case number sixteen dash one nine eight two city of rock for person caleb sauer at all and fred hack at all argument not to exceed fifteen minutes per side this masterson you may perceive the appellate man please the court mary mass or whatever the issue here is whether the federal courts have subject matter jurisdiction to protect that judgment and heard in earlier the original case from collateral attack in a state court and it's our position that this court does have ancillary jurisdiction to effectuate its judgments including consent judgments there are any number of cases that stand for that proposition one of the cases we cited was north church which is a decision from this court that we think is controlling individuals in this second federal suit entities the jurisdiction is based on the jurisdiction in the original suit and the entry of judgment  original case in the supreme court told us that in the local loan company case which is also cited in the briefs here it's unquestionably the case that the original suit there was jurisdiction the claim is raised were federal constitutional claims under forty two u s c nine hundred eighty three involving in attacked on the city's zoning under various theories constitutional theories a consent judgment unlike a mere settlement agreement with step and dismissal gives rise to insular jurisdiction because by entering the consent judgment the court has put the imprimatur of the court behind that judgment and that's really the basis of our position well i mean you really have to show two things i mean not just jurisdiction but entitlement to an injunction or actually that the just court had the power to issue an not permission to intervene in this court in the district court and didn't specifically did not have their issues resolved well there let me let me try to respond to that in three ways first of all the individuals who tried to intervene in this case had every right to file an appeal and to challenge the determination about whether they were properly denied their right to intervene they chose not what is the injunction xs that matters under the anti injunction act it seems to me there are cases which allow that exception to apply to non parties in this goes back to the notion that when you have an entity or and agency which is legally obligated to represent individuals such as citizens in that circumstance the nine parties are going to be bound by the injunction or any case where you know i mean your argument is are recalled from your briefings this elected body represents these people there go we hold these people are bound by the judgment to which the elected body consented is there any case that that you can point us to because i think there's a d c circuit case that would go the other way is there a case you can point us to that would support this elected representatives theory of binding non parties i would i would point to the the why i would point to the michigan case which i know was not controlling but certainly applied this rationale bear versus varieties and i would point to the restatement of judgment section forty one in particularly that comment and it talks about where parties have a legal relationship so their parties in the first sued are accountable for representing nine parties is this really i don't know if it's a legal relationship i mean well they have a say you oppose somebody at every turn and they get elected and now now you have a legal relations absolutely the city the delegated properly elected officials of the city and the city is an entity and has an obligation to represent that except that in if even if that c sometimes be true in this particular case the city settled the case on terms that were clearly not representative of the position and interest of the and you know they were denied the opportunity to have time recourse in the district court first it still folks have recourse against their government that's unquestionably true and these plaintiffs had recourse they could have taken an appeal furthermore they could have come into federal court under rules sixty be inside to change the judgment if they felt that the judgment was in some way that's a high standard i recognize but what is not permissible in our constitutional system of dual courts is to have a valid judgment a judgment that is validly entered by a federal court with all of the the authority of the federal court behind it and then go into state court and i think it's important to look at their complaint this is not a complaint where they are raising individual rights individual constitutional claim or anything of that nature or what the complaint does is simply collaterally attack the federal court judgment what they say is we think that judgment is wrong we think the judgment is  we think the state court should overturn the judgment that candidly that right ends at least how this happened i mean ordinarily when you are dealing with a litigation that's going to end in a consent decree you have to take care of interested parties who are you have to proceed to really take care of them in some was so they can be heard in opposition to the settlement in opposition to the consent judgment i mean that's been happening for decades in the federal courts but that didn't happen here in the context of class actions for example there is a whole settlement procedure in the kind text of settling constitutional claims the city provided the process this this was particularly in light of the efforts to intervene no that's judge givens point is is even more and she noted more will in those folks who tried to intervene are the ones who went to state court right that's correct why weren't they taking care of they were they they sought to intervene they certainly were aware of the nomination though that wasn't considered apparently the dissenting neighbors were not in compassed in the mediation the settlement because the district court concluded and this is not unique to this case there are there are cases and i'm sorry we didn't brief that in which residents seek to intervene in land use disputes and the courts have sometimes allowed it but often they have said your interests our common public interests the common public interest are being handled by the government we're not going to allow you to intervene and that's what the district court was thinking here and then again underscores the point that i'm trying to make which is consistent with the restatement of judgments the u s supreme court discussed it in a particular context in the washington state versus washington commercial fishermen association and there again there was an effort to get around something in the courts said no the state of washington was representing all of these individuals and so that's been raised in the state court is not some new or different titian raised in litigation that are two different things you know and there was no adjudication of the section one nine hundred eighty three claim i mean there's nothing that no one can see in the record the district court said there was no merits adjudication of the one nine hundred eighty three claim there just wasn't here the the district court said and i think this is correct that the discussion about the supermajority requirement was not a part of the discussion in the district court when the consent judgment was entered but the consent judgment is a very detailed judgment regarding settlement of the original well bicycling there was nobody in the district court who could have challenge whether the court should have approved the consent judgment based on the asserted validation of law that is because the person in the federal court the entity in the federal court representing the citizens was the city the government and and if you think about it which chose to settle on terms that arguably were in direct contravention of the requirements of the law will would i would not agree with that characterization at all in the sense this sense you have a claim a claim which if the city proceeded through trial and lost they could easily be on the hook for millions of dollars plus attorney fees and there are other cases in which that has happened regularly in this court would question and in other court court my name is mike homier and i represent the defendants of polies and i could have thought of ten different ways in which to spend my birthday today but this was it i want to on she's certainly a skill of a lawyer the problem of course is that she was not involved at the with this case and i've been involved with it since day one i say that only to provide the panel some my clients sought to intervene in this case was because they believed that the city might try and engage in some settlement negotiations which might rezone the property what happened here when my client sought to  intervene judge now i've said well we're not going to let you intervene because you essentially won you require to protest petition the city could not obtain a two thirds majority vote and so the property was not rezoned at that time subsequently developer filed suit against the city we tried to intervene in that case on that basis and judge have said you won they didn't resign the property you won i don't understand their reasoning at that point she believed they were trying to change on winning outcomes that the developer had sued but the city really other than answering had not done anything but you're right i believe we still had an interest in a judge nath disagreed and it was arguable under the providence baptist case whether or not our rights had expired at that point ok fine mr masur on says what we need to appeal from that decision why don't think we do first of all it's arguable whether or not she was correct or not but second that was not the action from which we're now filing suit in state court what happened subsequent to that after we were denied the intervention is the city and the developer we believe colluded with the this whole thing we believe was collusion because the city really wants this development i get it but what happened then was the city in the developer agreed to rezone the property and they go to a meeting where the city council is going to approve this they go into a closed session they don't disclose the contents of any settlement agreement to anybody at that time they come out of close session they provide no notice no hearing no opportunity for us to file another protest petition and they reside on the property and they can't get the two thirds majority vote otherwise required by statute they just agreed to to the settlement agreement to approve the settlement agreement in that close session that's correct so that agreeing to a settlement agreement isn't subject to the two thirds requirement that's kind of the move they made here that's the way around the statute that's exactly right and again with no notice no hearing now the issue is whether it's a legislative action it clearly is i mean if you look at the mi zoning enabling act it says we have to file a protest petition before final legislative action we did that the first time around and then what they've done is circumvent the statute disenfranchise the public and now we have no notice no opportunity we were left with only one choice and that is it's a pure state zoning law claim to file in circuit court to say that the not a collateral attack on the consent judgment but that the city's approval of any settlement agreement at that meeting was unlawful you cannot legislatively by contract agree or by settlement agreed to rezone property because it denies my client's the due process the protest petition the hearing all of those things that go along with that under michigan statute what is the time for i'm here the time frame for well i mean how did you learn about the rezoning in the terms of the  consent judgment and then what happened did we i mean it was a pretty quick that we we learned of the contents of the consent judgment after it was filed with the with the court and then not long after that we filed suit there were some other plaintiffs who joined who were not plaintiffs in the original intervention who joined and then we filed suit in circuit court and in circuit court i i think it's important for the court to know that the circuit court what was going on declined to do anything about it at that point because he was concerned about the comedy between the state and the federal courts that's when we went back to judge naf and judge have said i don't have jurisdiction over this case the already act doesn't give me jurisdiction there's no ancillary proceeding because the prior case was closed there was no retention of jurisdiction and all the complaint or accounts had been dispensed with would you agree that i mean would you agree that the court federal court in this case that we're hearing the appeal and does have ancillary jurisdiction but your argument would be that the n t injunction that prevents the court from issuing an injunction that particular kind of relief and so the dismissal should have been stated claim rather than want of jurisdiction i argue both well i submit that it's both ok so let's talk about the jurisdiction issue the ancillary jurisdiction is ancillary to what because again much of the first case right might of the court's own judgment right and so my argument is that i'm not i am not collaterally attacking the consent judgment what i'm doing is there were intervening acts between between when we intervened they gave rise to purely state court claims that then we filed in circuit court can't county circuit court in that case said we don't have jurisdiction because there really is no ancillary proceeding that case has been closed and so now we're looking at a purely state court matter having to do with actions of the city council itself what i mean but the local law in case from the supreme court granted it's one thousand nine hundred thirty four but it seems like it's still good law i mean it says the court has jurisdiction to enforce its own judgment irrespective of whether the court would have and if this were this brought as an original i mean and that makes sense you know i mean if somebody is attacking a federal court judgment the court has jurisdiction to see if that attack is actually happening and to enforce it if necessary so the court could have jurors i mean it has a judgment here it would have jurisdiction to see if in fact you know it's being undermined in some way that's not permissible but your argument  i'm just trying to see if we can narrow this a little bit yeah and i think and i think it's arguable but i would also you know the local long case also said the present case is not within the jurisdiction of state court but is a dependent suit brought to vindicate degrees of federal court of bankruptcy entered in the exercise of a jurisdiction essentially federal and exclusive in character and it is that situation to which we address ourselves and to which our decision is confined ok so a bankruptcy case i'll grant you that right and so the point is you know if if we're talking about exclusive federal jurisdiction i get it but we're not we're talking about purely a zoning matter under the michigan zoning enabling act i mean what about the federal judgment says it's going to be a change from our to the pod and now you guys seek a declaration that it goes from that it's our to not i mean should we be concerned as a federal court that you know dignity of the federal courts is being eroded here by this sort of brazen unwinding of  business i think what the court should be more concerned about is the fact that in my opinion the city and the developer have run a scam on the court by entering a judgment which is clearly unlawful under state law and so now the burden is on federal district court judges to determine whether each and every provision is a lawful under state law and this kind of play out this lets that you know you k that point what happens it's a good question and i don't pretend to have all of those answers yet i know that when this issue was raised with judge judge now i think correctly so said the circuit court is more than capable and competent to handle this issue on this owning issue we didn't litigate this zoning issue in federal court that you know i don't know what that does and to the to the federal judgment which sort of gets back to this whole notion that you know the city says well we could have raised or brought a motion for relief from judgment were not parties we weren't part of the city is can be tough to bring sixty b if you're not a part it is in this and the city has consistently fought us in trying to help them either defend this case or get in this case showing the problems with the proposed development it's not as if our interests are aligned in any way shape or form if anything lined my clients over and over and over now my clients believe that the development is way too dense for the area that it's in but they have an opportunity then to voice their concerns in the proper forum and in this case it just happens to be federal court i heard or state court i would have been fine intervening in the case in and litigating those in the federal court but we weren't given the opportunity but it was gotten an injunction is in state court but i would suggest i'm not sure they're going to be successful there either and that's because you cannot legislate by contract to deprive my clients of their opportunity not only their opportunity notice in hearing but an opportunity to file another protest petition if they thought it was advisable and like i said when when they when they approved the rezoning by way of approving this settlement agreement they couldn't muster the two thirds majority vote again so they had at least to come and for members who believe that it was wrong to well i didn't write michigan law but there are protections in there for people who may disagree and that is for the public to come out and talk and say these are our concerns and certainly that wasn't it here too the second time around the city in the developer again we believe colluded from the beginning this was a sham lawsuit and it was done to avoid this two thirds majority all we're asking for is our day in court that's all if you have any other questions i'd be happy to answer them thank you let me try to make a couple of points i know where and it's casual first i have avoided saying much about the ad hominem attacks that have permeated the brief but they have been so intense morning i simply want to say there's nothing in the record to support collusion or anything of that type and it's not an appropriate basis for decision here secondly the minutes of the meeting at which the consent judgment settlement was approved and an open meeting of the city show that sour at least was present because he made comments during the public part of the hearing now to be sure there was no hearing and settlement but the terms of it were all disclosed this is not a question of the direction of that it was not that's quite correct because under the michigan open meetings act discussions of settlement  properly held in closed session for obvious reasons if the settlement is not approved the city will have given its strategy revealed they amount of risk and feels and all sorts of other things and that's that's the way it's handled this is not like the inverness case which the plaintiffs cite in that case the consent judgment delegated authority without any particular  for five years into the future in the courts said that's not appropriate that's not this case this is a case in which in the course of litigation as to which there was substantial risk of an adverse outcome with a great deal of adverse consequences to the city the parties in gauged in a lengthy mediation and out of that mediation came out with a settlement which changed the zoning in some ways required all sorts of environmental and the only aeration and that settlement was properly approved by the city under michigan law the city opposed their intervention i believe it did that would seem to be sort of the flaw in this area i mean you know we kind of came together in a tough spot well i mean if you have a bunch of citizens who are directly affected and you're going to get sued by them then they shouldn't  the intervention they sure brought them in made them part of the mediation and work it out there and not doing that creates a problem especially when we have a real limits on adjoining state courts teach a cli it may risk that they're going to be issues down the rug i mean everybody's just seen this coming and it you know i mean it was not it's not a it's not a surprise that your ear which is why talk had they done that they could have raised these issues they're now raising in state court in this court in this court would have had the opportunity without the friction and the potential for two judgments one from a state court and one from a federal court both instructing the city that the zoning is to completely inconsistent things that's a problem and it is a problem in terms of undermining this court's authority in its judgments the proper way to attack them is to come back to the federal courts not to try to get the state courts to override the federal courts i think your time is a fact i know it's