the imposition of a twenty five dollar administrative fee violated appellants due process rights and the second issue being the district court's conclusion that imposition of the sea was rationally related to a legitimate government interest first with respect to the first claim the court relied upon three cases from this court to find that the state statute was not relevant to the determination and we don't i mean we reviewed the judgment in the the decision below we don't review the of the language in the opinions and so i think you're probably right that to say it's not relevant that it means nothing may be in error but as i read those cases you're about to talk about it does it's certainly the case that a violation of state law is not tantamount to a federal constitutional violation so even if it's something that let's just assume it can be considered whether they're you know in flagrant violation of state law or something like that tell us why it gets to a constitutional violation which is the ultimate decision the district court made absolutely your honor and why we think the statues important is because the statute puts into perspective that twenty five dollars see maybe that you would necessarily get if you disregard that statute under section three sixty six point one seven eight that c was only to be imposed they were allowed to impose and see up to at that time it was one hundred dollars in order to recover the cost of collecting unpaid tolls or by the fact that the state statute which if you're relying on it that heavily to find a federal constitutional violation if this was only one fourth of what the cap was under state law and how is that such a violation of what the state intended but it  it wasn't one fourth in the sense that they could use any number under one hundred dollars that as the district court found in its first summary judgment or that's the had to be correlated to the actual cost of recovery now we're not saying it had t be correlated in some kind of mathematical precision precision based upon each individual case but what it what is the actual test we should apply you all know close does it have to be how close it has to be a you know i hate to get into the sliding scale that's ahead i know that's what you're asking us to are going to say we're not ask you to do that but we're asking the jews to say i don't know what the number ought to be i can tell you it's nowhere close to the twenty five dollars fee in our issue before you is whether or not the application of this statute violated our folks substantive due process rights and when you look at the amount of the fees that they build in connection with what their collection costs costs were it's not in the realm of the close there are numbers there are consultants found that it cost them roughly ninety four cents and then include the cost of my understanding as i was just the marginal cost of you know issu ing each notice putting a stamp on it except did that include the cost of installing the cameras installing this software system i'm not sure that included those costs but those are all costs that had to be incurred when the zip cash to collect the regular tolls right that that's not a fee that had to be incurred with respect to administrative costs because they needed all those things in place they needed the camera to get people like your clients who decided they were going to use the toll roads for free they needed a camera in order to get anybody that used those toll roads that anything of this nature violate some sort of due process i can't tell you that i thought a case where they actually thought after the merits that ac did violate substantive due process i can tell you that this court in the water deandra scase which was authored by chief justice stuart at the twelve the sixth age found that a claim that a district court imposed fees that were in excess of those allowed by state law stated a viable claim for substantive due process violation accounts is a legitimate government interest the question is can you is it rational to encourage the use of toll tags by imposing fees that are twenty six times your actual cost when the statute limits what you can charge is a perfectly coercion to allow people to write a toll road the previous to the system you just you know you could ride without paying i mean they're trying to open this up to people like your client you don't have told actually might not and i was that coercion who's being coerced to use these roads and not pay for it's not it's not being forced to use the roads you're out or it's being course in opening tell tags that people may not want to open i mean the if that's considered a legitimate government interest i bill folks one point three eight billion on sixty well after they had a couple to chances to to pay the the toll without any administrative right they had an opportunity certainly invoice came their way there was evidence of yes or no i don't it didn't they have multiple opportunities to pay the toll without incurring any administrative there would be an invoice that would arise and there would be a late notice and in the violation stages where the twenty five dollars came there was evidence in the record that some of the folks were getting the earlier invoices intil that the first they would get would be the violation invoice that would have a twenty five dollars fee on it that's and then they could call and get that reduced or if they opened a toll tag they could get that reduced if yes they could call and get it get it reduced down to eight dollars and thirty three cents which is only eight times more than the actual collection cost which is why i think it's important that we let that we look at the statute in here because it's it's the statute that authorizes their action and the statute authorizes them to recover any rational basis for the and you say well that the fees are excessive there's a rational basis for charging it says it fees if you're if the object is to encourage the i did discourage people from from in mind that the encouraging portion of the statute comes from the fine there was also a fine of two hundred fifty dollars that could be imposed if it's if these were paid so what we're looking at here is an administrative fee separate apart which was there was to only go to the some level it still has to be some fifty has to have some rational relationship to that you can't impose the so then what stops them from imposing a fee of one hundred dollars a thousand dollars two thousand dollars is is there no limit i would pressure on the i mean a lot of things besides the federal constitution isn't the only thing at issue here and it was public pressure that got them the lord in the first place after they and it would not justify timing it to the recovery of costs which is what brings us here i mean at the end of the day this was supposed to be an administrative fee that was used to what should they have done i mean they're they're free to do whatever they want they cut cut deals like they did they run amnesty programs from time to time that says will waive your deals if you open our army they could put the gates back up there if they wanted right at the gates back up then your people would would have would before then their big coersion if they decided to use the road they'd be forced to pay or the gate want to go up and they'd be stuck we're not talking about horse and to use the road we're talking about course and to use it they could certainly shutdowns of cash tomorrow right but they've chosen to allow folks to operate under the zip cash system so is it isn't free for them are they free to incentivize folks to open till they sure are they freeze to free to impose a c that has absolutely no connection to what it's supposed to be connected to we would argue that  through and you'd see fines of a few dollars i checked this student out and my eyes popped open because the fine was something like ten twenty thousand dollars what had happened was she had taken out you know they have articles the professors put in the reserve room today it's probably all online but this was back and before all that during exams i think the fine was something like twenty five dollars an hour if you didn't return something in the reserve because people are all studying for their exams so she didn't return something during the reserve periods accumulating like twenty five dollars an hour for months and months it had nothing to do with the administrative cost of calculating that it was all we don't want these things kept from other students during exams would that be  a violation of the constitution in your your theory let's assume it was let's assume it was there limited to add and that cost is limited to the reasonable yeah we would we would say under this court's precedent that that states a viable claim and we argue that here was that even though there's a strong interest in keeping students from from hoarding the articles just like there's a strong interest in keeping people using toll tag which reduces administrative that the the point of spacing very difficult burden to try to establish a substantive root due process case we have searched high and low and we have not found a single case like this where someone was challenging the fee and the courts got into the inner workings and cost accounting of an agency to determine whether it was met substantive due process the only case they mentioned today is the woodward case and your honors i'd asked the court to read the water case it doesn't get into any kind that in the water case there's a very important sense and knowledge in that state law standards do not control the analysis good and as i read woodard it's more focused on procedure and was at the motion to dismiss phase we're obviously not even at the motion this myspace here  honor i would like to put some things in perspective first one thing i think that gets overlooked in the debate in the briefs is the starting point for the entities goals is collecting its tolls and there's a lot of evidence in the record one site for examples thirty seven thirty five lots of the presentations to the board of directors when the m t a was evaluating its administrative fee on its own before this litigation started because there were some customer  and number one they always said our number one goal is to collect the tolls and as the evidence shows this is in steve turner's declaration the way this process was handled was successful in collecting a lot of tolls so waivers were granted  at times complete waivers down to zero such was offered a plaintiff lewis they were successful in collecting tolls that's always been the number one priority for the m t a as far as the purposes i also want to put this case into perspective because the appellants arguments they blend everything together and they they don't put this in context and i know some of your authors are familiar with north dallas and the way the tollway evolved but the technology and the elevation and the innovation over time is very important in two thousand is when the toll the administrative rate went from ten dollars twenty five dollars and in the decoration from jamie hoffman which is under speed in the record page thirty four ninety prior to two thousand we didn't have cameras we didn't have the infrastructure in the computers the back office staff to do any type of electronic and foresman and so the rate was raised because the and it was going to a new model that required and they knew in advance was going to require additional funds that model goes into place in two thousand it's not until two thousand and seven when the zip cash model goes in place so in two thousand and seven we have another change in the model which is the change in the model that results in significantly more violations the model changes in two thousand the gates are removed in two thousand and seven they start removing the tollbooth so it's just like a wide open highway that you can drive down improving traffic in dallas and so everyone is getting bills either through their told head or through this process a different model that resulted in customer complaints page but it's interesting to put in perspective the models rolled out starting in two thousand and seven it's not completed into that two thousand and ten in two thousand and eight and this is on page thirty nine fifty one of the record the complaint rate was eight people for every one hundred thousand contacts was it cash it's not a very big complaint rate but nevertheless the m t a already started looking at cost as a problem no five in the valley they were in and by your honor it went by two thousand and nine it went to the whopping rate of thirteen per one hundred thousand as i understand the point its position they recognize that there might there's an interest in converting people to the toll tag but they're saying that has to be that can't be part of the administrative fee that the administrative fee is limited by statute and even just by its title to administrative slashing of collection expenses what's wrong with that argument that that the nature of this speech prevents you from relying on the interest in encouraging toll tag your honor that's the argument that we believe is bootstrapping the state law statutes of the plaintiffs reading of the state law into the constitution the constitution requires if we go with rational basis standard and come back to that one second any conceivable rational basis even one dreamed up after the fact here we have rational bases that include collecting the toll encouraging toll tag to use recovering costs and there's also a deterrence element that i think i mean want to address because the the appellants mischaracterize how the fine comes into place but ultimately there's nothing in the constitution that tells us which of those policies were allowed to further or not further i briefly mentioned i wanted to come back to the standard view because there's obviously a debate between the parties about what this even though you want a rational basis you're still pushing shocks the conscience of your honor we're not prepared to concede that standard but what i would submit is because we went on the rational dividing line is it's a legislative require legislative action that affects a broad number of people it's rational basis if it's an executive action that's directed at a particular individual a licensing decision obviously something like louis police action out on the streets that shocks the conscience so why do you think this fits within the executive type decision when it effects and potentially millions of drivers it just cost of that argument and the pla so make that argument here citing the unpublished published golic case which is i think two thousand and one before this court's decision indo those important although the facts of doe are horrible and there are unlike the facts of this specific case the legal was important there we were dealing with this court was dealing on bonk with school policies about checking out children it was the school policies that radiation applies to broad number of people and in fact the court even acknowledged that the policy at issue was also a common policy for many other counties leaders in the state of mississippi the court applied shocks the conscience to looking at a policy that was being acted by school boards here we have a policy that with all its effect on a particular person right i mean it was how one particular student was treated your honor the standard as i understand it the standard you look at is that the standard there was whether the policy itself by leave the constitution and although it required injured plaintiff to file the claim this case requires an injured plaintiff to make the client ultimately the legal standard is what standard do you use to look at the policy and a legislative action is very different then in a ministr or executive or quasi executive action like what the m t a would do we have a organisation with a board of directors it has its own access to its own data it has its own expertise about how it runs its operations  very different process than when a legislature is debating back and forth with lobbyists about what policy to be enacted and so we believe that shocks the conscience would be the right standard but again it's not necessary to reach because in this case rational basis is more than enough process which is part of the reason you just stepping back this is not a proper substantive due process case as i started with the technology in two thousand thank you and on your honor we went under either one for the plaintiffs prevail we we believe they'd have to prevail under both because the shocks the conscience is test does not allow someone to avoid having to show irrationality shocks the conscience is higher so the point of we think have an incredibly different burd can see that it is appropriate to incentivize people to switch to poll tax but they mentioned the fine in the two hundred fifty dollars fine i want to put that in perspective again because the statute is clear how this works the fine does not come into place until after someone receives their bill fails to pay it receives the next bill with the late charge the one that one fifty or two fifty administrative fee doesn't pay that receives the violation invoice with the administrative fees that were a issue in this case doesn't pay that then it some point might be turned over to pay a fine section three sixty six one seventy eight easy in g of the statute discuss this and what a fine comes in place it's through a court proceeding and it's as the statute you can just see on the plain language of the statute the fine goes to the courts it doesn't even go back to the way to pay the cost of that sentence when you walk through that process it's sort of a step process pay your bill you don't pay your bill you get a late charge pay your bill it's interesting that in that late charge that late in the way this tells the the recipient if you don't pay this bill your next bill is going to be there's an example of that record forty two ninety six it gives advance notice of the administrative fee that's coming then when the administrative fee comes on the face of the bill it tells them and he is willing to reduce this if you pay your tolls and pay this bill on time so the reduction is disclosed on the face of the and sample employees at forty to ninety eight so you have several steps in the process before anyone's ever turned over for a fine and so for the opponents to suggest that there's some kind of double dipping or that the fine takes care of the deterrence and the encouragement to pay the tolls  ignores the entire system your honour's we believe that the district judge ultimately received the right decision and although there's one sentence in the district court's opinion that we've already heard that the judges reference to the state law standards may have been less than precisely written we think judge fish applied the right standard when you read his analysis he reached the correct result he ultimately concluded there is no constitutional violation here so ultimately your that was in the mccaskey case in two thousand and six and the galah case i actually have is being two thousand and eleven that with references two thousand one camera i don't have the case here with me i can't represent that i didn't write it down wrong but that's what i had we would submit that this is a case where the rational basis test clearly applies to questions about how you if you're right in there are these fees under the constitution have to be tied in some way to the cost of collection of the administrative fees how is the toll road authority or other public entity when they first start with this process how are they supposed to figure out what it's going to be and then if after a year they realize they're wrong they have to keep every year changing the fees to tide better to what the collection is it just seems like a very difficult process to work out and we argue that that ought to be what happened but that is not what happened when they came into existence in one nine hundred ninety seven and this test the record they just carried over the what at that time was a ten dollars fee that its predecessor that the predecessor entity had charged when they up to tell tags in two thousand they opted to twenty five surmising that it would they would have had an increase analysis in two thousand and seven which is a year before our relevant time period and they look at it and say and realized twenty five dollars isn't anywhere close to what it actually cost him to collect and on paid toll we would submit that yes we looking at the two thousand and time period you're right you can't say these guys they don't have any data they still should know we are now eight years in  administrative fee of not more than one hundred dollars to recover the cost of collecting the unpaid toll as the district court found in its first motion for summary judgment you cannot wrap you cannot reasonably interpret that to mean anything other than it has to be correlated to the collection cost otherwise there's no distinction between the administrative fee in the fine i mean it's arguable i mean it could just mean this is what the other side argues it that could just be stating the purpose of cite how do you respond to the statutes they cite i think they're in a footnote texas statute that more expressly say it has to be tied to the cost of collection well as as the district point or point out well they could have used even clearer language than this is a court found that given the d of in the statutory structure within which this language appears you can't reach a conclusion otherwise you render superfluous the fine provision because this is you higher fee structure it's one thing if there was some kind of technical violation we're talking about the four way before waivers and abandonments one point three eight million now you're going to hear a lot and you read a lot in the briefs about how that wall that's numbers misleading because we did we waste some of that we abandoned some of that but the fact of the matter is there are still four hundred seventy two point five million dollars in administrative fees that haven't been away that haven't been banned  that they are attempting to collect ostensibly i mean up until the last time discovery was supplemented was the number we have in the record is the forty one million but that's just that's not a static final number and you argue that that they shouldn't get the benefit of this leniency that they they show in a number of cases because it might be inconsistent is there any evidence that any of your clients or any class members were not given the leniency options that some people wore i think didn't i mean of course people were paying the whole fee if that but the question is if they called in and said can we work this out was anyone saying they denied the opportunity to get a reduction when they tried to work it out no i don't know they i mean she got the invoice and she paid the invoice i'm not sure the invoice brought to their attention you've got the auction is calling and working this out certain oh sure but your brief in your brief indicates that this this discretion they're giving is not equally exercised and which which is always true discretion by definition then i carry on just one more point ok so your imposed twenty five dollars fees like like mr ritter raises for four thousand dollars worth of bill and you call in and they negotiate you down to eighty eight dollars thirty three cents ok wonderful they have now cut their overcharge from twenty five times what their actual cost is to eight times their actual cost and that's really the heart of our argument your honor it just isn't it isn't rational relationship to their legitimate