they please the court my name is jennifer monte i represent disability rights new york disability rights new york has representation all standing to bring claims in its own name on behalf of individuals with disabilities who have suffered rights violations abuse and neglect specifically authorized by congress during why may seek appropriate remedies on behalf of individuals with intellectual and developmental disabilities by the application or imposition of article seventeen a of the circuit court procedure act congress by legislation may expand standing to the fullest extent permitted by article three so disability rights new york need only allege a  controversy in order to have standing to bring this claim is the idea that you are something like a guardian yourself asserting the rights of the various disabled people no i would not describe disability right as a guardian i would say that congress created an entity who has to protect and advocate on behalf of the people it charges it with serving so we don't remove that person's rights where they are to express that person's rights as their representative but you're acting as their representative in much the same way that a a parent would assert rights on behalf of a child sure but we don't have to terminate someone's decisionmaking rights a person with an intellectual development or any disability in order to serve in that role and that person could guide that representation guide the entity in terms of the rights it wants to but that that's exactly sort of what i'm getting at you're bringing this suit it seems like without consulting any of those individual people and indeed without even mentioning any individual disabled person on whose behalf you  that i notice maybe the notice one that says that these various people or the sort of people we're talking about and they've played some role in this litigation because congress the injury is that you have an unconstitutional statute when you do you you identify any individual suffered an injury we don't allege a specific individual in the complaint because we're not required to  individual in the complaint instead congress said bring claims on behalf of people with disabilities and we say this statute on its face just applying the statute because it doesn't require notice because it doesn't allow for an attorney because well you get there when one of the question so would it be constitutional for congress to say we're going to commission the a c l u to bring lawsuits on behalf of anybody that it thinks is having his or her first amendment rights violated expand on that congress may designate a representational relationship through statute it has to be a specific relationship but they can designate that relationship the only thing that is required in order to meet standing is article three and article three requires that case some controversy and that the congress passes that you say that any citizen could bring a lawsuit on behalf of anyone  congress can create a representation standing and this is the support for that the supreme court identified that in united food they said that a representation a relationship can exist and does exist through other injured you need to go that far for this case i might have thought for example and that's why i raised the guardianship analogy that the people that congress has assigned you to protect are by definition and by the state's scheme deemed to be people who would have great difficulty in advancing their own interests which would not be the case in some of the congress's judgment would we need to go so far as to say that congress could just what anybody bring the paradigm kind of suit that the supreme court has generally said is the essence of not having stand i don't think you have to go that far because of how articulate congress was in creating the system and the rationale behind the creation of the protection that because i mean we can't forget that at th time the population of people that they were looking at were that population that you described on able to bring their own claims were abused or neglected and did not have access to justice they wanted to remedy that that problem of youth system go find abuse neglect but then what happens now no one can step forward to the court system and say well i want my rights you know to be protected we need to charge someone with that responsibility and the charge  mental illness act both of them we call the protection advocacy acts or the peony acts and in those two statutes the first the developmental disabilities bill of rights act is that the pit protection advocacy system has to have the authority to pursue legal administrative and other remedies to ensure the protection of an advocacy for individuals with developmental disabilities they used almost identical language in the pami act saying that they that the system have to pursue administrative legal and other said if you want to have this money you need to set up the system and the states acknowledge that they wanted that money and they set up the system in the system has been operating like that and to further the point of congress while we don't think it's necessary that the regulations that that that argues chu interpret this statute clearly said to bring claims lawsuits in their own right on behalf of people with disabilities and what i find you know that that we're arguing about this when you know that the p s a system after a couple of decades of using this authority and bringing planes in it's own right across the country because there's a protection advocacy system in every state in territory in the country came back to congress because it said we're using these scarce resources just borrowing whether we have the authority to bring claims on behalf of other people and we really prefer if you could make that much clearer and congress through their testimony in  that it's very clear the current statute is clear in its case that the protection advocacy system has the authority to bring claims in its own right on behalf of people with disabilities and that was forefront in their mind so there is no question that this is what the intent of congress is and because the supreme court in the united foods case said that congress can do this if there is a case in controversy we are turning to just the question that you raised your honor about injury and injury in this is about whether a individual just by the application of article seventeen is injured when they're not afforded constitutional rights to that process meaning they're not given an opportunity to meaning so the issue that really brings us hear them say what about the the problem of younger abstention or so disability rights new york's complaint doesn't trigger younger because we're not asking for a federal court regulation of the guardianship process we're not challenging a specific order and we're not challenging the process for which the state courts enforce those orders what was what is the remedy  secret a declaration that this statute violates the constitution and so that declaration doesn't interfere with any specific order or even an existing order that's in place we we also sought the idea that if you're going to declare the statute to be unconstitutional that someone should be able to be notified if they're being placed under guardianship from o'shane there's a similar request to stop the  state courts from enforcing the criminal laws in a discriminatory manner in an unconstitutional how is this different respectfully in that in the o'shea decision the court said that the that the party there was not seeking to strike down a single statute we are exactly looking to strike down in a single statute instead they wanted this ongoing review about how the statute was applied within the court system there would be no ongoing review this the federal court could say this statute violates the constitution you're also suggesting that in section seventeen a that the other procedure of what is the section eighty that should should should  apply what we're asking us in essence to order the state court system to follow the garden ship procedure that conforms to the more rigorous article eighty one procedures so first and foremost we're saying declare if the federal court were to decide that an appointment of guardianship is required to be constitutional we think that the state court could in fact appoint guardians appoint a person that's in a guardianship proceeding a lawyer without an ongoing review of the federal court under the the article eighty one procedure would that apply to the people who are currently covered by article seventeen a or they excluded from the eighty one so under the eighty one procedure you have two pathways and are as of yet so under the eighty one you are you are entitled to an attorney right no no no i'm asking who is covered by it in other words article seventeen a is limited as i understand it people with intellectual and developmental disabilities article eighty one is necessarily suggesting that article seventeen a needs to be written by the federal court you're really saying just if you strike it down then the only thing that will be left will be eighty one we're asking for injunctive relief so pursuant to the injunctive relief we're asking for is notice to those that have been placed under article seventeen a guardianship that they might have an opportunity to seek the review of that guardianship under an eighty one framework and to be able to say ok i didn't get an attorney the first time around i didn't get notice that this was a guardianship proceeding that was going to be placed over the over me i didn't get an opportunity to tailor that guardianship that eighty one process affords them that opportunity and the only injunctive relief that we see is notice that they were in fact placed under a stat under a guardianship that has been deemed to be unconstitutional who is the i they are in other words in what you just said so the person who is under the guardianship can invoke his or her rights is has the capacity to do so they could do that now they could bring a lawsuit like this if the assumption is they mostly can't then  notice provision seems a little bit well i think that whether you you i don't think just because you can read a notice means that you have the ability to invoke your rights on your under the statute all right but if the person can read the notice today and they can't invoke their rights then your notice is kind of useless well if they would invoke their notice today and come back in for the circuit court to try to challenge their guardianship they would still be left with the framework of article seventeen which is not to have an attorney to represent them if they're given a notice you can have an attorney to remove the guardianship you're under then then the noticed is a contest that in any event i guess it's not our business at this point whether the notice valuable or effective and maybe it's also not right really to decide whether you could get injunctive relief i mean if if you have a valid claim for a declaration that hypothetically at of the argument would not trigger younger abstention right then don't you get to go forward with your lawsuit and some later day a court may decide that it's not within its powers or it's not equitable or it's not appropriate to give the injunction story arc a claim shouldn't fail and it declaratory relief because the court has some concern with injunctive relief that the district court can and tailor the relief sought here offend younger but surely our interests don't and there were if you had such a declaration you you would still have i would guess you would have a continuing interest securing the relief you seek and you can only get that through and so on injunction what if you are unhappy with the state's respect the state is not going to be something else you know what i'm getting at obviously this if you're seeking to have a continuing supervisory role over the state system respectfully i would say we are not seeking that we have full faith in our court system to be able to read a federal order which declares a statute unconstitutional and says don't use it anymore i don't think that you have to be that's not a vague order the order is you can't appoint guardianships under the statute in not enough to go to the state court in some particular case where article seventeen a is being invoked and seek to intervene and argue that it may not be invoked against that particular actual human being who is being placed under guardianship that's not in terms of faith in the process they're using you know we can seek a federal court's interpretation of the constitution as a plaintiff in this case and we don't have to rely upon the state courts interpretation of the federal constitution so i agree with you not enough faith to say we wouldn't prefer the federal courts interpret their the federal constitution versus our state court but order which directs by the federal court system which directs the state to not use a statute doesn't seem to me to be anything that big and that the vast majority of these cases are uncontested and involve children and you are what the relief you're asking would disrupt the system and change it from something where the legislator apparently wanted to make it accessible to lay people to something that's going to require lawyers and suddenly it's a lot more contested  s that a request that that we revamp the guardianship just respectfully know that it is easier for parents does not mean it doesn't violate the rights of these you call them children but these are adults so these adults that come for them that you have an easier process on the backs of these individuals we won't give you due process because we want to make it easier for your parents to get guardianship over that yes that's the process raskin disrupt because if a person is represented and when there are not an issue in the vast majority of the cases as i understand it and then suddenly you're putting in much more rigorous procedural requirements is what you're suggesting i would respectfully dispute the vast majority of cases we don't know that without the right to notice without the right to defend against a guardianship the process works like this i'm walking down to the court room i don't even know i'm actually not even allowed to come down to the courtroom i might not even have a hearing and be present at it somebody has a piece of paper from two physicians which i have never consented to them filling out on my they walk down with a nother sheet of paper that says that they want to make decisions for me from now into my future and i am never told that i'm about to have a card you know because they're not told that you are bringing this lawsuit on the behalf i think that they that in terms of bringing lawsuits on their behalf i think that they do now to disability rights new york it and that we do tell the population of people that i didn't know so i guess i did know it's not a case in the district court by disability advocates but this is hardly something that is common knowledge that a there is such a thing as standing b that the standing rules have been adjusted by congress in this particular case we're see that there is this particular organization that's bringing a lawsuit on behalf of people with intellectual and developmental disabilities i think you could say that in each of the representational circumstances i understand that but you're taxing the parent who seeks guardianship because they can walk into court and bring a lawsuit without notice to various individuals which is you see exactly what's happening here but where we're taxing if we're taxing the parents about notice at the one at the right that's being fundamentally violated if not the parent in this circumstance and i think that what you're saying the problem is these people get to just come into the court and bring a lawsuit without any notice to the people who are affected and all i'm saying is that's what your doing you're bringing a lawsuit on behalf of people who have no idea that you're bringing that lawsuit arguing doesn't violate the constitution so so one requires you know that congress have the authority to do this and designate a representative one doesn't say that that because i'm a parent i no longer have to afford constitutional rights to my child once they reach the age of eighteen because they have an intellectual development authority that's the difference here and thanks very much to hear from mr agree that i pronounce that correctly what have you got to see for yourself may please the court mark prove for the new york state the new york state court system the chief judge of the state of new york and the chief administrative judge of the state of new york who have all been named in this complaint as defendant which seeks an injunction upon those defendants to promptly hold a proceeding regarding terminations or modification of any existing article seventeen a guardianship order at which the burden of is what what is going to come after that and how can you enforce that and this court in kaufman where the plaintiffs made a similar argument saying i'm only seeking to have procedures for assigning appell panel hoisted and the state can do whatever it wants to do and this court said that that was of no moment because inevitably the state court would have to come up with new procedures and those procedures would be subject to piecemeal challenges where plaintiffs who do not agree that they are getting the particular notice of article eighty one or any of the panoply of procedural rights could go to a federal that article eighty one how would how would the rule that they're seeking in this case different then the relief if they came in and said we're bringing this case on behalf of a particular disabled person who fears that his or her parent is going to bring one of these article seventeen cases and we seek a declaration that they can't because that statute is unconstitutional and not the courts and whoever but sues the parents to enjoin them from bringing an action under article seventeen a would younger apply there if there is no state court so yes right if that's sort of a different scenario i think that's a different scenario but i'm saying what i'm saying is it would that not result in a declaration if they were successful on the merits that the statue is unconstitutional and an injunction against those particular parents but then the state would be in the same position would it not it's the you know the next parents came along and a different case and wrote another suit under seventeen a wouldn't the state courts then have the same issue of following or not following  the federal court's ruling that they can't use seven you know well i guess what i think it comes down to is that the surrogates have amount of discretion and what this would do would be a would impact a discretionary decisions that surrogates make which is similar to what the supreme court said in o'shea you cannot do that they have discretion in terms of one of their arguments is that article seventeen a should be restricted to the least restrictive alternatives and certain surrogates have in exercising their discretion as to whether something is in the best interest of the disabled individual have dismissed article seventeen  proceeding and say that's not in their best interests go to supreme court a completely different court with different procedures and seek an article eighty one guardianship there so what's what they're really seeking is sort of controlling the discretion of surrogates in a way that is saying there shouldn't be any discretion because there shouldn't be any proceeding because the whole nature of the proceeding is one party comes into court asks for something to happen and then the surrogate can do whatever she wants and maybe she'll be generous to the rights interests of the person affected and maybe not but what they're saying is the whole system is unconstitutional if it doesn't statute they're presumptively entitled to a hearing and then the surrogates if sir if they are if they conclude that the hearing is not in the best interest because the individual is so dysfunctional or are unable to participate then the court the surrogate and his discretion can can say that the hearing does not have to go forward but it did so this is not this is a scenario where there was an ex post facto claim but there was also a due process claim that actions very similar to the one here you know there weren't sufficient protections in the procedures that had been established including the right to right to counsel  and therefore the statute did not comport with due process was to claim the state did not in defending the case argue abstention any thoughts on on how this is different is a appointed whether what the administrative forms are for initiating a petition notification of rights burden of proof these are sort of all things that have to sort of fit into this scenario in those enjoining surrogates from pursuing under article seventeen a there is no other proceedings for guardianship in the surrogate's court so people pursuing guardianships would would have to go to  reorganization and then the ninth circuit had a case of maybe a few years ago miles where there was a reorganization of where physically a certain court proceedings would be held on behalf of some individual affected by the guardianship just to say in that very litigation to argue that this statute is unconstitutional it can't be applied against me and if the if the court if the circuits court decided that as a matter of federal constitutional law the result would be the same and if somebody came in affirmatively to the federal district court in a situation where there is not yet pending an action which might invoke different younger considerations and sought a declaration that this statute is unconstitutional i'm just having trouble understanding why that would be the fact that the unconstitutionality of the statute means that the surrogates court is deprived of the function suddenly invokes younger you know what i mean one thing i would suggest also that area of state law in a specialized court where there's a few san szell state policy that the plaintiffs would be trying to interfere with the state development of that policy so it what would what would younger have to do with i mean something like that might be so extreme i don't know but this is this is this that's the question of the merits maybe this statute is perfectly fine when you get to the merits whereas for one i hypothesize would be totally unconstitutional but that's that's the question of is it unconstitutional or is it not unconstitutional when you get to the merits the question is the plaintiff contends that this is unconstitutional as see the constitutional or it's not so it's unconstitutional just as unconstitutional as a racist that you and they're they're saying it's unconstitutional and you're saying we can't even touch that in federal court because it would give the surrogates court one less function than it has been given well it's also a matter of that that's one of the reasons but it's also as the try to implement or interpret seventeen a in a manner that attempts to comply with the federal court injunction or ruling and then depending on whether the federal courts thinks that the surrogates have correctly met that threshold then then you would be going back to the federal district court for it to review whether this surrogates have properly  i hit my points unless you have any other questions on this understanding plaintiffs is a private not perfect for profit corporation it's a non membership organization does not assert an injury to itself as an organization it is not the certain injury to a member of its organization it is not a certain injury to a constituent with indicia of membership in the organization rather relies solely on congress's d d act which provides with which authorizes them to advocate on behalf of disabled persons which is unconstitutional as a violation of article i'm not saying it's unconstitutional i'm saying it can't you our congress says they can pursue legal remedies on behalf of art they come in and that's exactly what they're doing there is hurting a legal remedy on behalf of the class parties and you say what you drink from it by itself confers standing have said no even though or even the circuits which have incorrectly held that t n a systems have standing to bring suit have  rejected arguments that the act by itself by authorizing the organization is to bring suit that that by itself is enough the courts have said that may satisfy prudential requirements but  not pass by the constitutional requirement of an article three injury there's what is in there and their argument is and they like you to respond i'm just puzzled by this whole business they say well there is an injury to these various people who are subjected to article seventeen and so all we're doing is representing them in effect like a class trying to or somebody else who doesn't have individual standing to bring a claim on behalf of everybody else who suffered similarly but is authorized to do that by rule twenty three they're saying this is like rule twenty three except instead of setting up the system for a class representative to represent the class it lets us do that well i have a few responses to that if i can first go to united who the main president they rely on which gave  unions a statutory cause of action under the warren act to get back pay when a plant closed early and they don't comply with warne and what the court held there is that the statutory authorization can eliminate the prudential aspect of the one test which is whether an individual needs to participate which is similar to rule twenty three but that it doesn't it doesn't abrogate the constitutional requirement of an injury to rule twenty three you need to have a representative with and what is a monthly said was but these people do have an injury and you're saying they don't i'm not saying they don't i'm saying that d r n y does not have a sufficient relationship with those people to satisfy the constitutional requirement that they can rely on the injury to those people that prudential that's a constitution that is constitutional that's what united sued held and it said the reason is sort of the principle requirement of article three is ensuring that there's an adequate controversy between both sides is specifically about the problem of association or standing and i agree that that seems to cover the union it seems to cover trade organizations in hunting sort of covers the state agency  behalf of the apple growers yet that but the class point of the class members aren't members of his union that's point of is just a person who is one of the members left and so there's this representational idea which i think the plaintiff here is saying is if is different from membership like associations and right so there's different doctrines where a party can represent the interests of a third party and then all of those contacts that there are two routes to establish an injury you can establish a direct injury to the plaintiffs itself and rely on the rights of a third party so the distinction between injury and rights that we need to be clear is a kind of third party standing which is like the bar owner in creating against warren who  says i'm losing money because the state is discriminating against young men would like to buy beer as distinct from young women the right way to pass his own injury but the right he's relying on is the right of the third party that's really different in th right so this is that that's one scenario and i mean that they don't purport to establish any direct injury so then that leads to add as an association which is been the that every circuit court including this court and disability advocates has used to analyze whether t n a systems or their contractors have standing and that's the rubric for assessing the relationship between the named plaintiffs and the party whose injury and right not just their rights but their injury and rights they purport to rely on that  r in this analysis that unlike a union or unlike a trade association the people on whose behalf the decision the protective system is coming in to represent don't have any control don't have any vote don't have any input into the actions of the person or institution advocating on their behalf is that the problem right yes and under then dish membership passed back to use to assess the relationship there has to be some sort of input control representation and other circuits have looked at the disability advocates this court noted that disability advocates did not purport to have any sort of active consultation with his memberships and that's squarely judge chin i had  who had little misses and the state didn't raise any objection to their standing but the case was like overloaded with actual prisoners who came in to testify who were exemplars in know we've talked to and they're subject to these seventeen a guardianships and their rights were violated in the following ways and we're here on their behalf bringing this suit with that cure the problem that that might cure the standing problem in the sense of having an individual with a live controversy but it would make the case for abstention all the more clear because they would be participants in ongoing  article seventeen a proceedings that would there be ongoing proceeding i thought after the guardianship is established there forever at least unless that person comes back to court and institutes a loss the court maintains york county where they require ongoing reporting requirements from article seventeen a guardians and then review those so it's an ongoing proceeding until it is closed or maybe you could address one interest of mine which is mr montes description of the charter as it were but upon her organization by federal statute it seems to me that if business no because they can still represent individuals in individual proceedings and in disability advocates this court said that the fact that disability advocates did not have standing did not preclude them from filling their mandate because they could just fill their mandate to advocate on behalf of disabled people by pursuing those remedies in individual  you're concerned about ongoing supervision by the federal court of whatever the korean merges from such an action i'm sorry could you well if there is such an action in behalf of an individual and the individual prevails presumably the federal court would have continuing jurisdiction action and did an injunction it would have the same it would raise the same younger problem you your honor i just have two points that i'd like to address the first is i want to make clear that disability rights new york is not relying upon association standing to bring this claim what i'd like to point you to is the united fouquet set and the discussion about potential or not for that connection between the membership organization and the entity so while disability rights new york is not claiming any affiliation to a membership footnote six the decision made clear that the core acknowledge that congress may definitively declare a profit a specific relationship or a particular relationship is sufficient so if this court is looking for how do you have a connection between the people that congress charges who is representing and that is somehow beyond the bounds of association standing that's a that is a constitutional mandate it does so through statute and the supreme court acknowledged that that c the attorney general it said look congress has to be able to make this relationship work because otherwise how do we find standing in all of these other cases that the next one to i did want to address your honor's point about reorganization there is no need for reorganization because people with intellectual developmental disabilities can be brought before either court they're already being brought before if you want so a removal of seventeen a doesn't reorganize the system it just creates the one pa