and welcome we'll begin with our st case six for this morning and after this st case we'll take a short recess to rican pose the panel our st cases number tw indiana law provides no require process for the cities to collect the toxins or for tax payers the child once in a while homeless and after the providers remove this action to federal or the district case based on the comedy doctrine isn't to kill it in the supreme court's lemon case but the district court ignored congress pacific instructions in the class action fairness act and the fact levon is a narrow doctrine that is designed to apply in specific circumstances and to remedy specific harms that are not present here levin is not a magical incantation that sends the state or any case involving state or local action fairness act in katha congress as it articulated in the legislative history and in the text of the statute itself intended to move class actions to federal work because state courts many st courts were mishandling them and typically with respect to out of steam defendants international interstate cases in congress specifically define when federal jurisdiction was proper and  specific more importantly here specifically provided numerated exceptions for when federal courts should not hear or class actions that otherwise fell within the definitions in the statu in so doing congress instructed the quirks to read the statute broadly quote with a strong preference that interstate class action should be heard in federal court if properly removed by any defend  addition to specifically telling the federal district courts when they quote shall have a regional jurisdiction of any civil case unquote the statute included for specific exceptions one of those exceptions exceptions the interest of justice exception is discretionary it gives the district who are thorny to dismiss a class action but it doesn't have to the other three or mandatory instructs the just report when it shall jurisdiction and those three exceptions speak to comedy like questions in other words the i think one of the one of the challenges with that argument that maybe you could address is that multiple courts including the supreme court you know have caution that statutes jurisdictional statutes need to be read with a sensitivity to federal state relations and comedy principles you know we've said that most recently we recognize that most recently in our sysco natural won opinion that way but that but that's in no way unique or going out on a limb the supreme court has recognized that many times over and indeed it seems though if you take your position all the way to the end what i worry about is is it even consistent with what's happened after the tax injunction act was passed i mean how you absent is levon even make are you asking our courts to recognize comedy principles in these exceptions for caf exclusive affirm tron or does your argument rely on for truth i think we're making alternative arguments  fee is a tax or not i mean it's certainly seems to be it's it's a statute that requires a fee to be paid to local governments it's an active by the indiana general assembly it's used at a local level including you know in general operating funds why why isn't that close enough well your honor i don't think this court has to decide the tax  acknowledge that and look you got to you've got a whole host of arguments or your client does i can tell from the motion to dismiss filed in indianapolis in state court that you know you've got statutory construction arguments are you in are you dr not in as a video service she got primary jurisdiction you've got federal constitutional issues in play this state tribunals is it not is fully capable of resolving all of those issues and it is kind of a matter in the st instance just construing this statute interpreted it what does it mean because you got to figure out it's anything passing a public right away it's cetera et cetera the point of the question is that the juda cation of the claim in all of the defenses would seem to immerse whatever court decides the matter into the fiscal affairs of a about your business is not a case in which the city is going to city you know going to be deprived of revenue during the litigation of the case that they otherwise would have if we followed the state tax process outlets this case is about whether indiana cities can collect revenue from these companies that deliver video through the city's right of way the district court properly exercised just discretion to remain on the case for two reasons  change that second the district court did not abuse its discretion because this is an equitable action that will require a court to tell these cities what revenue they can and can't collect out of comedy the supreme court  instructed federal courts to avoid becoming involved in these types of cases for over one hundred years the court properly exercised its discretion to remand the case back to state court now turning back to the st question should the court decide to even entertain at this by the waiver issue the answer is yes the court did have the authority to remand on the basis of comedy and the briefing defendants primarily rely on their own trial which is a nine hundred and seventy six case from the supreme court and therm tron involved it clearly impermissible were met there the district court had simply remand it based on an overcrowded dock and the supreme court when deciding that case did use some supreme court revisited that rule and overruled those cases and what kozel said and the issue was directly before the colleville court and the issue was whether there were non statutory bases or in longer and the supreme court said yes as long as it is a recognized basis for exercising discretion then there is still the ability to remand even on a common law basis and every court since and the a circuit reached that conclusion and milan and the th circuit has addressed that as well now and there briefing defendants pointed to this court's ryan case but ryan created cocoa and in fact judge farms case and that came after coelho addressed this issue a bit and it said that it recognized that after co hill the remand statute does not contain all the permissible frowns for  must be read with this a with just with the general sensitivity to federal state relations and as this court incest catch one recognize the calf that catholic is such a jurisdictional statute here here's the what's on my mind with your position what's the limiting principle of your argument state state and local governments impose all kinds of fees and taxes they have all kinds of license seen in permitting schemes in place for nearly everything garbage collection supposal of environmental waste operating a liquor store on and on and on and in all those fees could be viewed as some form of revenue and in a case like this where you have these companies they're basically just raising the coverage question are we covered by this to actually or are we not covered by the statute it can't be that l comedy reaches reaches all of those circumstances what's the limit your principle your honor there has to be a limit somewhere but it's our position that this is firmly within the center of  comedy and you know the reason why is the is that is because you look at the eleven factors and those factors addressed by eleven that in itself is going to apply some limited principles  we don't think that those factors are binding them but they have at least provide guidance to court and provide some limiting factors as a rational right how would you articulate the limiting principle with respect to a hypothetical statute that required the payment of of a fee to get a permit or a license to dispose of waste yet your honor i think that would be a closer call because at that point you're talking about something that is a one time payment for something good as you what is it in your view i i understand and appreciate that you want to turn to the facts of this case there's a lot there are a lot of legal issues that surround you know this particular dispute and what would help me use to it is to hear you articulate what you think the limiting principles are you are so i think the limited principles are found in the levin opinion by going through those factors and so if it is a liquor license for instance the court can go through those levon factors and decide whether or not it applies and it might be the case with a liquor license that if it's not a case about you know whether one company is getting a competitive advantage over the other and whether it is not a case that's involving a typical form of regular local regulation then maybe that's outside of the eleven context but you know i specify the problem with just rely on the eleven factors though it seems to me jurisdiction xenophobia having indiana courts interpret indiana law concerned by your national corporations that a state court might not have the resources the federal court would so is there a camel's no but i think i would go back to the point that this is not a case that is at the outer boundaries the th circuit in a case involving direct t v already looked at franchise skeets and they already a franchise fee and valving video services under both carolina law and they came to determination that that is exactly the type of case that falls within let in comedy doctrine and should st be decided by state courts and you know the cities believe that indiana should be accorded the same respect out of comedy that north carolina was accorded and that case so they guess there has to be limits but we think this is squarely within the eleven company doctrine because these types of fees are about something that is within the traditional traditional regulatory process we're talking about what fees the cities can collect for it your position that municipalities such as we have here bring a unique perspective then and which would be reflected through both the in the federal system yes there are those as was noted previously there are a number of decisions that need to be made in this case there are constitutional issues there are questions about the reach of the statute that no court has ever interpreted before and this this case was brought in indiana us commercial court for that reason the new commercial court is a specialized work to deal with these types of disputes and it is it is more aware of the legislative preferences of the indiana general assembly which was the of the legislature slate the legislator senator that passed this and this indiana act and so when making all of those judgments and there and there are remedial options in play as well you know defendants for instance of argued that it would be impossible for them to comply with local programming requirements under the act or pay channel requirements under the act and it very well could be the case that a court will have to decide whether whether the defendants don't have to comply with that part of the act but maybe they do still have to pay the fee so there are a number of questions in play that need to be answered and again takes this back into the th context because this there are just so many more questions that the state commercial court will be more familiar with than a federal court and of course the state court won't be hampered in any way by the tax injunction act when it comes to constitutional questions that are at issue and i would i would also like to you know address the concern that  mr charles raised about this being brought directly in state court the d a ended indianness regular tory commission as a place a very limited role in this case and that it is i mostly a ministerial role the regulatory commission as long as the paperwork is provided by the companies the regulatory commission is supposed to provide the state franchise franchise to the companies but the regulatory commission its role isn't to decide questions of law about the breach of the act and it certainly isn't authorized by the act to decide constitutional issues and so it's up to the state courts decide those types of issues and it was the companies that were completely ignoring this act and so the cities then brought this action and state commercial court to resolve this dispute can decide to breach at that point cut the other way and here here's what i mean by that comedy whether you're talking about leaven or mcnairy or you want to go back even further one of the big concerns with that of course is is interference with state or local fiscal operations most especially in the area of taxation and so when you say how the regulatory commission really doesn't do much here they hand out certificates they collect the fees that way doesn't that suggest that  concern about interference is actually quite minimal that what you really got here is you have a question about statutory coverage are they include are they not under the statute a federal courts sitting in diversity answer questions like that all day on your honor i don't think so and the reason why is because comedy wasn't as wasn't born as much out of procedural concerns but it was more borne out of subs substance concerns and so the big concern is that when you have a case that is going to require a court to decide what revenue local government can and can't collect well that impulse principles of federalism and a recognition that we have a union between the state governments and the federal government and the federal federal courts should avoid deciding those types of questions dictating to local governments what they can and can't collect so long as federal rights are preserved i don't know and there's no i don't say that that that's the historical pedigree of the doctrine in latin itself the court  explaining comedy principles relies upon that concurring opinion from perec as that justice brennan wrote in its in footnote two in the whole footnote is about procedure yes your honor so one of the things addressed  supported it is procedure as you go back to the mcnairy case which was a unanimous opinion mcnairy didn't involve the procedure in fact that's one of the arguments that was made an error a comedy concerns didn't arise there to decide whether or not that tax can be collected and so it mcnairy shows that the concerns are just about the collection process but there are about the substantive issues of of a federal court reaching out in a case like this and decide and picking winners and losers and deciding what collect what fees what revenue local governments can and can't collapse and can i ask you a clear question on a different front i just i want to make sure that you have a moment to address this and if it cuts in your time we can give you an extra couple minutes for the same courtesy to the other side what arguments what issues do you think your adversaries have waived here yes your honor i'll be happy to address that question so i think the entire st question presented which is whether or not therm chon applies in this context and i'm john was never  even cited in the district court for the briefing below and defendants never argued that the court blocked discretion instead they they made it in the entire argument that that it was a matter of discretion so i think that question has been waived with the end of the nd question presented it's a little more nuanced defendants never raised the damages issue the damages were all below they never argued that comedy doesn't apply and damages questions  and then they also need never made the pending state proceedings argument as well they never argued that comedy doesn't apply in pinning state proceedings they also didn't go through the eleven factors of course the district  analyze those eleven factors and this city's acknowledged that the court has the discretion to to go through those those eleven factors since the district court relied upon those if the court house no further questions to just end by again citing the four circuits direct t v case which was again a franchise fee involving the delivery of video services and there the the the th circuit found that that was the type of case that was within the comedy doctrine and that was best decided by state courts and we ask that indiana be shown the same  same respect as north carolina and that the court affirmed the district courts for man because it did not abuse its discretion and doing cell thank you plane doesn't mean it's not a claim of money and that is important for the application of black and you know it is true that we did not make this argument when these terms below but this court has discretion is recognize canary i mean justice o'connor when she wrote that opinion just didn't by happenstance include you know about that carve out there so can you would you mind addressing that mr  that the cities were prejudiced in any way arguments in the quality of the briefing the court will take a brief recess before we reconvene the panel and proceed to our nd case thank you thank you