and so how could any of that have been done without any class representative i don't i don't know how we got it without having a classroom time because i don't know how that evaluation printed then complete the class sort of serve a kitchen order actually issued you know they had proposed class representatives the district court did not approve any of them and so we end up with this order that doesn't have class wraps but representative assuming that someone is aggrieved at that moment be accepted as a class representative even though his or her circumstance may change as i understand the facts of this case we have people that are sort of transiently in this class this purported class and they're awaiting assignment to a facility and there's always going to be people that go into this extended phase of incarceration awaiting assignment to a so is it possible just theoretically and i understand your argument that class certification is improper generally for many reasons from reading a brief but is it possible that a class representative who is currently aggrieved can serve as a representative even though his or her case he or she may ultimately be assigned within a month or two to a facility it's theoretically possible although assuming that person had a live claim at the time of certification then and was appointed as a class representative the district court would have authority to him in the class or vacation later to appoint a different representative if it concluded that that person being admitted to a state hospital was no longer appropriate to be a class representative but all that presumes that somebody was appointed as a class for presiding in the first place and so they've they've argued that amendment power under rule twenty three but typically in adequacy of representation are prerequisites to serve a cation so if somebody has to satisfy those at the outset at the time of the  and that was not done so in this case we don't have a class representative we have rather in an invitation by the court to present a class representatives with a certification on the front end is that is my understanding correct that's that's correct  additional plaintiffs to be to be appointed as class representatives but that's not proper because that means that this classification order is incomplete what your position on the timeframe from the time of the letter received until the time that the and made at that point needs to be transferred to a hospital are a mental health facility what your position on that time is that it is a reasonable component how do define that it seems like a mere pleading here on us thinking it should be immediate which of course is impossible right well that's the i mean the the way the plaintiffs have framed their complaint their argument is that someone has a constitutional claim the moment they are committed to the state hospital system but no law supports that and it is there's an internal inconsistency in their complaint because their claim is that there is no constitutional injury unless they have been detained for an unreasonable period of time without treatment and yet this class definition sweeps and at least as to the incompetent chaney's individuals instant the state gets that warder and our position is that such persons cannot causally a word injury in fact because they have no actual or imminent injury at that point  didn't know this is a certification order did not either and it's you know the plaintiffs have framed our position as we have to take some position on that or we are asking that they take some position on that at this point and that's not our position our position is not that the court would have to decide at the certification stage that x amount of time is reasonable our position is just that isn't that the tail wagging the dog i mean that's the issue it's the delay the delay is that is the issue yes but what your position i guess i'm not sure i understand your question did clinton if you're asking me what is our position on the merits as to what time is a reasonable time right we haven't taken a position on that yet and that and part of the reason we haven't taken a position on that yet is the parties dispute the political reason the clickable legal standard in this case and put them away the political standard for culpability for their subs interview process claims and this is exactly the same dispute that was at issue in this court's decision in  vs perry in two thousand and twelve our position and we raised this in the response to the motion for class or vacation is that the proper standard is that we had to have been deliberately indifferent to the health and safety of an individual six that shocks the conscience and that would give rise to individuality or individualized issues that may preclude commonality the players position is no it's the young bird professional judgment standard that applies and it you don't have to get into that but as and indeed the district court never addressed that even though we joint issue on it in the classification briefing the district court never discusses that in fact the second common question of fact and the common question of law both just presume that the professional judgment standard applies and so in our view we're in exactly the same spot as this court's decision in india versus perry in two thousand and twelve where the court said declining to analyze that dispute was air and the court didn't decide didn't say we have to decide that in the first instance it said we're going to send it back to the district court so the district court can address it but it has to address it with reference to the elements of the claims the defenses the proof and it has to discuss the two exceptions that they argued below inherently transitory claims in the court's delay in ruling on certification in two thousand and thirteen in the genesis health care case the supreme court clarified what an inherent transitory claim is it focuses on the fleeting nature of the challenge conduct and that conduct was be so fleeting that it is effectively unreviewable because no plaintive will have a claim long enough to reach the certification stage here the challenge conduct is allowing persons committed to state hospitals to remain detained in county jails for periods that have lasted over a year that conduct is in no sense fleeting and indeed just in the small sample size of the seven plaintiffs three of them were detained between thirteen and fifteen months so that's not ceding conduct and given those delays it can't be said that no plaintive will have a claim that reaches certification what happened here is they waited response brief that they all had a life claims at the time the move for certification is not correct let me ask you on that alone those lines have any of the named incompetent detainee plaintiff's already been adjudged on more than one occasion to be incompetent in the same class in other words the capable of repetition issue contemplates someone being declared incompetent and then going to a facility and then subsequently being declared competent enough think there's some argument in there that as to in individual it could be repeated has that ever happened in this case for any of these plaintiffs that you know of there there is only than than that instance of it not on this record your honor but in any event they did not make that argument below and so the first response is that it's been wave or appeal the second argument is that that rests on than assumption that these individuals were engaged in future criminal conduct and in we just had some twenty a j letter submitted about the san court said that's a settled rule that it can't this exception can't be based on assumptions if you criminal con well i'm not talking specifically about future criminal conduct i'm talking about a particular individual who is a class member whether it's mr wa someone else who is declared incompetent but then subsequently is remained in back and can assist in his defense and then again at some point is declared incompetent i mean that that happens from time to time ever realize it's rare but since we are talking about capable of repetition and we do have a class representative that apparently falls into that category maybe that's the only one i guess that's what i'm asking is maybe mr ward is the only one who falls into that category if i understand you correctly well i'm sorry i think i understood your question judging before you're referring to someone who has his competency restored correct turns back to the criminal proceeding and again lapses in as a judge incompetent to stand trial again and exact same position there's certainly no allegation in acquitted by reason of insanity and so are you acquitted if you're incompetent no just insane just just insanity that's the other class time that we're talking about and so what happens to those individuals depends on whether the offense involved dangerous conduct and if it did involve dangerous conduct then they are committed to a state hospital for evaluation and treatment for the initial thirty they're all all the insanity of quickies get a maximum security units and then the statute provides that they're there for thirty days for evaluation and treatment and then at that point there is a hearing to determine whether you know what happens next do they need to continue to be held or do they need to be committed to some other institutions that that's how that works ok thank you i just want to dressed quickly the issue of the courts delay the way from this court there was a seventeen month delay between the class or motion and the certification hearing the congress narrows case it was a two year delay here the district court ruled seven months after class or i'd like to first address the movement issue and specifically the point with regard to the genesis case in the state takes the position that under genesis you have to show that it's so fleeting that no plaintiff could possibly have a claim that lasts long enough we believe that's an incorrect reading of gerstein for several reasons gerstein itself the court said that the record was unclear as to whether any of the named plaintiffs were still in jail at the time the class was certified but that long the detention the last not thinking about an average how long it's actually going to last it's uncertain because it cannot be ascertained at the outset for any particular individual who is going into detention because the reasons that they might be released earlier or later are not in their control it's in the state's control  is by no means certain that any individual would be in pasta the long enough to certify the class and that's different from saying that you have to show that it's that there could be no play this could have attention long enough now in sanchez gomez just last may the supreme court is again talking about the gerstein exception and sanchez gomez describes as requiring that it be difficult for a named plaintiff to keep the claim alive long enough and they used the word difficult not the word impossible but what you're really doing with the gerstein analysis is you're focusing on the conditions at the outset when this potential first starts you don't know how long it's going to be you might have a plaintiff who's going to be there long enough but you have no way of knowing which plaintiff that's going to be you ask the flip side of what judge clement asked mr craft what is the plaintiff's position with regard to reasonableness in so far as rising to the level of a constitutional violation our position is that this is an issue that the district court should decide after a full trial on the merits and hearing the evidence and weighing all the factors so actually it seems we're in agreement with the state on that point which is why it doesn't make sense for the state in its brief thing  basically say that district court had to define upfront that class certification stage how long is an extended period of time how long is too long and this is a common issue and but then you wouldn't it seems to me you would be difficult to outline the class definition if we don't know at what point someone becomes aggrieved and entitled to relief the relief that you're seeking which i understand is injunctive in declaratory we don't really know what the parameters of that class is whether it's a week ago whether it's a month or what one of the timelines before somebody actually enters into the class is that something that we should just preterm it and decide later once we you kind of meet yourself coming and going to seems like in terms of what the class definition is going to be we want to definition on the front end and yet we can't really define it because we don't know i think that was which at climate was asking least that's how i interpreted it when she asked me to craft we just don't know what who would fall into that group i think a good case on this point it's the supreme court in  the riverside county office about getting prompt probable cause hearns after you're arrested now at the end of that case they finally came up with a rule that says the constitution requires a hearing within forty eight hours of forty eight hours is that reasonable time they did not have that number at the beginning of the case when the class was certified  plaintiffs described the release they sought as a prompt hearing the district court certification ordered to describe the class as including everyone who is in jail  and how to hearing yet so that would include anyone people who've been there more than forty eight hours or less than forty eight hours and at that time the court had not yet decided what exactly the constitution requires in terms of pumps but that didn't stop the class from being certified and in this case also eventually the court will come up with a time frame of how long it's reasonable to expect the state to move these people into facilities and there will be some class members who fall on the short side of that and so they won't actually be injured or they won't they won't suffer the damage of being detained longer than what the court ultimately decides or you're in any way challenging to increase its capacity hire more people get more beds or they the time period the waiting period has got to be influenced by that if that's  something that's unconstitutional you're certainly correct that that's an issue that the port should consider when it's deciding this case on the merits and on that point at that point then the state will be able to introduce evidence of its resource constraints and both parties will have a chance to argue about what length of time is reasonable and not something that really  doesn't need to happen up front with class certification or you're putting seem to indicate that you have a problem with policy first come first served why is that unconstitutional it's it's unconstitutional because they were detained for extended periods of time and deprived of the evaluation and competency restoration service they all want to be first everybody can't be hers so there has to be a logical progression of first him first down seems to me and the claim is that it's the delays are not the product of a professional judgement but the delay would be shortened if the first person or if the first person out rather than the first person in me in the last person out who seemed like you're arguing against yourself were arguing that the length of the delay overall is a problem and we don't think it's going to be solved just by changing people's position on the wait list but the first for come first serve aspect of it is part of the violation because we allege it's not being people are not being sent to treatment based on an exercise of professional judgment and we briefed all of that at the motion to dismiss stage where the court looked at the the substantive claims and concluded that we restated a claim under that theory but again at the class certification stage we don't actually need to reach the question of whether you use the professional judgment standard or the deliberate indifference stand fashion a remedy that makes space or beds available at mental health facilities is that is that the ultimate goal of the class is to get some sort of decree that either  ers the state to release folks who are already committed to these facilities in order to make room for new class members that would be a b would be to build some sort of tent city or something to increase capacity and three i guess would be two to order the state to spend money to build more facilities i'm just trying to and this does i realize this isn't in the briefs but it ultimate remedy for a class of individuals is to create more space in mental health facilities isn't that correct probably be the remedy although the specifics of how that would be done it be one of those three things wouldn't it and i we would not we would not advocate releasing people early because if they're in a state mental health facility then they're in there for a reason so that leaves either increasing the capacity somehow including whatever thought way the state can eat fish that we do this and do it quickly i mean obviously we don't have years to build the state of the art facilities or to order the state to expend money building those facilities and again doing them quickly so and so the tent city ideas want that i do use that term because it's obviously doesn't connote the best of circumstances but there's got to be some way to increase capacity that doesn't involve multi year construction projects so one is to build some sort of facility that attaches on to existing facilities the other would be to actually water the state to come up with the money to build however x number of more facilities the about excessive heat in the prisons and that's similar because you had again a class of people everyone was affected by the common policy which the common policy was defined as allowing inmates to be exposed to excessive heat conditions not everyone was affected in the same way because different people have different health conditions some were endangered a lot more by excessive heat than others but this court said that that did not preclude the class certification under twenty three b two and the second in that case also the specifics of the remedy were not fully spelled out at the certification stage the district court's certification order did not say this is the highest maximum temperature you think keep things out although the final release you authority to support your argument i believe you state that affected that district judge effectively found that any class members claims would be typical of all of the class members what is there some authority for that proposition under rule twenty three well i think we have case law that says the commonality and typicality requirements tend to merge and technicality is simply do the named plaintiffs have the same claim as the rest of the class but the argument that you made say not to interrupt because i know you not finished your answer to that i'm interested in but the argument you seem to make is that it doesn't really matter if the named class wraps are no longer there because all of the class members are going to have the same  claim so we don't really need to name a class rep and if that's what the district court did in it he didn't just say bring me some people i'm a certified class now and i know there's people out there that can fulfill that role it did say that and i am certainly would have been better if it had named the class reps and then done the certification order but i think the record supports the determination that the district court ma because we have with the evidence is right there in the state's own declaration that describes how their system works you know they admit it's a centralized policy they say this is how many beds we have where full this is what the average wait time is for the maximum you say it would be better if he had but is there any authority for doing it the way that it was done in this case where we don't y know who those individuals or i'm not aware of any you might just end up with hypothetical clients right if you don't know how long people are going to be delayed at the jail before they get to the hospitals we can't really name people you're not sure and that's that's one part of the gerstein and currently transitory is you don't know how long anyone's claim is going to last but then the second element of it is what we are certain of is that there is a constant class of other people how can you have a class without representatives you can have representatives who have had their individual claims already mooted and that's how a person exception typically works you you would go back in with name some of those people who and why were you ordered something to a new representative well remember somebody you filed a motion to substitute right we did and we've done that actually several times each time that we amended the complaint we would add some people in who were currently detained and then they would moved out and then we would  out more and we can certainly keep doing that and we we did that immediately after the certification motion where the district court said file a third amended complaint with new class reps and then that's exactly what we did and then we filed a motion to have those new people have the class reps appointed and the district court simply we brief that motion and aware of any but i think what could be done is simply have the district court them and the certification order there are twenty three see to appoint the class reps and that seems seems like an he could amend it to name the class rupp's i think the rigorous analysis has been done it's in different parts of the record as we had full briefing on the motion to dismiss the substantive legal theories and everything that's all in the record we know the court considered that the evidence is right there in the state's declaration so the delays can be caused by independent party not before the court now we're not asking this court to decide that because this is a court of review not first but that should've been addressed by the district