morning your honor someone may please the court my name is brian perry md i represent the appellant american bankers this case is about the outsourcing of public justice for private gain my in the state of california as a private attorney general all over the place there are private is what's so novel about this this case is exceptionally novel because it is being brought by a public prosecutor a district attorney who is ordinarily associated with bringing criminal cases he's a serious thing claims for civil penalties what's novel about this and what distinguishes it from other private claims under the u c l a or other california consumer protection laws is that only a public prosecutor can bring a claim for civil penalties under this statute but there are lots of statues for that's not the case so i'm still not sure i understand what what's wrong with the state giving authority to pursue civil penalties and putting that authority in the hands of a private attorney sense several statutes do that indeed federal statutes can do that what's wrong with that your honor is that in this case you have to look at what the history of the u c l civil penalty and public law enforcement actions are they have historically been treated by courts within this circuit and courts in the california state system as being  here more akin to a criminal in forstmann action and i don't know what would which other cases are or statutes that in watching way are they different from teton actions that also allow a private person to seek civil penalties right we address that in the br to action is this court pointed out i think it was in the kelly case is fundamentally different from a public law enforcement in what way in the way that a private litigant is actually directing that litigation it is not in the name of the united states so the same way this is in the name of the county correct but it is not wielding direct government power as is being wielded here and the claim belongs to the federal government the d o j could step in at the outset if it wanted to most of the proceeds would go to the federal government how is this any different well this is this is different because the proceeds are not going to state coffers that the proceeds are going to line the pockets of the prosecutor himself well that's not true some of the proceeds would if they win some of the president go to the county and some of the proceeds go to the law firm that helps the county and in key time it's exactly the same some of the pro to president of the united states government some of them go to the private person who brought the case i think the fact is that there are certain class of civil actions where we don't allow for you you know one is to allow in this instance but you're still not telling us why this particular statute in this instance is different from other instances when we plainly do allow private parties to prosecute let me try a little bit harder your honor this is different because  civil action or action for civil penalties is itself a different sort of animal the court has said as much in cases like intelligent or so are you making on a state lucky i mean maybe you could say as a matter of state law that the state didn't intend civil penalties to ever allow any private in involvement but that's not a due process federal question that we can't answer i mean that's something you've got to take up with the california courts right and you're starting to sound like you're saying like this isn't what the california statute meant but you don't even have a claim in this case like that no you know we have a federal due process claim in the federal due process claim arises from the fact that courts have said in certain classes of civil litigation for example the clancy case that we cite in the briefs in certain classes of civil litigation there there cannot be a direct peculiarly interest by the public prosecutor in the outcome of the case what cases that it's  clancey know clancy was not i will admit was not a due process case but it cited u s supreme court due process and the alice's is functionally identical for these purposes but it's well first of all even if it did say that we wouldn't be bound by it here right i mean it's a california case and even if it were for a persuasive value i don't i think you have a hard time saying that they were reaching a due process holding when that's not what they said they were doing well the marshall versus jericho case it's a united states supreme court case is also instructed bout a criminal case it's a in a case that was a civil penalty i'm sorry you're right but but it held that it wasn't a problem held by it was a problem but only because the public prosecutor in that action didn't have a direct interest in the outcome of the action his office the department of labor a division of the partner labor was going to receive the civil penalties or a portion of the civil penalties but the court said that it didn't matter in that case because he was paid on a fixed salary that is the opposite of what we have here but the county attorney is paid on a fixed salary right the county attorney is but his special assistant district attorneys or to recover thirty percent of the civil penalties they will they have a direct interest in the outcome which is sort of what happened all the dipak a litigation couple decades ago which was for millions and millions and possibly even billions of dollars and i haven't heard anything about a due process violation coming out of that those those cases are distinguishable your honor those cases telling us about a lot of cases understand which of all i'm having trouble for now what's so unique about this that the rules of contingency recovery which apply elsewhere can't apply here as a matter of due process those cases are distinguishable your honor because they deal with non punitive measures those were compensatory damages restitution ery measures this is a  pure penalty case they are not seeking restitution this case they are seeking purely to penalize and that is that but if that doesn't i mean you're better off that they're not also cigarettes at restitution right i mean they could be seeking both and i'm not sure how that would affect your due process claim well it affects the due process plain because if the point of the lawsuit if the primary if not exclusive point of the lawsuit is to punish the defendant that gives that that makes the case sufficiently analogous to a criminal action now i'm not saying that it is a criminal action but i'm saying it is sufficiently analogous to what kay says that i mean he tam has civil penalties and kelly says there's no due process problem with letting a private letter get litigated well the marshal jericho case out in russia versus jericho the court up to said there's no due process problem and said we're not going to figure out what that is i mean we don't know that but the opposite would have been right they don't say if these things had been different there would be process a due this problem they just say all these factors were looking at them and there's no due process problem the marshall vs jericho case said that there is if there is a scheme injecting a personal interest financial or otherwise into the enforcement process it may bring irrelevant or impermissible factors into the prosecutorial decision and in some question context raise serious constitutional questions now but then they don't tell us what that context is and our court has said that the key to have actions are fine and so i'm confused how we could say something different here the court did not the marshall court did not specify the exact circumstances and in fact it said we not mean you not say with precision what limits there may be on financial or personal interest of one who performs a process and may be limits that's all martial tells us and the marshal case doesn't require him to go on to say what the limits are but then to say for sure there are limits it's a pretty thin reed ok some case has to be first but you're not giving us a lot to work with the tell us why we should be first for this kind of climbing the very next sentences in martial talk about why the court decided the way it did it said that the there was no issue in that case because there was a fixed salary but you're not saying anything different than judge said or that i just said for that matter the court recognizes maybe there could be a problem at some point we don't have to decide that because they're certainly not a problem here so that really doesn't tell us anything about whether there really is a due process decision makers having improper influences judges not nearly as much with regard to prosecutors those the suggestion out there but the notion that of private attorneys general is not at all novel especially not in this jurisdiction so i'm having some trouble figuring out what it is that supposed does not prohibit all that stuff to which seemed pretty clearly established and the federal false claims act which you pretty clearly established in our court and kelly says not a problem what is it that so different about this one that suddenly we should reach out decide there's a due process violation because again returning to the unique nature of the u c l civil penalty action courts within the circuit courts within the california state system have said that it is more akin to a criminal in foresman action i don't think there's any there should be any dispute that a criminal prosecutor cannot have a direct interest in the outcome of federal prosecutors can't have direct cuny area or other personal interests in the outcome of their prosecutions and further we care in this case anyway i mean their peers to be a factual finding by the district court that the district attorney himself ultimately controls litigation and i don't see that being challenge in your brief is clearly erroneous we did challenge it in the brief it is the last section of the brief your honor and i would make three points about i don't see it making any argument that he did not have control it mean that the sections titled the district attorney's purported control is irrelevant to the categorical rule so you're talking about law i don't see anything here maybe you can point me to something that challenges the district court's finding that the ultimate control was in the hands of the district attorney i don't see anything here the stablish that's clearly erroneous your so if that's factually the case then why do we care if alternately it's the d a who doesn't have a direct factual ones interest is the one who calls the shots we care for the same reasons that we should care in a criminal action if this case sufficiently analogous to a criminal action again we would not ask if a supervising district attorney in a criminal case has adequate control over his assistant district attorney if the district attorney has a direct personal interest or financial interest in th because because your honor the civil penalties here have always been analogous analogize to criminal in foresman actions to criminal penalties that doesn't mean it's correct what makes them like criminal penalties it makes them like criminal penalties because they have the sole and exclusive purpose of punishing not has no compensatory no remedial purpose at all that's what the california courts have been very explicit about with respect to u c l civil penalties is there any power that the private law firm has as a function of working with the county that they wouldn't have if they were representing a private plaintiff like an extra subpoena power include wiretaps for example a special these district attorneys are ostensibly i mean they're there in name district attorneys they're not in a civil case they can use these powers you're describing yes sure ah california riveted wiretapping all the other so you got anything that says that in a civil penalty case somebody has conducted a wiretap yes that's in the it's either in the business in professions code  the government code i apologize for not remembering which however it is the fact that the civil penalty the civil penalties we should return to because that is what distinguishes this from the ordinary private litigation if we don't agree with you i'm just interested in i mean can you support the proposition that they have powers beyond what a civil let it get would have is not working with the county it would be interesting to know if you actually can have a cite for that i can do that through supplemental brief in your honor if the court would like that  in a civil case that a civil litigants doesn't have that i didn't see that in your brief so if you do have that it would be interesting to see that do i have permission to file a rule twenty yes thank you i see my time so i will give you two minutes or about off terry thank honour's may please the court role in tell us where baron and bud on behalf of appellee let me just start by saying that if i have special powers beyond the powers i normally have in a civil case it's news to me it doesn't come with a cape and it doesn't come with any special powers  constitutional rules are reserved for extraordinary and rare circle the question that there's a constitutional pickard to judges of course but even there your honor i would argue that the implication of a bit of a biased  ary raises concerns are far greater than the ones here but even there it's can textural right the marshall court was a perfect example of that where the court would not go so far as to say that an administrative law judge who was perceived to have some institutional bias because penalties that were levied could come back to the department that employed that that but they basically said he doesn't really have the bias i mean they gave all these reasons why no one can even reasonably think there is a bias here right right and they said that is as a judge but what was interesting is they said quote the constitutional interests there are not to the same degree implicated if it's the prosecutor and not the judge who's offered the incentive recognize there prosecutorial question and the young court is a perfect example of that it's an ethics issue because constitutional rules are reserved for the quote out of bounds congress and the states are free to pass more rigid rules to address that and that's typically done through rules of professional conduct and ethics rules and the young court indicated exactly that the door relationship there of the private lawyer representing leave a time at the same time prosecute individuals who are alleged infringed that person owed to duties one to the client and one to the government in prosecuting those are ethics violations that doesn't rise to a constitutional level there is nothing about this case that warrants that type of of conduct they keep labeling this chua's i criminal as if the label alone gets them somewhere no court has ever held that a quasi ikrima nal action warrants a constitutional rule like the one they're seeking here now what about the penalties does that does the fact that we're seeking penalties in this case change anything and i think it's first important understand the character of those penalties because your honour's of addressed this in the boeing case the mere fact that it's penalties here the legislature is expressly characterized in a civil in nature and they are intended to further consumer protection goals a neutral judiciary is a significant check to prosecutors so you just told us that young is really about like ethical rules but the supreme court seems to be telling us there's something beyond ethical rules that there is some due process limit somewhere well and i think it would it would depend on the context right it's hard to come up with a  bargain surely if a criminal prosecutor was offered a bounty for for prosecuting or for obtaining felony convictions or something you might argue that type of conduct gets closer to the extreme out of bounds right but but a prosecutor who is paid in a department that collects penalties not so much prosecutors are not entirely neutral they're intended they're supposed to be zealous advocates as we all but the law firms here get to keep the money so it's not just going  fund of the county or something they get to keep that money and buy cars with it or whatever they're going to do with the portion of it in furtherance of the consumer protection goals which is what we're doing here so how i mean what is the difference between that and the prosecutor who i mean it seems like you're willing to say a prosecutor can't get extra money for having felony convictions so what's the difference i think that where you have other one is neutral prosecutor in this case someone asked the question i think it was judge clifton is there any allegation  hereford here is otherwise disinterested not only is there is it not only are there no allegations appellant declined the district court's invitation to allege facts to address that issue and so if you have a otherwise neutral da who was not allege to have any direct financial outcome in this litigation maintains all the discretionary control maintains the decisions about how to set all the control of the only different between the prosecutor seeking the felony convictions and the civil penalty thing because if that's it then maybe we have an issue of i mean at least as a general rule we might have to look into whether there really is control i don't think the conduct here rises to a constitutional rule but if we're down in the state law analysis of looking at clancy in santa clara i think the distinction there is where you have a government a private lawyer who supplants a government lawyers duties that's clean so i guess i don't know that we have to worry about clancy in santa clara at all i mean if so but if as a matter of due process it sounds like you're saying you're willing to say that a felony conviction with a bounty by a prosecutor is a problem and so i'm asking if your answer to the only difference here is that we have a prosecutor is not going to make money who's controlling it then that starts to put a lot of weight on control and i'm wondering if that's you're on the distinction you know my distinction is whether that conduct isn't already subject to ethical governance through state law rules that is doesn't preclude the possibility of a due process violation and maybe there are lots of things that are ethical violations that doesn't immunize them from your due process sure but that isn't the those aren't the facts here they're asking for a constitutional rule simply because we are assisting da hereford in prosecuting it you see all claim there's no allegation here that simply by virtue of listen i'm flattered that they think having me in the case is going to be worse for them but in what way well though they don't think it needs to be brought otherwise well that's is this provides motivation to the d a who doesn't want to divert resources from his own office but if somebody comes up and says i'll do it for free and maybe the county is going to make a buck off of it why not there's no evidence of that but i think it's and then they take a lot of evidence persuade me that's what's going on here i mean why shouldn't that be a problem this is going to cause lawsuits to be brought that otherwise wouldn't be brought think the amicus briefs by the city of county of san francisco in santa clara show you how this partnership between private attorneys and public lawyers who remain involved in the case and in control have great benefits which county is are you representing here truly county and where is trinity county it's up north near the ones in the population of trinity county fifteen thousand much likelihood they're going to start bringing a whole lot of law suits within a the d a s office of what size but your honor i mean take a look at some of these examples opioids i mean it seems to be the headline of the month there are certain small counties where events like that are particularly impacting it doesn't that it seems to me you seem to be resisting the proposition that in arrangement like this can cause lawsuits to be brought that wouldn't otherwise be brought that seems to be too obvious to me to avoid but you seem to be saying no that's that's not the case i mean i represent the true county d a i pay attention to which cases are brought on behalf of which d a's and state of california i don't see the floodgates well could the trick i mean i have difficulty imagining the trinity county d a taking on the case that you've taken on here even though your firm brings lots of resources to bear that his office doesn't have unless it's going to stop prosecuting its usual work right so that the concern here is that will it cause cases to be brought that otherwise would be brought i think the answer that is yes now that's a different question whether that translates into a due process concern but as to the first proposition i find it hard to avoid the conclusion that in fact an arrangement like this will cause more cases to be brought but cases that have to have merit right now in this these guys suggest it is simply because they're in the case the they're going to get hit with a penalty that we want to prove they've got to defend the case they'd rather not defend the case well even if they win i mean the lawyers may like the idea defending the case even if they win but for sure their clients don't so so it's the question for me is does it constitute a due process violation if it is made easier for the county to bring a lawsuit that otherwise wouldn't bring i don't think that raises a concrete pervasion of the liberty interest it's not hypothetical so even accepting my factual promise which i'm not going to require to say yes to but given my factual promise you still don't see a due process violation  prepared to a get into the santa clara plant see spectrum but i don't think you need to hear from me on that other than to say that ok very good and i'm that case i thank you for your time there's a special place in heaven reserved for lawyers who give us back time we don't play with we don't blame people whose time we take and that's certainly been the case for mr perelman we have kept him busy will probably continue to keep him busy but there's nothing wrong with sitting down and we stop asking questions i have two very brief  first i want to get back to the key to him because i think that's that's weighing on your honor's minds let me allow the kelley case itself to distinguish public prosecution from keep him actions a quote it is not at all  fulfill the same type of public duty as government prosecutors furthermore the fact the relator is suing the see you soon in the name of the united states does not mean that they wield the governmental powers and therefore over the same type of duty to serve the public interest as government proxy isn't there a site there that lets the whole bunch of criminal law enforcement powers that you say you have but he says he doesn't have and that's what your letter will be about well they they wield governmental powers of a variety of sorts yes and  we hope to show in the twenty jail letter that they do wield powers beyond the civil penalty power which is of course again endemic only to public prosecutors in california and the kelly case continues ketone relator is pursued her claims essentially is private plan if this therefore that it did not implicate due process concerns keep him actions are completely different from government prosecutions and this is a government prosecution and my  it's not it's not designated by california as a criminal case that has criminal implications it has caused a criminal implications it has the same sorts of criminal sanctions that you would see in fact the supreme court has said that the