what sagan our county is doing with its underlying contract with m m r and the inforcing ordinance is something unusual in the state of michigan or in the country generally and it's not city of detroit does and city of lansing does or to contract with a private sector it's a question in their very funny case because in one sense there's no doubt we have a dispute right so in that sense there's you have a position about this they have a position so it's hard to deny a dispute i will say it's kind of unusual for cities or states to launch deck actions to say what we're about to do in this in foresman action we can do that's yes that's not how this usually works usually the way it works is it becomes concrete by saying forcing the ordinance given that you know you had a problem a judge bergen you probably do want this dispute resolved what is the downside with saying to them no more were enforcing it starting next week and at that point i think judge berg would agree you've got a concrete dispute and as applied as you saw turn on the risk of trouble damages in fees is that what's going on really does your honor so i'm troubled damages i think there's an exemption for cities and counties so that's not so that risk is gone and i think it attorney's fees don't apply in any trusts actions valving cities or counties so if i'm right about those things what's left and i'm not sure you're right about the has more control than you might think over the ambulance system in the sense that it controls the dispatch i mean i still don't have an answer to my yes i want you to he answered questions st in size we want this resolved we do wan t it resolved so we could we could write a we could have one of our sheriff's department you know vehicles write them a ticket when we see them doing a transport or d you know an emergency call there didn't go through the nine eleven system which we control we could we could write a ticket we could go to district court we're ordinance would be enforced but the district court in the state of michigan would not have jurisdiction over the antitrust and th amendment claims which are really the heart of stats claims they they would have jurisdiction if the other side raised it as a defense if they said you had enforce this ordinance they could raise it they couldn't get damages for it but they could say you can't enforce this because it violates the sherman act my understanding and certainly this wasn't part of judge burke's decision but my understanding is that the state courts of michigan would not have jurisdiction to resolve the sherman antitrust action that's exclusive within the federal court just that but we all agree they would have already to resolve the federal constitutional claims right yes the courts can do that that the th started by mentioning that and that's wrong they can resolve that absolutely and as to the any trust that's just a question of whether it has to be removed to federal court and if that's a peril to you that's really amusing because you're in federal court you want to be in federal court so why are you bothered by trying to use the declaratory judgment your honor to efficient you know one of the factors under the trunk case in the paradigm is will the action resolve the controversy and the federal court is the only court in our opinion that has the jurisdiction to resolve the controversy but why can't some federal judges such as judge byrd be a little skeptical about people threatening each other but no one willing to have the courage of their convictions you threaten to enforce but you never force they threaten to sue going back to two thousand and thirteen they still have been sued is in a federal court allowed to say guys this is all talk no one seems willing to do what they say they're going to do it's six years later we're going to wait to you do it and i mean that's what judge berg was saying  n i'm puzzled by why this is either a real dispute in which case it's just so simple to make it concrete or maybe it's not a real dispute in this is just all talk well certainly the county has the kid  ordinance is just a de minimus sort of that could happen we can just let it go it's sort of the minimus matter but isn't that the whole crux of the matter isn't that when you sort of put your money where your mouth is and actually enforce the law well we view the declaratory judgment action to declaratory judgment statute as a way for the county to inforce the law your way to do it trying to find cases where states or cities mean it quite often happens when laws are passed this is this example so think of abortion for example a state or a county wants to pass an abortion law people com while we're still in the next day i'm just not aware of situations where you can pass a controversial ordinance or law and the governmental entity can pick the form for deciding whether it's constitutional i don't think that's you shall it happens it judicially is the reverse that will allow that allowed deck actions without incurring damages by the person whose would be the object of the enforcement action that's you but tell me i'm wrong tell me nonono judge that there's this whole line of cases where cities and counties and states have been allowed to go to federal court to establish but pre enforcement that the thing they're about to do is constitutional or complies with federal law  complicated things isn't that the purpose though your honor of the declaratory judgment act to allow even putative defendants so i'm a punitive defendant let's be honest about that and that's not the only way  going to be the court with the jurisdiction to resolve what is wrong with taking the matter right up to the court and moving it along or toward judgment actions usually and even corrective am i right about putative defendant right you're actually the real point and you're saying i'm in the posture of somebody who might be able to bring damages or an equitable relief action and i'm just doing it as a clear tor tease where there was no damages you can governmental entities yes you brought the decoction to say the enforcement we're about to do is legit under federal law that under federal law under state law under state law if taken the controversy a lot of the things standing requirements are a lot yes i think it does it there has to be a case in controversy clearly there is a why didn't the federal department of justice lo these last three years filed deck actions with all these controversies and pick the forum where these things would be resolved if you're right every single one of the things that the national government did the last three years and they were sued about if you're right they could have sued wherever they wanted and have the constitutional or statutory dispute resolved in the form of their choice and i right that if you're right they could have done that this last three years and you should go work for them they would love i don't i think you are right i think you can take a case in controversy now it's going to be decided in the eastern district so i haven't taken it to a unique forum the the antitrust claim that they want to raise in fact they raised it earlier not just we jumped into this you would on a lot are unique forum there is federal versus state and a lot of people would look at this dispute and say this is st and foremost a question of what michigan law allows and what this ordinance allows and whether they're compatible and so forth what stant did is a precursor to this action was it filed the same type a claim against the sagan all valley medical control authority after st appearing in front of the commissioners  challenging the exclusive contract it then to get right in the challenge against the county it got license and challenge the sagan all valley medical control of the already saying under state law you don't have the authority to deny our license because there's no room to practice in saying at all because of the exclusive contract that was the medical controls of position they they challenge that under state law and under antitrust and the eastern district held under state law you're not the body medical control to operate to regulate the ambulance system within nd or county and therefore you must license them under state law and they settled that dispute merritt's point or threat point are you making a merits point about how the character judgment should be resolved due to this other decision by judge d are you making a point that the other case shows there's a real threat here it's a point i'm making your honor because the only reason they would do that is so they could practice within say going to a county so it was a predicate lawsuit in order to get licensed they have standing then to sue the county in order to enable it to be able to practice that's one way of looking at it but it seems a little question begging given that the dispute has been going on since two thousand and thirteen they've sued one entity but not you that's that seems to suggest reticence not aggressiveness or real threat but you asked to you what's the purpose of being licensed if you can't serve and so we filed within one month of the settlement of that other lawsuit in two thousand and seventy and the reason we filed is because obviously now they're going to move into and they were moving into say going to the county and we saw them operating with say going to county so we could do a ticket and we could have issue off or but you've got yours there's a lot of time you're spending to get the same issue resolved puzzling to me honestly your honor after they just had closed their federal case raising state and antitrust issues within a month bringing it back to the court and saying in effect we should have been a party in the st case maybe i should have intervened frankly in that case chuff but but not having that that i saw the declaratory judgment act as a way of advancing the issue because having an emergency transport system is important to the day to day operations of my county and so bringing it to the one jurisdiction that can resolve the issue when there's a case that's just been resolved or an administrative process of that up to the nine hundred and eleven committee  process for that in fact this state has a policy which recommends that the counties could develop an ambulance system within their community but there is no our overarching jurisdiction administratively over this type of claim both whether or not the public health code allows this contract which the eastern district in schwartz already said it could do or the antitrust claim there's nothing administrative law that would serve the purpose of resolving this so when the question so we would or would you agree that a citizen of saginaw could file a federal action against you in staten maybe some others and say you know we think we read the papers we seize on this we see the disagreement here we think there's a dispute we've been injured because we want more a month or less a month says whatever their position is and that would also be done a right controversy where that citizen have standing to bring that case sure a citizen could say i want stack for my emergencies if ever i have one not m m r and every so for every ordinance you have in the city that you're you haven't taken a position on of a citizen thinks there is some tension between the law and what someone's doing they can bring an action in federal court to get a court marital whether the city should be enforcing the law or not even the city has them opted to do so for one rating they could for antitrust or the one thousand nine hundred and eighty three action yes a citizen could take this same can't pass and bring it in front of the eastern district of michigan which again is why i'm somewhat puzzled w some cases where it's happened that that will really help me so that you gave let's hear from the other side the red lights been on for quite a while yeah thank you lawsuits and if we go back to two thousand and thirteen this is the time in which mr van essen mentioned these initial threats were made what needs to be understood is at that point stamped went in front of the sag and our county board commissioners i was there i remember this and i remember this well because on the right up there the tigers were playing the red sox and so i'm interest in the tigers going to let me just get to the practical point which i'm just i'm probably puzzled from both perspectives it seems like you guys do have a real dispute now ok no not necessarily for declaratory judgment act purposes but you don't think it would be helpful to resolve exactly how state and local law interact on this fr no and i'll tell you the reason why this is why i'm going back to two thousand and thirteen you are operating in the county yes ok we're not operating illegally either ok that's your position i got it good for us you know but there's a bit isn't there the risk that they're going to issue a ticket saying you're violating yes county ordinance of course what they should have done it's what they should be doing ok so my point is i don't care if this is the venue this is the case number where you resolve this but i'm just a little puzzled why it isn't in both client's interests to actually figure out what is allowed here st under state and local law and then if need be under federal law that just surprises me i am not sure why it would we don't have a stand we don't have a dispute with the county seat we are operating in the county right now we've been operating in the county since before two thousand and thirteen that's one of the misconceptions i have to clear up there is licensure and mr van essen referred to it by the medical control of the already there's only one entity in michigan that licenses ambulance company rule debate state just the pure home rule debate you may be right about it but it also may be the possible that under michigan law counties can actually decide to have exclusive arrangements for a service that's a different issue than a judge because sure they can under the standard that mr van essen cited the county can say we have one ambulance service providing county in mass each municipality within the county by the way can choose to hire my company or mr venison company or a rd party company and that company would provide e m s service nine hundred and eleven service for that municipality for the city that's why there's no dispute here if they want to ticket us and create a dispute that's fine they can do that but we don't have a dispute there's nothing about what what they're doing with regard to us operating in saginaw right now that we have a dispute with until they issue us a ticket and they haven't done that and it doesn't look like they're going to do it better your competitor than there with the name competitor m m r mobile medical or are ha oversight not a license but oversight by the medical control authority in santa again the state the only the state licenses in michigan the other thing that they have in this is just very simple it's a contract they have a contract which is not a blessing by the county but it's an exchange of services you provide nine hundred and eleven for the county we will pay you to do it you know by the way in providing services for the county for payment and i have to back up it's not the county that's paying it's the providers or anything ok who's covered what it's an exclusive contract saying only you will be dispatched for nine hundred and eleven calls i think county wide basis in exchange for that by the way you have to do the dispatching for the county as well ok that's fine again this comes back to didn't judge that and you keep raising this is there's a dispute there there's not until we actually get a ticket so you know there's no dispute and i'm one sorry that a problem for you that your client doesn't get access to the nine hundred and eleven call yes but in a different way than what you're referring to ok because the this is why i keep going back to two thousand and thirteen and i know i know you would all like me to move on from that but this is where it's important we win in front of the board of commissioners in two thousand and thirteen because we had learned that the board was extending early the nine hundred and eleven contract and just giving it again the m m r just renewed it and so our sole point going in front of the board that day was to say wait a minute you need to open bid this you need to put this out there you're a government entity a municipal and if you're a public body you need by by the way by your own internal rules in the county of saginaw to b out and the board of commissioners said no we're not going to do that we're just going to extend the country ok that's fine so they now have a contract to do the nine hundred and eleven and to do the dispatch that's not a problem it doesn't mean by the way that we can't do in or facility transfers within the county and it also doesn't mean that anybody who has a nine hundred and eleven emergency can't pull out their phone and call us directly nothing that prohibits that except according to sag and they say wait a minute you're in violation of our ordinance ok well number one we wrote to the county of saginaw to try to comply with the ordinance we said we'll go in front of you whatever we need to do to comply will do it and they would never call us back on it no reason no wonder as to why but they've never taken a rule help us think us make sure we're getting way the any trust law because you did mention a trust and some of these letters would it is what would happen would the state court be able to use any trust as a defense or would it have to be would have to be removed to federal court at that point do you just you know if you know yes if you don't don't worry about it oh sure it could be used as a defense absent what you could do that in state court you could resolve any trust in him and are we right that when it's a city or county no trouble damages are we on the same page there is my understanding and how about fees i just can't maybe we're wrong about that you know i don't know for you i'll be honest with you i just don't know ok and where where do you think this should be resolved if there's a ticket issue in state court i think it needs to start in state court that's right absolutely at some point could could it reach federal court if let's just say for the sake of argument we kept losing and are actually it doesn't matter who loses because you can keep going up the ladder eventually eventually this case could end up at the michigan supreme court and if even after that ruling it could be then removed or filed in federal court at some point i can't conceive it here here's one of the big issues and we we all keep missing it but one of the issues that is attendant in this case is that it's not the ordinance in and of itself that's problematic from either a constitutional or a and i trust perspective ok it's the carrying out it's the enforcement of the ordinance that's why there's no controversy here with regard to federal issues we talk all the time and i remember this is a kid people saying we made a federal case out of it and we say that a lot when we're kids because we just don't know what that really means what does it mean to have a case or controversy in federal court in article three court so in this case it would have to be a constitutional issue equal protection due process which we raised by the way in the saginaw valley medical control authority case or it would have to be and i trust issue but this stance shoot in of itself just existing we believe it violates state law has never been enforced so we don't have to worry about that but we got with regard to whether it's a constitutional or an antitrust issue it can only come to this court based on how it was in forced let's just take in i trust as it the ordinance currently exists there's no and i trust issue there but if it's enforced for the sole purpose of protecting one company and a government entity does that  just may have been and i trust you should not verify what you just said the way the ordinance is currently being enforced there are no any trust problems or constitutional issues that's right currently that's right of course because you're not being ticketed no because we don't know commissioners approval and it has to be there by contractor and i believe it's in need so in other words you have to show you have a contract within say going to a county and then they they will let you come in the county there's no word that says the licensing you but there it's an allowance to come in it's not it's that unfortunately judge what you said or yours requires you to go in and get approval right you haven't gotten approval but you're operating but they're not ticketing you right there's no problem right now that's right and i would add one other thing too we've written to the board to say ok consider us and we've never gotten a response back to that because the response to my question i thought there were some administrative means to eleven committee has what is it it's the e m s coordinating committee the m s c see now they've punted on this issue because there's currently a lawsuit and they don't want to consider it under way at all before the lawsuit is probably the best word e m s providers professionals members from the state that provided it's an advisory capacity but they do have a lot of authority within the e m s community if they were able to resolve this they would have but they didn't want to take the issue of their way to put where you are on this is without an issue new tickets your client gets right you have no objection under a federal antitrust or federal constitutional law or for that matter state law about what's happening as two applications by your client none of those things have been triggered because they haven't been denied yet that's right and so it would be a denial unfairly or on constitutionally or enforcemen  fairly or on constitutionally that would trigger someone's right to sue is the way you're looking at abortion you know so i was pushing the palin hard on this point that i was unaware of a state or county case government case where they sued to say what we're about to do is constitutional but i'm also not aware of a case that shuts that down particular at the county level are you aware of a case where someone a county or city brought it back action to say what we're about to do is kosher under the u s constitution and the court responded wait a nd you can't do that now and why would you for this reason if that were found to be a case in controversy whether it's just under article in article three review for either standing right now or under the declaratory judgment act then everything becomes something you can bring into federal court under the declaratory judgment act if you let this case proceed and come in then everything has to be our everything could be argued judge pointed out in his opinion that this case is unique because it's the inverse of the flip side to what you normally see so you would mention abortion issues and he pointed out the gun rights case where it is to say look we have an unconstitutional statute that's here don't make us violate it before we can come into court that would be our position traditionally in this case they don't make as usually you're the one yes we're the ones actually yeah but that's not the case here because we haven't been ticketed we haven't we don't have an issue to be raised now we may have other issues with the dispensation and the oversight of medical control within sag and but contractual issue that's contracts not up for me new at some point it might be in my client may want to bid on it at that stage we're not there that's not this isn't the kind of case that the needs or should be in federal court it doesn't meet any of the requirements under the declaratory judgment act or any of the other procedural realms that we take a look at i mentioned them earlier standing right now as you know that sort of thing this is quite frankly a situation that we were rushed into federal court on a case that we had no intention of filing at the time literally mr at venice and said it would then have thirty days of us resolving the previous case against by the way and you need to make sure everybody in this panel understands are separate entities we sued the medical control of already back at the end of two thousand and thirteen and the reason we sued the medical control authority is because they refused to provide oversight to us not licensure again i keep coming back to this we are licensed by the state the medical control authority and said going to has to provide oversight to us it's not permissive it's mandatory and they refused to do and we sued and at the beginning of that lawsuit the argument from the other side was look stan applied we denied their application we didn't think the matter requirements we treat everybody equally and fairly by the end of the discovery process what we found out and what was admitted to by the medical control thirty was yeah we're not here to protect m m r we want one provider and all of said going to county that's all we want now you might think as a panel well that's a good idea one provider balances out the community they don't need any more you may think that's a great idea but that's not the state law in michigan i may have written an entirely different statute and someday i might run for the legislature and get to do it but that's unfortunately not our system in michigan everybody that can provide twenty four dollars seventh's service and pays their fee gets licensed and every and i and he would not give him to go home happy declared i am going to go home you're on or i'm going to go home happy because i couldn't get those icon this is all good we are all good because this status quo is satisfactory to my client it doesn't jeopardize our system and i'm going to hold counsel to the representations he made the only thing i would say in my defense i challenge the court to read those suspect things will change so if you're saying you're not issuing tickets he's going to leave home just as happy leave here just as happy as you are are you saying no tickets i don't i don't know what the future brings but right now our says it's a good let me just say in all candor our system could be threatened the reason we're doing this just so you understand is because the center city ambulance services subsidize the rural activities we get pledges from memoir that they will meet a certain average response time in the rural areas we would never get that your honor without giving them exclusivity in the city of know and whatever they're doing is not impeding that system right now which is why we have an escape clause in our ordinance which by the way they haven't exercised properly but that's for another issue so i'm saying is this litigation has preserved our system up until this point and given his representations to the corps that if he doesn't see the antitrust violation with the status quo in saginaw county as it currently exists i'm content with that i asked for that before i've gotten it now and i am content i can't promise what the future is he can't either  sense that if things change there might be a ticket issue and we will end up you there i still think the answer your honor to your question what you got was we could have litigation in state court a an attorney in my position can still take that to the end jurisdiction and say let's get on with it if it's federal court that's exclusive arbiter of sherman antitrust cases let's get there without all those interim steps in the spirit of agreement i think the results are confidential but the parties engage with the mediation office from the court we did we did