time for rebuttal if i may in this case for the first time in the decision below the district court held that the phrase broad and legitimate discretion applied to doctors and physicians making decisions to end life support of their patients without their patients consent this is done in the context of article three standing the court actually held that our clients had injury in fact under article three standing which is normally the highest hurdle but then it proceeded to find that they did not have causation and redress ability and we think that the way the court approach causation redress ability was a significant a perjurer from what this court has said about those two things as well as what the state courts have said about patients rights of self determination so i'd like to focus on that  we can can get to that as well but on causation and redress ability what the court has said about article three causation particularly in the maya versus in takes corporation case is that a statute that says all ninth circuit judges are dead would i be dead and would it violate my right to life i'm confused about how the announcement of what could a says actually affects or causes any problem with a right to life or a right to make medical decisions sure you're out of what happened in this case what we've played is that the causation is that the but the courts in this state first the pla county superior court and then the los angeles county superior court looked at the certificate that was issued by the director and essentially board any further evidence as to whether or not our client actually alive well maybe they were wrong i mean i think if you'd like us to review the state court decisions you're going to have a record feldman problem so i'm not sure we can assume they were right or wrong we're looking at the statute and we're trying to figure out does the statute cause anyone to be dead and i don't see how it does sure and that goes somewhat to the merits as well your honor which haven't been been raised been briefed below but our theory is we've played this in a number of places throughout the complaint starting in the introduction that imposed some mandatory obligations on the doctors and physicians that they felt constrained to act within what are those mandatory requirements take a look in the record one of the best places that this is set forth is in a brief by kaiser page but i think that look at your i think you're bringing a chap a facial challenge to khuda so how do i look at what any doctor at kaiser says done i have to look at what the law that you're challenging says and i don't see any mandatory requirement we're actually bringing both your honor we're bringing a facial and as applied can't be bringing in as applied challenge can they well actually they can because they were assisting this fund say in in placer county and then again in l a so i don't think you can use resources on the same litigation and count that as an injury for organizational standing can you well i don't know why not your honor i think these are cases say you can't that i will defer to your honor's recollection that i'm not aware of those cases but they are bringing the facial challenge as well ok so let's let's focus on the facial challenge for a moment so if there's a facial challenge you are sorry and tell us what's in the record but i'm not sure i maybe you can finish that and explain why it's relevant to facial challenge as sure so the director's position here is that they take a hands off a pro with the definition of death they don't enforce anything and there's a lot of reasons why we think that it's belied by sections the one hundred two thousand and the health and safety code but laying that aside as the director is saying it's all on the doctors and the physicians to make the ultimate decisions the physicians are saying the opposite and so the brawn and legitimate discretion that the director is trying to hand to the physicians as the basis for article three causation is what the physicians in cern and the metal providers are handing back to them and that's what the kaiser brief shows what are the doctors saying what does the page of the record that you're pointing to in the with the state as with the legacy your problems are with us we just we just follow these mandatory legislative duties and frameworks and so the issue with causation again we think the district court imposed standard i looked at the pages but i don't see any it doesn't seem to be a declaration it seems to be a brief so i maybe have the wrong date it is a brief your honor this was kaiser's position it is a brief that they submitted to the last what are you saying that the doctors that the doctors pushed back when when we first they were part of the case originally as defendants and so to the director's point that they have all of the discretion here this broad legitimate discretion the doctors point is no we don't you're suing the wrong person don't look at us because we're bound by the state mandates what bound  and dated statutory framework within which physicians in the state of california are required to make determinations recording whether a patient is legally dead is that what you're referring to that's the first thing your honor and then the second thing on page seven o two is where they said you're suing the wrong person you need to pursue the the director so it's a you are required to say if your dad so there may be required to say i think this patient dead according to kuta but they're not required to correlation it's used correlation as the standard and so we think the district court's decision here mirrors more of the dissent from the bonneville power case that we've cited it used a standard that was between the way that doctors act within the framework and the state's definition of that and then the dreaded and what about before kudo were they acting the same way well there's a line of cases from the state beginning with we've talked about the barling case the pouty a case of through the donaldson case and even dorothy where doctors would go to court because they were afraid to turn off life support because they thought they would have civil and criminal liability so before khuda they did have great hesitancy to do anything in regards to turning off life support and so what the court said in dorothy was you don't have to come to court every time you want to turn life support turn off life support as long as you have the parent's participation and this case made that crucial turn away from that to say and put this circuit  conflict with the state courts to say no forget that you don't have to have the parents power to ship participation anymore we think that's what led to the constitutional injuries that we're talking about here and if i could just make quick point on  there is someone who is in a hospital on a heart and lung machine is the only way for that person to ever be declared dead in your view if the relevant relative says they are well i think that's actually what the state is to establish but i think your honor that that really goes to the merits and i think that this case needs a lot more briefing in the court below i think we have to get past article three causation and redress ability first and i think that's where the district court made scares us with this court is being called upon to address here and says to redress ability i just want to know that what we're asking for here the change to this the definitional to millie the change to the death certificate is actually mirrored by what the u s supreme court did in its landmark same sets marrons case just a few years ago where the lead plaintiff in that case all he was asking for was a change in the state definition and a change to the death certificate of his partner and he sued the director of health of the state of ohio in order to do that there that there were other plaintiffs there so the court really didn't have to do heavy lifting but  you're if you're at four ten let me pose one question with regard to reversibility what's really it's stake is there is there money someplace or there are benefits or is there some real world impact and i'm not denigrating the other kinds of impact but what is it the the plaintiff and sake a has to win or lose number one is dignity your honor this is this case is a bad dignity for this family and for the other plaintiffs life legal defense foundation this case is about remedying an injustice that they see repeated again and again and again and so on seka so for the family itself as opposed to the organization ten anything at this point remedy the interference as you see it with the right to life changing the death certificate would bring them some measure of relief it nothing but it seems like in the complaint what you say is that might get them insurance or government benefits i don't see how that brings back any life or gives anything related to the actual constitutional claim nothing can and can call their son back to life but this is what can done to bring them some measure of relief does the injury that you say is continuing which i take it is there a denial of insurance still continuing no the injury there were asserting on behalf of the fun sake is what happened when their child was taken from them so are there any benefits at stake is it mean again i'm not trying to make a ruling on dignity but is that  all this is about now no it's not your honor because if any benefits that would flow from this would be ancillary and would be have to be pursued another way and in another forum so you're saying there are no insurance benefits at stake right now i don't know whether there are benefits that could come to this family as a result of the ruling but what they're seeking right now is in this case is dignity willing to stand your standing claim is based entirely on the dignity element is not base and it is primarily for the family but again life legal defense foundation has its own interests here and that's why there are coping important i know you have no interest in this particular plaintiff's death certificate do that none of the death certificate your honor but in the case certainly has because they were they were a part of it and so i guess we talked about this before but your your argument you're trying to say the l d s can bring in as applied challenge and so has some interest in the particular family are dodging that they can have from the supreme court and roker feldman the most recent most authoritative discussion about that was in the eggs on mobile versus saudi basic industries case and what they said in eggs on mobile was it was a unanimous decision it was priem court said we've only ever applied rooker feldman in rocker and in feldman we don't we've never applied it in a case where there were parallel federal and state court cases which is what we have in the present case one the federal case was initiated before the first state case ended and so i think if you read between the lines  in the eggs on mobile case it's unlikely that supreme court will ever apply roker feldman again but at the very least they're not going to apply it in a case like this for the organizations organizational standing an as applied challenge are you for the organizations injury are you relying on the on the expenses for the fund seconds on this litigation is the only injury to the organization that you think supports your as applied challenge the money that the organization spent helping the fund seconds with this litigation well it's the money it's the resources it's the time the factors that we've traced for from the standing sure they had both a specific members that they were we're representing in that case as well as a broader broader rayman a purpose or anything on the record that there is a monetary problem  that your clients would incur if we affirm they'd they have incurred significant expense your honor in transporting their child to  guatemala for a season in bringing him back to the united states undoubtedly would the difference in the date of death make any difference to their ability to pay those bills i don't know that your hon because that would be would have to be pursued in another another forum that isn't something that's before us now to show it is not is not as it as i understand it that could actually trigger something that has chance may please the court seem see on behalf of director smith the underlying facts of this case are undoubtedly tragic but the district court correctly how that after three attempts the plaintiffs here could not possibly alleged they could as brain provision caused doctors to remove israel's life support and even if not for me ask you this if the brain death part of the statute weren't there if it were tied entirely to continuing functioning of heart and lungs is a plausible believe that the doctors would have entered the certificate and would have automatically ended life support your honor the doctors would have ended life support based on the underside that determination of property terminations and that israel was brain dead well but suppose the statute didn't offer as an alternative definition for death the lack of brain activity let's accept as a factual given that the finding was correct that he was brain dead but his heart and lungs were still functioning if the california definition didn't include the brain death alternative is it plausible that the doctors would have filed the death certificate and pulled the plug so to me the answer is no the doctors are operating based on the definition do you disagree with that proposition yes or on and ok think the doctors would have ended life support anyway and that's because they in that context they would have been guided by the widely accepted medical understanding that a person whose brain is no longer a demanding is dead i just said suppose the california definition did not include the brain death alternative if the only definition offered by the state is one that tied to continued functioning of the heart and lungs are you telling me the doctors would have despite the continued functioning of the heart and lungs have withdrawn life support because he was brain dead so the causal theory here that they are relying on is that in that context there would be civil  criminal liability for withdrawing life support and the reason that there would not be civil or criminal liability in that context is because it has been widely accepted in the medical community that a person whose brain is stopped functioning is not dead who does not dictate what physicians do once there has been a determination of bringing down it simply so i think you're saying that the malpractise claim would lose because of medical standards but it's still a hassle to be sued so maybe the doctors i mean there's at least some possibility the doctors would care about being sued even into the claim would fail right and that's correct your honor but it also by this point is been so widely accepted by the medical community for such a long period of time that a lawsuit like that would almost certainly either not be filed or be frivolous then why did the california legislature bother to and the statute because there were some questions about what these advances the technologies meant for various legal purposes and let me give you a few so one is in the criminal context and that's actually what spurred california to adopt the brain death understanding there was a question for example when a drunk driver hit renders that person brain dead and the physician subsequently remove life support could the driver be charged with homicide or kill or manslaughter another example was some ambiguity early on in the seventy's and eighty's about whether or not doctors could remove life support now these were not lawsuits against doctors tort lawsuits or criminal lawsuits against doctors they were in a few instances in some other states doctors coming in and saying we're not exactly sure what the right rule is here and those courts unanimous or that i've been able to find those courts adopted the widespread medical understanding that a person whose brain had stopped functioning was dead you know in this case there's a period of time between april and august during which there was pretty substantial legal activity that's correct and this may illustrate why it is in the as you just gave why the legislature decided it would be a useful thing for the state to offer up the ending of brain activity as an alternative definition to death and there were court rulings along the way in the end life support was withdrawn and i don't want to get into the particulars but while there was the threat of more legal activity i have a difficulty understanding in that context a suggestion that  when you knew the the mother was fiercely resisting and they were going to court that the statute was irrelevant to the doctor's decisions it seems to me inevitable the doctors are going to to weigh and take some comfort in the notion that the statute provides this brain death alternative and that's what they relied upon in both in april and later in coming to the conclusion that the boy was in fact dead and so the notion that there's not a connection between the statute and the actual decisions from the doctors is a hard one for me to appreciate and you are our point is just that if the statute were not doctors would follow accepted medical practice and the accepted medical practice that would be determined without reference to the statute but it's not just a matter of the doctors at that point because the courts are involved there are lawsuits and at least a couple different courts including i guess this would have been filed by that time and and there had been temporary restraining orders issued and the courts are going on their judgment of what medical practice is the courts at least taking a glance at the state statute and so i continued to be puzzled how as a factual matter we can be so confident the statute was just irrelevant it had no power no role in the causation right and in that context i think the virtue of deciding some of the issues in that context is that the courts had before them the doctors and physicians were actually making the brain death the terminations and decisions to remove life support and so some of these questions could be put to them in that context here by contrast you have what is essentially a facial challenge filed against a state official who plays no role in the determination of either brain death or decisions to remove life support so if someone wanted to bring a facial challenge to cool it up properly who would they sue our position is not in this case that there's a properly pled complaint with a very clear standing analysis and they simply simply sued the wrong the question is a question as to the standing question or to the eleventh of may well it seems like you're trying to realize the end to get out of the love of the moment so let's assume we have a plane it was standing who wants to bring a facial challenge to khuda who would they sue in a case where there's clearly jurisdiction the attorney general may very well be a proper defendant in that case because he is charged with defending the legality and constitutionality of california state though so should we if that's the problem here in your view should we remain so they can name the attorney general instead of smith it merits issues but as to this ex parte young issue i have a lot of trouble understanding why you're arguing anything about whether smith is a proper defendant when where it's a suit in an official capacity against some government official it's got to be that someone can be sued so i just don't understand the point of this and it's their burden to name the right official they had multiple times in the district court for it and in any event there's no need for this courtrai you didn't argue in the district court that she was the wrong official i don't think we did not that's correct so it's a little hard to blame them for not having the attorney general in the me  plane that's correct and would it help the state to remit three man to change the complaint to name the attorney general i don't understand what point that would give us no it is an alternative basis we believe that this court can and should affirm on article three grounds and in any event there are at least two for the grounds that this could this court could affirm on the first it's mutinous which this court was talking about with my friends on the other side of the district court didn't resolve this case on those grounds but it did note that there was probably an issue here and capable of repetition the intervening review exception was probably in opposite for the reasons that you've discussed with my friends on the other side particularly given that they don't seem to be money for expenses on litigation i don't think they're seeking i think they're seeking an injunction or a declaratory judgment invalidating khuda well and then i misunderstood what they conceded as to their point that the second point then district court said the plaintiff sufficiently allege l l d s injury and i don't see where you challenge that so that seems to be aimed at the at the facial challenge that that at least  pleading they have indicated an organizational interest that would sufficient for them to pursue a facial challenge why can't they do that in this lawsuit sorry you are and that is correct and again there may be some just connect between what i understood their concession to be and what was i think they were talking about their basis for organizational stand and not the relief they sought so assuming they have standing to bring a facial challenge it seems like that's not so we may need to reach the merits as to the organization's facial future or if there were another patient who found themselves in similar circumstances and the final point was where they needed an anchor i mean you have to have a concrete example for a facial challenge no your honor i don't believe met their burden on causation redress ability and that's very similar and the reason for some was tied to that discussion was entirely the same as the discussion with regard to miss from say that is correct if it's a facial challenge then they've moved on to a different set of issues that is also correct your honor and i'd just like to come back to this last point which is about the merits and even if there were standing in this case there's any remain to address the merits would be futile california law provides ample procedural protections before doctors can declare someone brain dead and in addition the state has a broad range of legitimate interest in providing it clearing the uniform definition of death and the one that has been adopted here including the brain death the  provision is similar to that has been adopted by almost every state in the country and has been widely accepted by the medical community for a long period for nearly half a century and the disregard actually reached the merits at the t r o stage craft that is correct and we think her analysis and her instincts about them not being able they would not likely succeed on those claims were correct and that this court can and should reach those points just a couple of final points brooker feldman you know even if this park concludes that they have standing to pursue their constitutional claim brooker feldman would for the reasons your honor was discussing beforehand clearly bar their claim to amend the death certificate that was raised in the state court and the state court made a determination on that well but the state court as i looked at it appeared to be applying the statutory definition so if the statutory definition is only as to the request for relief to change to amend the death certificate from april fourteenth of august twenty fifth that's what rocker felt that really applies to well again i don't know why that's the case because that the claim there had nothing to do with the claim in front of us then that the plaintiffs accept the fact that happened they're saying they were wrong to buy that because the door opened by the state statute was improperly opened all i see the state court's ruling on is this consistent with the statute yes and i agree with that if you are so and one last final point your honour's what the plaintiffs really seem to be seeking in this case is judicial vindication of their belief that a action and that really is what underpinned that district court's decision here and why this court should affirm on article two i've got to say i don't really disagree with you there except the district court said that the organization had sufficiently planted its interest now maybe that would be subject to reexamination when you got past the pleading but the pleading is all we have now so is it really the case that there's not a case of fish and the concrete if the organization had sufficient standing to qualify as an organization because of its investment isn't that enough to make a c had sufficient injury your honor the abstraction and the lack of concreteness comes from what function is the state statute here playing in the actual injury that there though i've struggled though with whether that's the merits or whether organizations perception of causation that it was spending the resources for a reason is valid and can you point me to any case where organizational standing under the havens line looks at causation and redress ability as carefully as it seem would be a bridge that would need to be crossed but like the question is whether now is the moment and our position is that it is not ok thank you your honors thank you c will give you five minutes for a bottle when you're ready thank you your honors judge friend i think you had an incisive question as to who the state would deem a proper defendant in this case and i think this implanter is no one i think the state that the attorney general  they are they are saying someone would be if until we turn around and sue the attorney general if you take a look at the enforcement statutes in the one hundred two thousands beginning health and safety go one of two thousand beginning with one hundred two one seven five and then down through one hundred to one eighty think it's one hundred to one ninety five that actually says where there are concerns about does certificate it's the director at her initiation who is to call for the assistance of the attorney general with enforcement not the other way around and prior to that in the  within all things concerning death certificates and our position on uncut is simply this is the foundation for the death certificate statues and for her role and then i don't think you can pull out the foundation without the whole the whole house coming down so that's that to that issue as to some of the other things that have been raised on the the eleventh i'm him an immunity that's been been brought up one thing that i think it's important to reiterate is that not all statutes are in forstmann type of statutes and that's what this court spoke to  just because you have a definitional statute that's tied in and underlies other enforcement statutes doesn't insulate it from from all liability and challenge and if not now then when i don't know how much more concrete we have to get then the death of this child i just i don't understand where that argument is is coming from and so so if we thought we needed to reach the merits i understand you've asked for a chance to do more briefing career explain what you think hasn't been briefed yet yes absolutely there are significant  substantive issues which when you talk about the procedural due process the substantive due process the right of self determination and the right of privacy when we delve into all those things  think we need to be briefing on what the supreme court has said in cases like cruisin and in the globe spring case we need to go through what the state courts have said in cases like  donaldson and all those lines of cases and i'm sure the state is going to have significant things that they want to present in terms of their of their interest what they've thrown out so far for  in the public good from the in re moffitt case and it is a labor case police powers case from the one nine hundred thirty s that's not the type of state interest that's going to be able to justify a deprivation of life they haven't put forward a compelling interest in there briefly and so i think this big issue if the court were inclined to reach the merits we certainly would request some supplemental briefing on that and at the t r o stage it seemed that the district court did reach the merits but that is what you're saying that you didn't have a chance to brief it adequately before that point that i think there are significant issues at stake here that  no further questions than it looks like we have no further questions i thank you very much on the sides for the helpful arguments the case the submitted and i think we should take a five minute recess before our next case