sheriff then returned it to the superior court their claims did subsequently become notice is that says we're going to try to get you thrown out you go into court to get the execution of the ritz stayed right and then are in that form can you bring the kind of facial challenge that you want to bring in federal court in that state court states appear court proceeding but  i think it's fair to say that the in the unlawful detainer proceeding more in shock could allege that the statutes unconstitutional and they could is that what you're asking yes yes so this is certainly they could have raised that argument with the court but i think the key answer to that is in agua caliente this court said that just because you have the availability to challenge something in a state court doesn't prevent you under x parte young from going to a federal court and seeking the relief and so moot standpoint should our court be concerned the amount you can see that it's now moot but you want to say that it's you know the duration of these proceedings is too short and so that's correct and i guess why should we be concerned about that because you will no doubt find somebody else to represent who's in this exact same circumstance and why can't you just bring this facial challenge the next time somebody is in state superior court being faced with a three seventy five of detainer proceeding it can't be converted into a class action so it's suppose for plaintiffs more in shock they would have prevailed but that would not at all benefit any of the other tenants that are out there facing this every day so you can't ask for kind of declaratory relief in that proceeding that says judge we want you to the clear that this thing is just invalid on its face it's unconstitutional violate the federal due process clause you can get that relief well my understanding is that you could certainly get that with respect to your claims in the unlawful detainer action but the sheriff's not a defendant in that case so there would be no relief that enjoins the sheriff from from continuing to with other judges serve those writ execute those writs with respect to other tenants and this is happening all the time so what you're saying who's a superior court ruling in one case won't bind anybody except for that superior that's exactly right that that particular judge that's exactly right and  important and that's what we've brought this case is a class action and that's why we're seeking the systemic injunctive and declaratory relief that we're seeking is because in this housing crisis that we're facing here in king county this is happening on a daily basis and  with hundreds of thousands or hundreds or thousands of people every year and just picking it off one of the time is not going to solve the problem and these are constitutional rights under the due process clause of the fourteenth amendment and it's important and this is what ex parte young a louse i mean this is a quintessential ex parte young case where you have a challenge the constitutionality of a statute the sheriff is an appropriate defendant because the sheriff has a connection to the enforcement of that statute the sheriff serves in executes those writs and the sheriff is a state actor when doing so and ok that all makes sense to your your position on this is just  that the reason we need to be able to go forward with this i guess it's now you want to bring it as a class action here in federal court is because every single time an individual person is faced with one of these three seventy five actions the whole thing will just run its course before the federal court could get around to resolving that's exactly right this case falls into the inherently transitory exception that was announced in the gerstein and garrity cases by the united states supreme court  section three seventy five procedure is completed in a matter of days or or weeks at most that procedural due process violation occurs quickly and the ultimate deprivation of the constitutional right to occupancy and housing also occurs very quickly can i can you just articulate very crisply what your core procedural due process violation theory is is that basically nobody should ever be evicted from their home unless there is a mandatory hearing that occurs as in under i guess it's section three seventy is that the other the can process that there you always have to have a hearing before someone is actually thrown out on the street is your position that or is it rather that the defect with the three seventy five procedure is that the notice that the tenant has given it doesn't clearly say how they can avail themselves of their right to request a hearing is that the problem or is it that the former it's both your honor  d so to be clear there are really two problems with section three seventy five the first is that paragraph four of section three seventy five allows writs to be issued without a hearing and so our first argument is that you is that under paragraph seven f of section three seventy five the notice form is woefully inadequate and it really is for three reasons first it fails to inform tenants that they may raise legal and equitable defenses or set off to the payment of rent instead what it says is you have two choices you can either pay into the court registry the rent that's allegedly owed or you can assert under penalty of perjury that the rent is not owed that's what tenants are told but there's a third option the third option is that you might have equitable defenses that even though you owe the rent you can't be evicted so forth like yeah like what like so let me give you two examples one would be habitability so for example  it's called winter and you haven't had any heat for months you might have an argument that you have a set after the rent that's allegedly owing or as in the case of our clients here more in charge they had arguments for reasonable accommodation combinations for the notice form doesn't tell you that the notice form also fails to inform tenants that they have a right to stay the writ in till they have a hearing and finally the notice form fails to inform tenants that they have a right to a hearing and so on that legal and equitable defense is i would point the court to paragraph two of section three seventy five so right there in section three seventy five it says that you may be able to raise legal an equitable defenses but the notice form doesn't mention that at all unconstitutional taking due process deprivation your honor i don't have something to that effect instead what i would submit to the court respectfully is that you have to look at the balancing test under matthews and what we're saying is that when you look at the balancing test under matthews the failure to inform tenants of these things creates a substantial risk of erroneous deprivation and that erroneous deprivation is of the highest degree i mean we're talking of action this is not a partial loss in a protected interest this is a complete loss of that interest in the occupancy to the home and so for that reason we respectfully submit that on the face of it it can be determined that there's a procedural due process violation we also think there's an as is challenge if additional facts need to be submitted but but on the face of it we think that we need it the ex ok david hackett for king county senior deputy representing the king county sheriff the share please the fundamental problem with this case is that the wrong party is being sued this is not your typical because the sheriff is executing a court order so essentially it's that very rare case where a judge is essentially threw the sheriff being brought before the ninth circuit on a case that should be appealed to you where you think that the hang on hang on i want to bring a facial challenge that is going to invalidate the statute throughout i guess again here it's the county but let's just say i'm going to focus on king county i don't want any judge in the county to be able to pick someone through this process because i think it's unconstitutional so who do i sue to get an injunction that forbids any state superior court judge from a line on the statute to pick someone well i i think that the i appreciate the court's question i think that that fits into the larger question of is this case moot oh i just want an answer to the question you said that they've named the wrong parties in the front and i'm asking you so who's the right party the right parties the landlord the now or the statute now under washington law when you challenge the constitutionality i want injunction that forbids this statute from being enforced in this county i can guarantee you that the landlord is exactly the wrong defendant to take that relief so tell me who can i get an injunction against to prevent this statute from ever being invoked to vick so much i think an injunction against a statute would be a misguided way to approach it the proper way i believe to approach it when you challenge the constitutionality of a statute you're required to bring in the attorney general the attorney general would then defend that statute as mrs moore did she brought the constitutional challenge to the statute she obtained a stay of the rid of execute  rid of restitution which gives plenty of time to review the matter to address it and to determine whether the statute is valid if that declaratory judgment is entered that the statute is invalid at that point subsequent courts that interest unless it stayed are on notice that there's a problem more importantly the sheriff now knows that that it may not be officially valid order ok but you heard your opponent's argument which was to say fine i'm in this three seventy five percent and i get a stay of  execution of the writ or the warrant whatever it is i ask for broad declaratory relief that says the statute is facially invalid and let's say that the spirit or judge gives me that relief and says you're right i declare that this is facially about that their argument is that but that's not binding on anyone else except the parties to this case so however i accomplished my objective as a litigant there very quickly it goes up to the court of appeals and at that point it becomes binding you obtain it ruling it becomes binding it can go straight to the supreme court it becomes binding so you're saying that the appellate process is the way you get a binding result in this case yes and i think it's because of the nature of the young proceeding that's being brought here in this is this is where i want to i want to focus on this question of judicial munity because i think it's what resolves this case there are really two things that resolve this case the judicial immunity is important because ex parte young doesn't provide you a cause of action it's simply get you around the eleventh amendment once you're around the eleventh amendment you still have to have a cause of action that cause of action in section one thousand nine hundred three that's how you vindicator due process rights now in that situation when you're under one thousand nine hundred three then you are subject to the federal judicial improvement act which essentially overturned the statutory rulings by the supreme court pulliam that's essentially not dealt with in appellants reply brief in coverdale this court term and then an officer that is simply executing in accord with the terms of that order the court's order isn't quite as intitled the quasi judicial immunity of with respect hasn't covered hills really been totally undermined by briars and anderson executing an order not when you're asking for an order as a declarant but when you're simply being handed an order either as a warden for a prison a king county jail director or somebody else in your ass simply to execute that order that type of judicial immunity is still fully available so you under under burton haven't we indicated after these other cases that less the officers are exercising a discretionary judgment that they're not entitled  to immunity i think that coverdale remains the case on point and still good law and i think what it doesn't miller change all that them is miller doesn't really require that there be some discretionary judgement before there's sheriff i think a lot of ways in the ninth circuit and possibly other circuits you have two chains of quasi judicial immunity that seem to be not terribly aware of each other one is the type of that your honor mentions where you're talking about things like pro boards where they exercise discretionary acts but the other is is the clerk of your own court the sheriff that's asked to do the writ the warden that's supposed to take the prisoner without those officials being able to give full faith and credit and follow the precise terms of a court order and coverdale in history in those cases it's been recognised courts essentially won't be able to function these folks are serving as arms of your court and as long as they following the court's order they're entitled to i think what's properly termed as quasi judicial munity and that is sufficient to bring them within the amendments to the one nine hundred eighty three which precludes injunctive relief against judges unless eight court order has been violated first that's also frankly consistent with how the supreme court discussed law in the common law in poland to the extent that i think it's says too much burg i have real trouble with this idea that the share of has no discretion in this thing is entitle to judicial or quasar judicial immunity maybe something else but i don't follow your logic that the sheriff in this case is entitled to that type of munity why am i wrong i think you're wrong because coverdale controls and henry is is good authority as well and that's and that's just for that very narrow where they are simply doing what the courts said to do now if the sheriff used excessive force while doing that that would be a problem if the sheriff was applying for a warrant and misrepresented facts that would be a problem if the court had issued a warrant in that warrant was  negligently served against someone who did not meet the descriptions the ninth circuit has determined that is suitable but for the simple act of doing exactly what the court said which happens three and a half thousand times in this county every year the sheriff gets immunity for that undercover jail i'd like to turn to this question that millen however because even if immunity doesn't apply young does not provide a vehicle for getting to this case and that's important because if young doesn't apply then plaintiffs must satisfy menow which they do not the sheriff is not the moving force in these proceedings it is the it is the court and that's so that's another way you can dismiss this case or affirm dismiss if young doesn't apply and monella controls there is no allegation that the sheriff is the moving force nothing to do with this case i mean maybe you take a second try to explain your theory but i mean i read your proofs and i just found the holy and persuasive elaborate if sure if if the sheriff is a municipal officer which we believe he is under monella they are required to prove that the sheriff is the moving force behind the violation and the cases we cite i think go for that proposition that a sheriff that is doing something because basically forming a non discretionary act due to a judicial order that person is not the moving forces centrally this is this is a way around lots of things to be able to essentially sue the court directly a right as a law to say that yeah that's right but i'd like to look at those young criteria because well let me let me answer your question you've argued all along that he just carried out the duties of the superior court yes well doesn't that make him a state officer then the superior court is a state court right as the attorney general points out centrally are superior courts are mixed they have aspects of county they have aspects of state but i would submit to the court that it doesn't matter whether the superior court is a state court or a county court simply executing the order of a court doesn't make you the agent of that court per se what it makes you is someone who is charged with executing the order of a court in a simple example would be the head of king county jail head of the king county jail takes prisoners because they are ordered by the superior court to do so no one would argue the head of the king county jails as a state office with but the jail isn't doing the duty of the superior court by jailing someone but the sheriff is doing their duty the superior court when they're serving a writ under under state law of course the sheriff is as we pointed out in our brief much different than alabama identified as a county official and the state law the r c w s assigned to that county official the duty to attend to the accord and the duty to hold out these writ so i think perhaps it's a fine distinction but it's an important one in it's that distinction that as a county officer you know myself as a county officers and as a deputy prosecutor i have certain things i do on behalf of the state but i am still a county prosecutor same with the sheriff the sheriff has given duties to enforce state law he's given duties to execute writs he's given duties to lots of things but i think mcmillan makes it clear that if you are simply following a legal obligation that's not enough to make you a state officer but mcmillan also makes clear i think that two principles are going to guide you you have to look at the facts of the individual case i sure you would say that would be true here so aren't we forced with looking at what the sheriff does here well that's a state function whether it's a local function who controls and importantly whether the sheriff has discretion or is simply carrying out instructions as given by the court we believe that a county officer following instructions is a county officer but i'd like to point out the bind this puts plaintiffs in they lose either way if the sheriff is a state officer because he is acting as an arm of the superior court which is a state court then the sheriff's intitled to the derivative immunity of that court thus coming under even if  discussed about in the sense that when you are so suing a judicial officer you can't do it on the first time you did in during that time you don't get injunctive relief you don't get fees you can only do it if that officer continues to violate  a order of the court now i suppose it could be that if the superior court enters an order that this is unconstitutional and it doesn't end up being stained by a court of appeals and the sheriff continues to exercise rich restitution at that point maybe were properly drug in front of federal court that i could i could see a good argument for your argument is that in this case they just acted too soon the first instance they're suing the share for doing this there this is the first time out of the judicial amendments one hundred eighty three you can do it it's premature right if if miss moore's motion had been followed up on and superior court this issue would be resolved and none of us would be here absolutely meaning going all over the court of appeals well have this had the supreme court rule go to the court of appeals go to the supreme court whatever needed to be done to make that ultimately a final decision but in that situation you know once once the sheriff has a superior court order saying it's unconstitutional to serve writs restitution from a judge in our county i doubt very much that the sheriff would be continuing in that unless there was some type of appropriate stay and seeking a furthe met and someone can bring an action against us at this point but i'm a fan of the movie working girl a long time ago the guy wanted to know how to get his multimap national media corp going you know remember there was the story about when your bus is stuck in the tunnel you just let air out of the tires and that's how it gets through plaintiffs need to let a little air out of their tires so they can get through that tunnel yet that ruling very simply straight forward on whether this law is constitutional and that's done down the street in a spirit court and you're on  it's not the sheriffs not a party in state court and let's see how this would play out so more in shock get a ruling from the court that the statutes and constitutional who's appealing the landlord why would the landlord want to appeal that ruling and spend a bunch of time and money when it can just move on and continue to do what it does and certainly why would it want to put forward the risk that for all of its properties it can't follow the three seventy five procedure i just don't see the court doing that but the most import i mean the landlord doing that most important thing though is that the sheriff's not a party to that case the state is not a party to that case the relief that we're seeking here is important constitutional relief against the state with the share standing in the shoes of the state and so let me turn now to judicial you can say let me ask you think first of all you mr hackett indicated that the appropriate defendant here should have been the attorney general what's your response to that my response is that under ex parte young we satisfy all three requirements for going forward and the sheriff is an appropriate defendant because the sheriff has connection to the enforcement of the law that's being rational about you trying to invalidate a state statute and if i understand it correctly under washington law the normal procedure when you want to do that is to sue the attorney general you disagree with that i don't i don't  i would put it this way i think that we had the option to sue the attorney general as well but that i'm unaware of any authority that says because there's another defendant out there that might even be a better defendant that something that's taken into account for purposes of the injunction is is is just as important if not more important to stop the service in the execution of the rights of restitution but you dish will immunity doesn't apply for two reasons the first being that we've sued the sheriff as a state actor and kentucky versus graham another decision cited in our briefs make clear that in an official capacity lawsuit judicial immunity is not available the only immunity that's available to the sheriff who is standing in the shoes of the state is sovereign immunity in ex parte young of course gives you an exception around that and then second it's a ministerial act there's no discretion whatsoever the sheriff is simply doing what it is told and as you pointed up the sheriff is argued that in its briefs throughout this case we are obligated to serve wri argument been very very helpful and interesting case the case just argued is limited