morning your honor david ensor representing terry trippler in this matter i'm going to try to reserve five minutes for rebuttal time i like to first address the eleventh amendment issue that's raised in industries the ninth circuit the key case here for this issue the ninth circuit stated that because of the unique aspect of the eleventh amendment where it could be asserted in the answer and then held back in your back pocket as you litigate through the case and it's different is that recall i was on the panel in that case you were and what happened was that the state stuck it in the answer and then lay in the weeds with it didn't make a motion or anything waited to see if they went and then after they lost they took eleventh amendment you can't touch it no it was the state asserting it all or all the time or it up charity that purported to be the state decision of the ninth circuit makes it crystal clear that the entity blind industries never ever put it in their answer and never raised it until just before trial absolutely and this is part of the dilemma that the district court dealt with however in the jurisprudence regarding this there is no issue about who brought it up the issue is on the ny circuit maybe  actually the way the cases talk about it's kind of a funny mixture of the two sure it's been construed as a wave of bull immunity that goes to the jurisdiction of the court if the context let's take this case where exactly as they've done they grazed it in their answer and then as the u s supreme court in a nice circuit a stealth they have asserted it so they preserved it and let's say we went to that was the problem and it doesn't change the fact later on down the road is that trichet lost you know the ninth circuit in hill says the defendant when they put the eleventh amendment immunity in their answer give spare warning to the plaintiffs to do what to raise the eleventh amendment issue that they brought up in their answer so it can be decided by the district court so what you're telling us  hadn't happened now it's your job to look at whether the district court was right in that decision and an analysis of what the district court had before it is it was wrong and the district court clearly  going to ignore numerous this issues just because of this type of misapprehension here that hey it's there for affirmative death defense they're not the ones bringing the motion so i can it district court i can ignore it but the district court just suppose hypothetically that you were to prevail on this with the district court properly for our view and your client as a condition distressful the costs and attorney's fees involved and all of the wasted proceedings the issue about whether costs can be awarded if  causes it's no longer be in the court has been addressed by the ninth circuit and they have held that standard costs can be awarded because you're no longer in the federal court and it's not a dismissal based on lack of prejudice dismissal based on lack of jurisdiction in that situation one of the issues that should be addressed this isn't something in the briefs but we raise this issue prior to that first trial i mean prior to the second trial the first trial we had title seven in this case there was a full throttle statute that gave the district court authority over all the parties that was no longer in the case at the time of the second rub is the district court underhill have to look at the issue as to whether there has been california waiving it under statute never argued never presented here and second whether there's been some sort of litigation conduct waiver underhill hill makes clear distinctions that's the critical component is whether in the answer the state has ranged the affirmative defense of the eleventh amendment misremembering i thought you know what we did was hammer the party that had lain in the weeds until they lost and then tried to say none of it counts i think and it seems to me that you're that party the party laying in the weeds actually i think you mr understood remembering hill remember him yes and for example a straight delicate issue of how to deal with the supreme court opinion but ultimately what we did stuff i actually think you're confusing it with another came up yes because it's he was not on this panel and so i believe you're confusing or a lot of cases right now i can imagine you know what happened in hill is the state entities had never put in its answer the eleventh amendment never done it never brought it up until just prior to trial after they'd lost on summary judgment they were getting a big clue they were going to lose then they say for the first time and in the first document a eleventh amendment the ninth circuit and trying to figure out what to do looked at two prior ninth circuit cases gambro and ask and in both of those cases that ended been litigated substantially before the ninth circuit before the eleventh commandment was brought up crystal clear so in both of those cases where there was no waiver an eleventh amendment was applicable both of those the state entity had the decision it inhale that's what we have here there was absolutely it's ending answer not once but twice with the supplemental answer two years later so i can understand absolutely kill specifically says timely disclosure of the immunity defense provides fair warning to the plain it who can request a prompt ruling on the eleventh amendment that's the ninth circuit district court said it's not even going to consider it because as i pointed out they think the district court thought it was something that the defendants only could be raising waiver is employed mr poole as it supervisor that had his direct supervisor being the court executive officer and the presiding judge no question about that that's the supervisory chain in the when there was a consolidation of the municipal court in the superior court in california the budget aspects changed dramatically and we had testimony from presiding judge crone on the stand that what happened afterward you come up with the idea oh yeah we did leave eleventh amendment in our answer for somebody the other side it's just it boggles the mind and i can understand this w amendment lose in this situation when the eleventh men win when there was no longer any federal jurisdiction over the superior court after titles that was gone in this case prior to any other trial prior to any think any motions in limine a the plaintiff made its request to the district court that the district court apply the eleventh amendment that the defendant in their answer so when we brought this to the district court there hadn't been that trial where there was no jurisdiction over the superior court there hadn't been the motions in limine if we had known what the jury verdict was going to be we raised it before and that as i mentioned very close line on how that works what it does have to do with is they have raised that immunity they have not waived it there is no authority for the court to exercise its jurisdiction over the state once it's been rainy days they can raise that supreme court precedent if they preserved it which they did they can then raise it in any time  say the whole federal judgement based on the second jury verdict is null and void that is barred by limitations from filing the case against a court anyway i don't believe so your honor i don't believe that that would be the case at all good morning my name is michael sam i represent the county of lake in the lake county superior court i have co counsel here dana simons who represents lee pool and i'm going to allocate my time so that we both can make a pre this court in the heel versus flying service industries case was pretty clear to say the eleventh amendment is an affirmative defense of the defendant it is not jurisdictional and it can be waived up to or the ninth circuit was clear to say that it is an affirmative defense it can be waived and what the hell case also said is that it is waived by conduct of the age of ten dand who has the immunity that is incompatible with the intent to preserve the immunity so if you go ahead and you seek the jurisdiction of the court in litigating affirmative issues on the merits as the county and the court did in this case and has done for clear to indicate that and now the supreme court in the lapidus decision versus board of regents which we've cited and they don't reference has been very clear to indicate that it defend that  entity defendant can waive the eleventh amendment and unity by its conduct in that case it was removed by the defendant to the total court and that's been followed in this circuit in the bank of lake tahoe case but in this case we have more than just waiver by conduct we have statements made on the record in the courtroom judge alston when she first addressed this issue hearken back to the fact that after remained of this case from the ninth circuit which happened in july of two thousand we went to a case management conference in october of two thousand and she asked us there she asked all the parties there she said there are no more federal claims do you want this case to remain in this court's in this court or should it go back to the state court everybody said we want to stay here in december of two thousand the same question was raised again by the trial court and we all acknowledge we wanted it to stay in the federal court and then the plaintiffs go on and after that they attempt to amend their complaint to assert a new state court cause of action and in doing so they assert jurisdiction under thirteen sixty seven pendent jurisdiction of the court supplemental jurisdiction well that motion was denied for no other reason then we go on and what what gave rise of course to this whole effort to get to get rid of the federal jurisdiction is that the ninth circuit had issued a decision in color versus in or tell technologies which came in july of two thousand and one and after that in july of two thousand and one we had a telephone conference with the court over the issue of case management in the trial date because the trial date was then being sent not one word  about the issue of eleventh amendment immunity by the plaintiff or the defendant the issue did not come up in this in that court until the county in the court had made a motion for s judgment raising the affirmative defense under the under the colar case and the plaintiffs responded in two ways they responded against the motion on the merits and they said this court should decline to exercise supplemental jurisdiction that was in their opposing papers at that point they said nothing whatsoever about the issue of eleventh amendment immunity we then went to  issue go to the jury on the affirmative defense under color and secondly that she was going to retain supplemental jurisdiction because she thought the parties had waived any issue over that and that under the standards of gibbs that she ought to retain it it's only at that point having heard having heard the tentative ruling that they say well all of the sudden this court doesn't have jurisdiction under the eleventh amendment our response to that immediately was to say in court at that moment this is the county of of lake and the lake county superior court saying but the fact of the matter is that the eleventh amendment immunity the eleventh amendment argument here in all due respect is in the example of the legal adroitness that we have faced throughout this case and we're facing in this appeal just look at the issue of the jury verdict form that there are objective to terms of the sexual harassment well that came about because from the moment they opened this trial opening statement through all of the evidence they talked about all of these supervisors as being actors in the sexual harassment creation they asked for it and that's true even though they only had they only had the  defendant the other court reporter  as the case went on they proposed a jury instruction by which they asked to identify under the the only instruction given to this jury about the the county courts liability was that we absolutely liable for the conduct of supervisors and they identified each of the individuals who are identified in the verdict form we have checked into that we have checked it because we didn't feel they were defending anson the only one who should be identified  all over our objection that instruction was given so the case went to the jury and it goes to the jury the if you're going to identify them in an instruction then you should identify them in the verdict for and that's exactly what this court did the whole argument about this verdict form is premised on the concept that we somehow somehow this jury failed to follow the court's instructions otherwise in the court instructions it pretty clearly said this jury is to construct consider the instructions taken as a whole no particular instruction is controlling and it's to consider the the circumstances and all of the evidence that's before this jury did that they come back here once again and asked that this trial should after all of these investigations into the conduct about lee poole the superior court judge who was then the presiding judge was acting as a department head and he came to a series of conclusion that were that lead pool had engaged in conduct which violated three county policies and one that there was a failure of good behavior which was  repeated discourteous treatment of the employees those were the three findings that he made and to support those findings he cited fifteen different factual scenarios some of which treacly some of which did he never made any finding about which of these factual scenarios well within which category a violation so by the time he gets done he said you have violated these three rules of the late county personnel rules and here are fifteen circumstances where these violations were shown in the investigation that was undertaken in your dis leetle appealed that to the lake county board of supervisors under the county personnel rules which he had a right to do and the matter went ahead from that point on as a default proceeding pool never appeared in contested anything happening before the lake county board of supervisors and what the lake county board of supervisors ultimately did was it took the matter under submission based upon the record that was before it and  made a decision that because of that we're going to we're going to affirm the the findings of judge prone and made a decision that he should be terminated and that was the end of that what has happened now is that answer to the amended complaint that with while the appellants are seeking to hold lee poole bound by the eleventh amendment on the basis that he was a state employee which we believe is incorrect and not borne out by the true state of the facts which are that lee poole was hired by the county he was fired by the county he was paid by the county wouldn't matter if he was if he didn't plead eleventh amendment for certain anyway well i would agree that that's correct however there we didn't plead it and they're still saying that we're bound by it so i'm offering other good explanations for why it's not applicable to him and the and the seminal reason is that if there was you know one other point is that the board of supervisors findings in exhibit ninety eight at pages one fifty one one fifty three concedes that mr poole is a county employee as well i  on behalf of mr poole the raising of this issue it's a delay tactic and and it's time to form shop which we think should not be permitted by the court the remainder of the arguments i would join in that mr spent officemate on the issue of the eleven amendment on the issue of supplemental jurisdiction i reiterate also that mr poole consented to the jurisdiction of the district court as did the defendants as well as the plaintiffs only on the eve of trial when they were facing an adverse decision by the court did they raise the issue that the court should not continue to exercise supplemental jurisdiction and again the timing of that is highly suspect and appears to be manipulative mr poole has always wanted to have this matter put behind him and finalized and we hope that at this juncture that will finally be the case because we're talking about allegations that were first raised in september of one nine hundred ninety three we've been now through two jury trials and you know years of proceedings and we hope that this matter will finally be put to bed you know the issues of fairness judicial economy and comedy all weighed in favor of having this matter resolved at the district court level we've counted seven times where that has then we raised and briefed by ass and decided including one time in the in the first appeal mr pool was never given a trial until we went to trial for the first time in judge wilson's courtroom on the issue of whether his conduct amounted to a violation of the ha the issues underlying the case in the administrative arena or whether he violated the county personnel rules and the appeal to was was that the question on the appeal was whether whether the whether judge chromes finding about who the allegations were the findings said that he violated and excuse me the findings by the by judge cronin the and and the board of supervisors were that the the conduct was discourteous and amounted to sexual harassment but unfortunately at that time there were also more than one accuser so and there's no specific findings about whether it was  or another person that were the subject of the treatment so if it would not have been fair in any way shape or form for there to have been judicial stoppel or collateral estoppel for  in their case in chief and the evidence to the court we vigorously objected to the presentation of any of that exhibit which was one eleven which was the transcripts of the interviews that  did with all the witnesses in the course of the investigation he did judge ilkeston ultimately admitted the exhibit over our objection but did not allow our opponents to play or to cite certain portions of it into the evidence but but you know a fact and that was it was admitted for a limited purpose for what judge crowe knew at the time he made his decision however judge did not prohibit them from reading selected portions of that exhibit to the tune of twenty minutes of their time for closing argument to the jury so we had little snippets of the most sala inflammatory statements that were made without context and so in essence they got even though it was an argument they still got the benefit of letting the jury know from witnesses who were not present at the trial what certain people had said about certain topics so i think that you know they got the benefit of that without to our great prejudice so if you don't have any one of the things that the questions from this court bring out to me is this whole thing about the time that this case how long it went how many trials when we had the first trial we had a title seven cause of action square in the case title seven trumps the eleventh amendment night circuit has held that the u s supreme court and here's just recently confirmed that concept so we had no ability to get the state or the pool or one or both out in this case the first trial eleventh amendment was something raised but title seven trumped when we were sent back from the ninth circuit the first time there was no title  case anymore it was gone the only thing left were state causes of action and it's then that we re the eleventh amendment prior to the next trial prior to all the pretrial aspects the case has been around for a while it changed and after it changed we had a new situation a new facts what one thing i wasn't asked about that was brought up here and it had also to do with the prior census back thinking there'd be retried the us the california supreme court in johnson versus loma linda linda issued a very critical decision and it said if you have a in missed rate of decision whether it's an internal grievance or something more formal than that and it has to do with issues that you're raising or are being raised in a later case you have to have that decision if you don't like it you don't like the findings reversed on mandate you have to do that otherwise are binding in this situation mr poole had that internal administrative grievance procedure proceeding he had appealed to the county board of supervisors they had a hearing he presented evidence in the light he chose not to be there personally but he had that hearing and he had a decision this asians one fifty one in the record that's decision says that he engaged in sexual harassment that decision incorporates findings one through fifteen of judge crones report it says we incorporate these look at  grounds that it didn't force that decision but this is a different issue this is now only if a lawsuit involving state law claims we have an intervening decision by the california supreme court establishing a new rule a new policy a new directive that's mandatory not discretionary and that mandatory directive is if you have that administrative finding and the parties are all the people here that is binding and that binding decision was that leave pool had sexually harassed somebody and and incorporated the findings that show that it was cherry church let's look at those