good morning your honour's andrea st joy and on behalf of the petitioner and appellant sammy page i'd like to reserve four minutes for rebuttal this very month is the thirteenth anniversary of the filing of the commitment petition against sammy page for the last thirteen years he's been placed in a state hospital without there ever having been a trial committing him and even to this day there is still no trial scheduled it's your eye you contesting the failure to hold the trial or what exactly well are they  determination or the failure to make a new probable cause determination more recently or exactly why substantively i would say what what mr page one wants is and this is goes to one of the uncertified issues that we've argued is that the petitions on which or excuse me the two a valuation is on which the petition was filed were both based on a diagnosis that is not and never was a valid mental health condition disorder and now is your federal court claim a claim to that probable cause determination to argue for a new problem i gather in two thousand and twelve and look for a new probable cause determination and new evaluations it was granted by the state court and then in looking to review that we're actually going back to the very inception because unfortunately the problem has continued  the evaluations on which the original commitment petition were based again is on a non existent mental health disorder and that is found clearly and case law and we would like the original commitment petition dismissed it can be dismissed without prejudice they can refile if they can come up with to evaluators you again using a valid mental health diagnosis saying that he is a danger as a result of this mental health condition and that is ultimately what mr page is seeking in this in his in his petition and getting to the younger abstention issue which is what happened happened below mr page is the least powerful and empty in the state court proceeding yet the government in this appeal is blaming him for this thirteen these thirteen years of delay only the court can set a trial date and only the state can designate evaluators to update the evaluations so that the trial can move forward the  as an acted by california allows indefinite pretrial detention that is a structural problem in the act itself and it has has mr paged ever demand a trial mr page  and simple question yes it is a simple it appears as you know me well well actually if you if i may put it in context how about answering the question first i'm not going to get into i will your honor this is the problem mr page yes or no has he ever demanded trial and then you could explain the answer this simple question is the record as i have read it doesn't directly address that and this is why i have to put it in context mr paige outside of the probable cause hearing nearly thirteen years ago has never been able to attend any of his hearings in the last thirteen years he is located in fresno and the case is in alameda county there so he doesn't know what's gone on at his hearing his attorney right he has had four different attorneys on this case and it's very nice represent him at the hearings yes and he's had four different attorneys helen i have so many my question yes have has and have any of mr page's attorneys ever demand a trial in those thirteen years the record and again because he's had four different counsel the last one was just appointed in two thousand and seventeen what the only thing that we can go on is the minute orders that are in that i would like to point out to the court in the immediate appeal that was before this court in thirteen seventeen three fifty two the court read the minutes orders that war had been filed up to this point and the court said and this court said the superior court has continued pages recommitment proceedings at least twenty eight times over the past ten years the record before us does not disclose the causes of the considerable  particular issue one it was wholly inappropriate for the court to ask for that declaration that is because as counsel is acting as a witness and in the case that's totally inappropriate that was i think that was the da that put that  does that declaration and it puts my client a distinct disadvantage because a defense but this was why i asked you began by asking you what you were really challenging because under a case like  there whether a younger applies when dependent seems to me on whether you're contesting essentially the pretrial detention or the  failure to hold the trial as to the ultimate question and i gather at least in part from your answer that you're challenging the pretrial detention on the ground that the original determine probable cause determination was invalid what did happen in two thousand and twelve i mean what why the fact said that there were further evaluations at that point which were contradictory contradict each because the two evaluations and i'll just take it to the extreme even if which i believe is probably going to happen even if there are additional evaluations updated evaluations and all of them say that he is not a danger that still can't serve to undo the probable cause hearing well i can serve maybe as a matter of stant law but it can and can certainly suggest that it is current as a at twenty to forty four one matter that his current detention in state court is unconstitutional because there is no basis now for believing that he m yes in two thousand and twelve that's you know that's you know seven years ago that is seven years ago i thought was a value waiters as i understand it split to two exactly as to whether he meant the state standard exactly they said it was a double split it was a double split but one of the things that is of such concern is again the state keeps using these loopholes if mr page were committed he would have had to have an evaluation every single year but this is the state now says well he really hasn't had a commitment hearing so we don't have to do a valuation every year so if they want to why are you just challenging that whole system and then having any focus on whether he's having a trial or not i  completely agree and we have pointed that out in this case that it is a systemic chronic problem and and the twenty to forty one focuses on this to tension well the fact that he's in right now yes not on whether he's going to have a trial in the future necessarily yes and that is what we are about is what mr page is asking for his original detention is improper because in order i mean the the  not saying a very much that his continuing detentions improper because never know when several looked at it again in the last twelve years yes and when they did look at it they days bled in a way that would have supported the detention under state case came out with a case called riley where it said that there had to be a finding that there was actually a material the that the issue below had to actually have a material consequence and you couldn't just ordinary criminal proceeding you wouldn't do that because the probable cause is test something a bit in the past senate isn't going to change but this by definition does change it absolutely as evidenced by the fact that you have t if you're committed yes and i would like to point out that mr page is going to be sixty eight years old this year all right as it is through out all of the materials all of the record is that after the age of sixty is almost there is there are simply there is evidence and there statistics show that there is no more danger of is that the argument starts focusing on the the petition or the committee and what what he did or did not do instead matt and that what that does is you mean like here in terms of whether he tried to get a yes what he tried to do in terms of getting a trial instead of looking at this as being a chronic systemic problem this is the there are you can look through the cases would that  because it's not a criminal so they say instead of pretrial detainees they say post operation i retained you but he's a pretrial detainees and this is a chronic system and the reason a problem and the reason why it is a chronic problem is because the the act  there are some but again there are but the the state doesn't want to process all of these and so what it does is it continues them for years on and so there are none the california courts have not stepped in the can't know the california courts have not stepped in by the break that here is that it wasn't a state that was continuing it for all these years i mean that's your problem here i and i mean your position that no never mind the state should  court should have done something is a viable position perhaps but there is no record here that the state is there anything that the state is responsible for the delays and that's what we're looking at a well one thing i would just like to start position but what is justifiable position is to say it's up to the stay yeah the state caused him to lead the state meaning the prosecutor because that's not this record yes but but in terms of the delay all i can all i can point to in the court is what the record is before us and all  ok minute orders that are before this court all right and they do not show they do not show i'll give you a minute or two for reb file motions it's hacking the probably closer tried to get a new probable cause hearing done and that didn't work and he had these new evaluations and the new evaluations as i understood it would not have substantiated him in the probable cause determination and then that was over rules so what i mean why are we focusing on the question of whether he when he's going to have a strong eyeless opposed to why he's been detained for thirteen years on a two thousand and six probable cause determination in an instance in which time moves on and we're not talking about the past the way we are in an ordinary criminal proceeding we're based on a true thousand sex probable cause determination that he was a danger in two thousand and six well while we're looking at whether it's in danger in two thousand and nineteen as to whether he has just has to stage a change now the proceedings themselves with taken to the trial itself would take into account any updated valuations that have been given and the question would be is he a danger as of two thousand and nineteen why isn't that a question as to whether why doesn't he ha some the system seems totally out of control and it would seem to mean that i don't know she's making this claim you may tell me this isn't the claim that's being made but inviolable claim might well be that under these circumstances you need to have probable cause determination if you're going to keep them in prison that long waiting for a trial on some regular basis other than one thousand years you know those are claims that petitioner is raising and litigating in state court the question  you're complaining about is the pretrial detention and not the pretty neat what's the ultimate proceeding that younger is not necessarily applicable but that's not what he's complaining about that's what i'm asking something t dismiss the probable cause determination he's attempting to dismiss the entire proceeding without going to trial well what about without going through a new probable cause determination which was released be a timely one to dismiss and reinstate thirteen years based on a two thousand and six determination of his dangerousness and never had another one because he has continued to waive any rights to further process he has continued to make a tactical decision to waive his right to trial he could go to trial this trial but this that i'm not talking about trial i'm talking about the determination that there is sufficient  again your honor i believe that in order to reach that in order to reach the probable cause determination itself that would require this court to dismiss the state proceedings to interfere with the state's scenes that are ongoing why couldn't we why couldn't we were of you the question whether you can keep somebody for thirteen years when when the issue is his courage dangerousness and never have another judge determination of trial or to continue to push for other types of remedies which is exactly what he's doing and if that's an inadequate and constitutionally inadequate why isn't he got to argue that's a constitutional an adequate system he has not made a claim that the system is constitutionally inadequate he has made a claim that in his proceeding his evaluations were improperly done and therefore his right claim not saying that he couldn't make the claim i'm not saying he couldn't make that claim but that's not what's at issue here he's asking for the dismissal of his proceedings based on his various claims against the original problem because from a nation and his previous incarceration it's not the certified question the question here before us is whether younger abstention applies so the question here is whether the factors of younger whether his proceedings and sta court ongoing and whether there are what's the what's the underlying claim that he is making that he wants to present to the federal habeas court that his commitment should be his pending petition for commitment should be dismissed because it was improperly brought that's not what the cert that's not what the certified question says the certified questions understanding of his claim federal  that whether that two thousand and six recommitment probable cause determination file a did his due process rights right is that the underlying claim as we understand i don't believe that that is necessarily the complete reading of his claims he's made multiple claims in his petition and the operative has an an amended petition correct that we're working on  he has made several and several supplemental petitions and i mean ok go ahead because what judge burns on saying is it is she's trying to figure out what the underlying claim is because that bears on whether younger abstention is proper so our first step is to figure out what's the underlying claim and i'm new to this case because i don't ordinarily sit on this court so when new opinion of the case i look to what the certified issue is on page four of the blue brief look and i tell it tells me what the underlying claim is looking to the underlying claim as i understand it from the position is looking to the remedy that he's seeking any dismissal of the probable cause hearing would interfere with state court proceedings because that's what he is currently litigating this is a twenty to forty one yes maybe as and i by the way have a question as to  why younger even applies maybe but leaving that aside i know we've applied but it's not transparently clear i mean that applies because it's what he in if the question is was the two thousand and six recommitting probable cause determination violent felons due process rights that's was the order the underlying question why couldn't the two thousand and six probable cause for mission violate its due process rights because it's thirteen right whether you can have a trial later or not have a trial that has a different question and it's the evaluations then were that he should and there wasn't probable cause under the state standards yes you're ok but he's still there but the question is that a constitutionally valid procedure that keeps somebody into tension even though there isn't probable cause which we can tell from this record because they used to be probable cause is that a constitutionally felt procedure and is that bar if we do address the merits it's not what you going to get but why does that preclude us from and why is that mean that younker bars the federal court from looking at this procedure and saying is this a constitutionally valid procedure but simply not the process rights that's that's the sort of fine issue is that not correct again his detention in this situation is a part of the proceeding that the reason the state court proceeding in the s p p contacts goes forward in a certain way is the petitioner wants to delay and the state is willing to acquiesce to that delay because the objectives are being met the state subject of the just use aren't even being met because apparently once he's committed he gets  he needs to have to evaluations that match for problem wasn't her mission but for trial the question is decided by the trier of fact whether or not one determination or another control is something that's up to the fact and not to simply whether the evaluations match each other but it's a one way i'm sorry it is a one way to stop the pretrial detention to have a trial yes you're right so if there's a trial k next question is there a due process rights to a problem caused determination pending trial and i point you to manual versus city of joliet from twenty seventeen decided by the supreme court of the united states i believe it said that there is no due process right to a probable cause determination i don't know if you're familiar with that case i know you are ok but i want to ask you about it held based on two recent evaluations does not enjoying the proceeding below it doesn't enjoy it so younger wouldn't apply because it's required that the action of the court has to enjoin the state court proceeding and that would not enjoy it so i would definitely agree with that one thing i do also want to address is the argument that somehow this is a tactical decision on and why the case hasn't gone far there is well and there is nothing the problem and this is also where i strongly disagree with counsel there the record does not show that mr page has continued this for thirteen years that is simply not in the record at all well it is in the record in the sense that the d a s declaration says that yet that's not in the any court record but there is a record that  says i would take exception with that the the d a s declaration was just a declaration as to when he was on the case and he speculated as to what had happened all of the years earlier that is not valid you honor so that does not show thirteen but you could have corrected that by contacting the other four lawyers and saying hey did you ever demand trial and if they if one of them said yes then that's great because then you could solve the problem and say yes we did demand trial and we haven't got that for several years and then i'm thinking this looks like an extraordinary circumstance under younger but that didn't happen like the are these people all dead or are they alive i don't know your honor ok i don't court that is really the problem that we are grappling with here at oral argument if he had had counsel and the district court we would have had a more appropriate record to bring before this cloquet we don't have it ok thank you thank you so much for your we're going to court's going to take a short ten minute recess