next case on calendar verses mess are sometimes calexico and for those in the audience today this case is a little bit unusual because only one side is arguing when we asked law students here today that's not how it normally happens but this is one of those rare times you can tell your classmates about this coleman thank you your honour's and if it please the court my name is june coleman and i represent appellants and  nonparty charles messer david kaminski and stephen watkins who are the attorneys for collect i'm sure the court is aware from the briefing that they were sanctioned by the district court under section hundred twenty seven for frivolous argument regarding constitutionality of a california statute the issue is whether the district court abused discretion when sanctions  attorneys abused discretion and sanction attorneys for arguing constitutionality of the invasion of privacy act in their most defendants motion for judgment on the in this case the court specifically cites to three things the court argued that or rather the court held that the motion was frivolous and reckless because the argument that the statute was on sconce to show because no expectation of privacy in phone call with in a phone call was frivolous because the california supreme court and flanagan versus flanagan had addressed this issue the california supreme court in kearney versus salomon smith barney that addressed this issue and that reliance on the illinois cases  well the district court held that they could be sanctioned and there was a district court case unpublished in california yes that helped that the constitutionality argument did not prevail they were correct but are you saying that when there is a adverse decision in a district court within your circuit that you're going to get same ssion if you make arguments that are contrary to that i am not suggesting that your honor i am actually suggesting that it would be inappropriate and abuse of discretion to sanction an attorney for making an argument where there is no precedent and the only case that is addressed it either on the state level or the federal level is a district court trial judge i understand that i i'm just trying to decide where we cut the line between where you're suggesting that we draw that line between an argument that  is if if if your did you think you would be in a stronger position if you're arguing with simply this statute is unconstitutional and not cite any authority at all no i think i'm in a stronger position because i can cite two illinois cases which addressed the same legal arguments alvey it with a different statute but the legal analysis in the illinois cases is very a political to this case well i think that's what really ticked off the district court was he felt that those california that those illinois cases were simply different they raised day over breath argument that you're not raising in the statutes for very different and my understanding was the court wasn't so upset that you made the argument the general argument the court was more upset with the way you advanced and supported that argument with in appropriate precedent and so i'm trying to decide whether you whether we look simply to whether the argument was ultimately not meritorious or whether we have to worry about whether the way that you made the argument is what triggered the same actions well i think it's important to remember that the attorneys did not argue that the illinois cases were presidential what they argued was that the analysis was similar in the illinois know this wasn't similar they were dealing they were dealing with an as applied over breath argument your client is arguing as as as an applied as a pro miscue illinois was dealing with facial and they were dealing in your claims dealing with an as applied argument with the statutes that are really quite different but the illinois court's analysis was is the we're activity that's in compassed in their statute which does not support the governmental interests and that is the argument that's similar to the case to the arguments that were made by the attorneys in this case that is that the caught there is conduct that's covered under the statute that does not support the governmental interest same argument that was made in the illinois cases and so i understood that the district court was offended by the use of the illinois cases and found that the illinois statute is different from the california statute but the analysis whether that over breath included activity that is not supported by the governmental interest is still pertinent in the california case in the in the city is case now with the court have sanctioned the attorneys if they had not noted to the court that there's a similar case out there applying similar recording statutes i'll be at their different and pointing that out to the court i would suggest to the court that to this panel that the court is very interested in knowing what authority is out there that if failure to say you know cite to those cases might lead to a feeling by the court that the attorneys write a record of the statements go back and write down what had been said on the phone that the plaintiff's theory is that he can recover if it's audio recording well that that said if that tourney's may have in artfully argued that issue in people versus clark the court did note that two things first of all that if you can write down everything that said verbatim which i think whether you're talking about the illinois statute or the california statute you can do that legitimately and lawfully that that provides a more certain record i'm sorry that the audio recording provides a more certain record than you can writing and so there's some question as to whether it really serves the purpose i don't believe and i agree that this was in artfully argued by the turnings i don't believe that that provides an example of over breath i think the people versus clark court also noted that you could do that because it it didn't support the governmental interests of protecting conversational privacy and so people versus clark the court explained that very example and cited that very example not for purposes of pointing out that the unconstitutional but rather that because you could write down everything in a conversation there the statute didn't seem to protect all conversational privacy and i agree with you that the attorneys in the dia's case did not argue that artfully but i don't believe that they argued and i could be wrong but i don't believe that they argued that because you can write down everything said in a conversation that that proves that the statute is unconstitutional  i think generally speaking this case boils down to the fact that this is a case where there was no precedent there was no ninth circuit precedent there was no california supreme court precedent there was no california  this california state law we have a district court at the federal level a trial court who who issued an unpublished opinion addressing the same legal issues the court in this other case that was unpublished did not characterize the argument as frivolous did not sanction the attorneys for making such an argument and we have authority in another state in illinois where they are arguing that a similar not exactly the same concert or recording statute is unconstitutional and their analysis as to why it's unconstitutional has nothing to do with whether it can be whether it's overly broad to the extent that it allows for recording in court it really do the analysis really had to do with whether or not the statute was overly broad and supported the conversational privacy interest of the government and under these circumstances where there no precedent when there's persuasive authority perhaps when the unpublished trial court decision does not characterize the argument as frivolous or sanction the defendants for making such an argument that it's an abuse of discretion for the trial court in the d a s case to curtail that argument and i think that such holdings would ultimately end up chilling the attorney's ability to  advocate for their clients thank you very much counsel thank you the argument in this case thank you counsel for that argument this case is a minute for those who are curious as to why there's only one attorney here