good morning your owners stacey shot for the plaintiffs ryan baker the court has asked three questions in this matter that we were asked to address whether the plaintiff forfeited or waived the argument that the state court judgment was not on the merits as to the defendant's state of arizona if the issue was not waived or forfeited was the state courts judgment as to the state on the merits and his defendant charles ryan in his official capacity in privity with the state of arizona for purposes of this suit the court may answer all three questions in plain his favor if we look behind the fiction of the distinction between defendant ryan and the state for the purposes of the relief requested in this case protection from assault throughout this suit brian baker has tried to respect the state sovereign immunity and accommodate the state's requirements for being sued everything except  himself to a potentially fatal assault let me try to make this focus it for you and those questions were meant to focus start out from the premise your opponent may disagree that i don't think that the ruling in baker what we call baker to the state court ruling dismissing the state was on the merits but rather simply because the state couldn't be sued or there were nine hundred and eighty three were for a state law or course of action and i thought that be a terrific  argue for you to have made on appeal but you don't seem to you know it's ok tell me and so normally we don't address arguments that are not made on appeal we don't address arguments that judges are clever enough to come up with so tell us did l was unconstitutional on its face no that's that's different than calling it unconstitutional i mean the state and that's a weak argument that the state is entitle to sovereign immunity unless it waives it so the state says we're not going to waive our sovereign immunity from suit involving prisoners unless there's an injury and disappear court says ok therefore you can't sue them under state law now we get a nine hundred and eighty three and we all know nine hundred and eighty three doesn't provide a course of action against the state the supreme court's told us that so the superior court quite correctly i think says sorry you got your claim against the state is no good correct you still have a claim against brian but i'm going to dismiss it for a separate reason which the district court didn't think was precludes suv and i think the district court was right about that so now we get to now we get to your appeal to to us and the question is are you arguing that the dismissal of the state was on not on the merits and if so where can i find that in your briefs you are correct the court is correct that this argument was not raised  appeal however the court can reach it because of the constitutional issue what's the conservation was before the civil war the states had absolute power absolute immunity from suit they were free to murder torture and enslave their own people with absolute immunity but after the civil war the federal government put limits on that power so do you think there are a simpler answer that this is a question of and we've given you both in writing an opportunity to address it i mean yes yes but you have a feeling with the civil war yet we don't have to find these arizona statute unconstitutional indeed i'm not sure that's an argument you made to the district court we just have in fact where judge her words and suggesting is that it's perfectly valid and it just provides that you can't sue the state in this arguments regarding the whether or not it was whether or not the but that's not in front of us is and i only question here is whether the case should have been dismissed or not on appeal but it's a legal argument and we have the discretion if we want to address it maybe we ought to let the state have a chance to respond to it but i don't see you telling me that you actually made the right ok yes i will concede that i did not make the argument on appeal i am a trial lawyer this is my father's i mean i think i'm sure you elated at trial i don't see in the district court record an argument on the merits just for purposes of discussion why was there not pretty i believe that there was pretty and this gets to my argument my constitutional argument that the state's interests have really you think there was with their interests identical states interest was not being having its sovereign immunity questioned either act either in the federal claim with the state claim ryan's interest was not having his actions question they may have pretty with respect to some items but i'm not sure why there's privity with respect to the basis on which the state prevailed the plaintiff sued for an injunction in state court for protection the court found that the state was not a correct party for that act so the wrong person should have sued individuals correct however the state demands that the state be sued whenever there's an action brought by a prisoner so the plaintiff was trying to accommodate the state's requirements for sovereign immunity the states sued the state plaintiffs sued the state which is the state demand th state in the same statute under subsection f it says that any action against the director for conditions of confinement cases shell run only against the state so we brought it against the state we know that your federal action was only brought against roy right yes and so put aside whether or not the state court dismissal was correct put aside whether or not the state should have allowed you state courts should have allowed you to sue the state assume that it was a correct dismissal and i've asked you also to assume that it was on the merits for some reason now if it was on the merits why wasn't it is there pretty i don't believe that the state's interests are legitimate here and that is where the question lies whether it's ryan or the state which is why i suggest we put aside that fiction and focus on the relief requested because that the court can reach the merits of this case because the state statute that this the state court action was dismissed on is unconstitutional on it doesn't matter  we i think we understand your argument and there did you want to reserve any time for honors good morning christopher white on behalf of pelley ryan and may please the court this case which the parties and the court below like referred to as baker three is appeared to go manic example of why is important it rests on the foundational principles of respect for the rule of law we all love claim preclusion it stops it it prevents us from having to worry about the merits of a case my problem with this case is that i can't figure out how the judgment against the state in favor of the state in the state court was on the merits your motion to dismiss said you can't sue us under thirty one whatever the number is you can you can sue individuals and you can and eighty three you can sue individuals and the state court judge quite correctly said then they amended the complaint to include ryan state court judge quite correctly said at the end of that you're right the state's not an appropriate party i'm not holding that the plaintiff in this case wasn't mistreated or doesn't have a claim for relief i'm just holding that he has to assert it against somebody else correct with respect to the section nine hundred and eighty three dollars claim in state court baker two yes you're on that part and with respect to this so ok so just focus on the nine hundred and three dollars claim because that's all we have in front of us your honor i'm afraid that's incorrect the state court judgment baker to issue final judgment as to the state against common law negligence and ok fair enough but he did so on the basis of it didn't say i find there's no deco chance i find that you're this gentleman was appropriately treated it said i'm citing the state's statute you can't sue the state for  honor is that point of could not prevail and that cause of action because of the state's in vocation of the affirmative defense laid out with that physical injury required right so he could not that doesn't mean he couldn't  al against ryan on those claims right that in itself your honor no ok so therefore that judgment was not on the issues that ryan that this plaintiff baker now seeks to advance in his federal lawsuit to your great your honor i agree there was no actual litigation of the issues ok that would be a relevant inquiry for an issue reclusion it's also relevant for a claim preclusion because the claim against the state was dismissed because it wasn't an appropriate party under the facts of this case it was nothing in that dismissal that made it inappropriate to sue mr ryan for the for on  allegations correct your honor i'm not sure i follow i believe that me making me make it easy if in fact this was a decision on the merits of the claims then ryan's claims would have been dismissed for exactly the same reason because if if the judgment in favor of the state was one that did that doomed ryan's claims the district this state judge should have dismissed him both at the same time for the same reason he did not what he said was has to ryan you haven't served him and the district judge in this case quite correctly said that's not a judgment on the merits as to ryan so i'm still i think i don't understand why the judgment in the state case adjudicated the claims against ryan because you have to show that it involves the same the same claims your honor the state ryan does not contend that the judgment the final judgment in baker two was final as to ryan the state is only contending that that judgment was a final judgment as to the state of arizona that those parties are in pretty with respect to baker three and that the cause of action is the same so it is so it comes down in your view to  prevent earn your honor yes and appellee ryan did argue that under the doctor set forth in will versus michigan department state police ryan here was sued in his official capacity and should be considered identical to the state but in the alternative if not identical clearly in privity under the laws of the state of arizona employees are almost always in pretty with their let me give you a slightly different factual scenario and see if you can help me with it because i think it will help you focus on what's troubling me let's assume that baker only brings a suit in state court against state and the state prevails for all the reasons that it did in this case the superior court judge says you would he be claimed precluded from doing so yes you are in fact that's basically the fact pattern really here if that is the fact pattern here that's why we ask really so if you bring a suit against the state and he actually attempted to include ryan in the other ones  wasn't that he left about if you bring a suit against a state that's a sinister on jurisdictional grounds statutory grounds and the statutes don't give rise to a cause of action against the state you that is claim preclusion of against all of the state gree it said there is no cause of action on the facts you've alleged against the sovereign state of arizona because ninety three dollars doesn't extend to the state and because the state has affirmative defense based on the statute which excludes any claim being made against the state but that affirmative defense didn't exclude any claim being made against ryan did no and as the district court pointed out appellant baker was free to serve ryan and pursue that case and now do so let me go back to the maid that the head of the pellon served ryan in the state court proceeding would you then have been able to say we move for dismissal because the state was dismissed  ryan baker can't sue ryan because the state already won with this i'm afraid i'm not following up you see my problem is i don't view the judgement in favor of the state as having anything to do with ryan's claims with baker's claims against ryan so tell me tell me why i'm not well emphasize again the judgment as to the state was a final judgment it was final pursuant to the rules of the state of arizona rule forty one b which the district court quoted in full argue then why wouldn't couldn't he just turn around in the state court proceeding and say i mean privity with the state there was a final judgment in favor of the state and therefore i went under that hypothetical proceeding counsel the principle that you the judgment that binds the sovereign also binds subordinate officials is that into statute or is that in and i was on the supreme court decision your honor that's an  arizona supreme court decision arizona downs versus a peer court of arizona that states as a rule members of a state agency are in privity to the state ok for subsequent to and that's what you're relying on here that and just the general rule that where there is a commonality of interests or the interests are adequately represented by the prior party that pretty will generally be found but in arizona downs the p that the state is not an appropriate party with reese it was but remember there are two claims in baker to the state law claims and section one thousand nine hundred and three with respect to section one hundred and eighty three the state was not a proper party however state court had subject matter jurisdiction here in one thousand nine hundred claim and had personal jurisdiction over the state having been served simply because appellant had the wrong complaint to city claim which relief could be granted does jurisdiction no one no one's saying that it does the question is whether the arizona supreme court would treat the ruling in favor of the state in this matter as a claim pro quo suv and my difficulty with that is that the ruling in favor of the state doesn't have to do with the merits of the claim but rather of the plaintiff's inability to sue that particular defendant your honor our supreme court held in philips versus arizona board of regents that  dismissal a motion to dismiss for failure to post a cost bond later had a precludes of effect it never came to the merits instead the plane to fail to meet the statutory requirements for bringing that cause of action against a state a minute left thank you and this state got its way in state court they got to protect their sovereign immunity by saying how they can be sued and and where and under what circumstances this court can reach the issue because in order to prevent a miscarriage of justice plaintiffs ryan bakers only option at this point would be to be assaulted and then go back to