case is not this case is not a challenge against the administrative procedure act of california this case is not about the particular facts that affect the appellant's in this case the facts were pled to give the opponent standing to mount a facial important reason i cited it was show the third balancing test of the math test and that is the cost of adding a couple more instructions an address or email or something where so many receives one of these orders knows who to respond to zero for the state well that i guess the question i would have is it seems to me that in the supreme court city of west covina vs perkins that they have already stated that you know there is no need to be specific in terms of all of that information that you see here because the individual citizen can sort of determine how to go about these processes what is it about taking property what is the chance of erroneous deprivation in that case that's the that's one of the elements on the mouthy eldritch there's almost zero because the cost of the police have to go to a judge to get that search warrant and once it's in place they are taking that that they are taking the property you know that this property is going to be taken in this case you get notice from the state that's on a piece of pleading paper it doesn't give you an address it doesn't give you a phone number it doesn't give you an email address it doesn't give you anything it's a piece of pleading paper with charges basically in order in the city of west covina there was contact information and i would say this case more and more mirrors  memphis light in the fact that there is nothing out there if the state has not said one word of where anyone in the public would go to find how to challenge in order because it's not out there or if you google it or you try to find it or you go to the local library the state has had said nothing about how you would go about challenging an order do i send it to commissioner dr pilot or the ministry of procedure court so adding a telephone number something to the web page or the notice would satisfy your claim i don't think necessarily that would be enough i thought it could but that's not that that's not what's before the court for a facial challenge doesn't matter if there's a cover letter if for a facial challenge you're looking at the statute there's no regulation or publish guidance document that was cited that requires any notification at all there is in this the state is not required to give notice of the commissioner's action what they're saying is that the orders notice but this case you can look at the order yourself we don't have to guess or make a hypothetical of what the notice is that they're sending out facially what they're sending out is is unconstitutional because it doesn't give enough notice so if you look at every case of the state has side it there's always been a previous proceeding where  someone has gone before a court or in ministry of court and then they challenge they don't like the fact that they want thirty days to to challenge hearing a ruling but in this case after thirty days that order is like it's handed down by the supreme court there is absolutely no way to challenge it no way to go around it if you do not request a hearing so that's why it goes back to you have to do the balancing test the court has to look at the three elements of matthew's the eldritch and say is this notice sufficient and i would say in nasi you have the court saying this is not this is not sufficient you need to have more information just as memphis light by the supreme court and supreme court said in perkins memphis light is still good law and if there's not a public resource where someone can go out and actually figure out how to challenge this then you have problems now these orders have been issued for anything about whether due process notice is actually being denied here no i don't i think i think it's the fact that there is this the district court did exactly that what's never been challenged so it must be good luck but that is not the the test eldritch test with maleng has to be run on to see the reasonable nuts of this and in a lot of ways the state sets us up because they don't want to get these things challenged they don't want to go to hearings and that is that it is and what and what on what you are live for that statement well because they don't tell you how you can challenge an order and after thirty days but your complaints will you listen to me please i'm sorry let me finish my question and then you astrid ok my question to you is what do you rely on that says the state doesn't want you to answer that what what evidence do you have that my evidence is the fact that if you want to challenge an order there's really no way to figure out how to do it for the average person and i get that point but  where does this where do you find some of these as the state doesn't want you to do it because this is the only statute that count that the commissioner this is the only action that the commissioner can take that is not challenge in a judicial proceeding every other action the commissioner takes is pacifically challengeable by a judicial branch aren't you challenging this i am and this is a judicial proceeding but i sensibly this would be s it isn't that correct or not challenging whether your client should have been issued the order on the merits that whether his offering qualified as securities or not right i am not may we are not making that challenge and i would just point out that this is a case of first impression for this court if you look at the states brief on page ten they say this matter is very clear cut and dry and what do they cite their lead case is an eight case that has that is has been ruled on before and i think part of it is the harshness of the statute you have to look at the harms that happen you get one of these these orders against you and then the day where we have scams and frauds you get this order what is the average is average person take it seriously and i know that the very reason they have  because people are being defrauded there's nothing wrong with that right no there is not ok so what you're concerned about is that when a person gets that they don't know what to do you know it's more than that it's number one that the commissioner has this  the commissioner and the only one that i'm aware of where the commissioner can go down and take an order and file it with the court and now enforce it as it's an order from the judiciary branch so what is a judge do with uncle i'm sure you know this but  challengeable by the commission or both of those i would argue can be challenged so this can be challenge it just has to be challenged within the by asking for a hearing within thirty days so you can challenge the merits of the order if you do it on time isn't that correct yes if you understand that the state is taking actions only after the thirty days has run and there's no ability to challenge it on the merits and you can be held liable for contempt correct it's a statute of limitations and we have those all the time we do but we don't have a statute that so harsh that you can't go back and say what if there's a mistake your honor what it what it what it what about an appeal as you very well know you have a relatively short  time within which to appeal of final judgment of the district court if you don't do it in time you're outta luck it's jurisdictional and almost every instance that may be pretty harsh but that's what the congress decided they were going to do it right that's correct and your o are would i would disagree with that and notice that you want to challenge issue got thirty days to do it do it if you don't do it then you got to have a default basically ok and i would say to that this contest in other words can you get a hearing before the commissioner before this order is issued or did they contact the person the person before the order is issued they contact them with the order of the only thing to give them the only thing required by the so you whoever receives the order would have to figure out how to challenge this and where to quote unquote file the stock of this challenge because that is the verbiage that is you know so there's no hearing of any sort or any contact with the recipient of the order before issued correct the order is issued and it served on the person it is there any standard for how the commissioner makes the decision to issue the order that the statute itself just says if in the opinion of the commissioner the sale of a security is subject to qualification our person has and i qualify procrit ill or is there any standard set out in other parts of the code for how the commissioner makes that reaches that opinion or makes that the morning morning your honor system it please the court my name is craig rust and i represent billie's the california legislature enacted the statutes in question to allow the commissioner to act quickly to stop unlawful conduct and to protect the public from fraudulent or deceptive financial schemes as the court noted those statutes are constitutional on their face if they are capable of being applied in a constitutional manner not only that's really what he's trying to do a case it was not just the dismissal refrain order but as the court can see from the record starting on page one fourteen i believe d b o this file of what was sent to the sent to mr sureness is in the record in includes a cover letter i think as your hon or mentioned that provides all the things that mr fairness is asking for the cover letter says see attached statutes which which are possibly not that helpful to people who aren't lawyer is does it say here are the steps you have to go you you do that or say that it has to be done within thirty days i believe it says within thirty days your honor but even if it did not it not only cited the statutes under which the commissioner was acting but it provided copies of the statutes  your honor mention the west covina case that is all that is required under the due process clause if we were to agree with palin this case commissioner be faced with a problem that no matter what you say there might be something required in another unusual case that if you suppose it would be found and out of that's correct ron that's why the proper vehicle for this type of challenge would be you know as applied where in the record does it say thirty days distant refrain order you're being serving your individual capacity as a representative of the company corporation's codes two five five three two in financial code to to save on to so forth the authority of the commissioner to issue such order and your right to miranda mason so there's now thirty days or any steps but they give a number and if somebody called her and a mason she would give them a step by step explanation of how to challenge the order and she certainly offered to answer any questions that mr sureness made ok procedure and again that the copies of the statutes were provided with a cover letter the statutes have the thirty day limitations in them and that was all part of the notice that was given in this case so the d b o was not hiding the ball in terms of what they need to do or what the time limits were that was all available to them and the notice provided pursuant to that cover letter and pursuant to the administrative order went well beyond what the court required of the supreme court required and where you relied in your brief on baffert versus the california horse racing commission i think to support your argument that the administrative procedures process was sufficient  review these types of challenges but isn't that case distinguishable because as i saw that case the plaintiff was not raising a constitutional claim to a regulation or statute and that was made clear by the court and then secondly the petitioner there his racing suspension was suspended before a full adjudication occurred and i think that was similar to i think it's continually versus longer and there was a mechanism to suspend the imposition of here would be the desist and refrain order before any sort of interest was lost how do you how do you address those distinctions well your honor the citations to baffert and other cases you mentioned were simply to show that the california administrative procedures act provides at an adequate or i should say a meaningful opportunity to be heard in a meaningful manner that goes more to the process available to challenge the order of whether those proper seizures that are in place are fair when the person challenge the order to get a fair hearing on whether or in this case again post about post deprivation the provision of post deprivation remedies is appropriate answer certain circumstances where the state's interest is sufficient to justify it that situation this is one such instance the commissioner had to act swiftly to stop mr sureness from selling what it viewed as illegal securities and an unlawful manner and to protect the public so that interest in protecting the public can justify the immediate suspension of  money being asked for the kind of alleged promises being made and the like so my question to you would be usually that kind of information would either come from an informant or based on dealings with the alleged offer or of the  unqualified securities does the record indicate in this case whether the commissioner had previous dealings with the addressees system refrain order newspaper or usually somebody brings to the commission and that's my question is how did the commissioner know about this to the degree that there was previous dealing between the commissioner  and the alleged for or of these securities would of course further undercut the idea that there was due process and they didn't know what to do but here that you're saying that the record doesn't indicate whether there was anything for the commission that have to investigate and what standard is required before you can issue one of these orders i didn't see it in the record or reference but perhaps there's a thing there may be your honor i can't speak to that as we say ok so you don't know the opposing counsel says the commissioner saw it in the paper and without any investigation just issued one of these orders i believe this isn't a friend or mentions a phone call by investigating some of these these claims and i guess along those same lines where in section two five five three two does it provide the commissioner with any authority to sort of suspend the desist and refrain process is it just sort of a discretionary process i'm sorry i'm not sure what you mean by suspend the disses refrain problems as i mentioned before and as you've pointed out once the desist and refrain order lapses it becomes a final judgment but in that process if no one challenges the notice is there any way for the commissioner to re evaluate if for in days to do so so if they miss the thirty days there's no basis a way to make a collateral challenges at right to the factual basis for the order i don't believe so your honor and ok so you're done if you mess the thirty day window statute allows and makes a challenge within thirty days they can go through the hearing and then they can if they don't like the result they can take it to court the question is if they did that's that so there is a a order issued on the opinion of the commissioner and if the recipient misses the thirty day window it's unreviewable and unchangeable it's written in stone that's that's correct or i mean that ok but that is that is perfectly in line with the court's previous boss president i mean would you address mr asked her contention in his briefs i'm curious about california commissioner's interests are they any greater than the f c c because the f c c scheme seems to spell out all of these provisions of notice an opportunity to challenge why is the commissioner's interest any different or any s section eight day of the securities act as an example are the constitutional statute but the only apparent offer that is that the statute uses the term notice that that's just a superficial difference between the corporations code which require service of the order both of those documents are rick are designed to put the effective party on notice of the pendency of the action which is what the due process clause requires when you call that notice or service of the order the effect of this is the same that part it may be your honor but even the section the war look at today require service of the order which notifies the person of the pendency of the action against him that is the due process standard as articulated in the lane  bottom line though your position is that west covina versus perkins is the answer what the commissioner did in this case complies with that this is a facial challenge the plaintiff is unable to show that in all instances the statute is constitutional right that's correct your honor and just one final point to further address your question your honor at the about the fact that this is set in stone in the person doesn't have any remedies  thank you a couple of quick points number one i think the court has to look at what section two five five three two actually says and that says the only thing the commissioner has to do is serve an order she doesn't have to give anything else and the court has it in front of it what the order looks like is that constitutional is that does that give due process to the recipient just that order that is why the f c c says noticed and the order now i would but let me ask you if you're a member of the legislature right now what do you have to put in this statute to make it constitutional under your perspective under my perspective it's very easy number one you either add to the word notice or you get rid of  insulating the commissioner from judicial review because the problem is is what happens if she's mistaken who sets the time bar on one service starts and when you have to get your your order and the commissioner controls all of that so the commissioner if the commissioner is mistaken and you within thirty days you go there and you have a hearing you don't like it then you can appeal i think initially it goes to an administrative law judge and if you don't like that then you can appeal it to the meaning ostensibly you can can you do it yes you can do it but the statute bars that to the idea that somehow the state statute could bar an action in a court provided to the supremacy well protect people everywhere well that your honor is why we're part of the reason you're making a facial challenge so you asked me what i would do i would resist i would remove that section or i would have put the word notice in there and then the commissioner could decide what kind of notice what she should give and then if someone feels that notice is improper they could make it a challenge this is actually say that you cannot challenge it in court i thought i just said it becomes a final my recollection is that two five two five five three two says that notwithstanding a section and that section makes every thing revealed will by the courts or an administrative  and the court stands adjourned for the week we know we have some visiting students here the court is going to go in and have what we call a confort for we will decide these cases but in the meantime you are really lucky because our law clerks are going to talk to you and regale you with wild tales and then we will come back out and talk to you when we finish our conference so thank you all and the court is a