since at least goldberg and roth it has been clearly established that when the government benefit cannot be revoked except for cause someone suffering that deprivation is entitled to at least minimal process and not surprising y courts have routinely awarded damages for such violations so let me tell you in a nutshell my thought about the theory that you have presented the supreme court has divided the kind of process that needs to accompany a deprivation in many many instances between pretty deprivation opportunities to say something and post deprivation process and in such cases as cleveland board of education against loudermilk which i recognize is a somewhat different context but it's all about due process the court has said that the pre term anation process can be really quite minimal can be oral it just has to be  noticed in an opportunity to be heard and that is especially true of the post deprivation process to give somebody the right to really flesh out explore what's going on so here the rebirth christian academy gets the letter from the state authorities and the letter doesn't say we are terminating your registration certificate effective immediately read the letter says we're doing it in three weeks or is it give give or take a period of time and you know here are the problems we have and so thinking of it kind of with lauer mill in mind i don't see what prevented the rebirth christian academy people from calling the state and saying whatever they wanted to say saying we don't think we violated the requirements in any or all of the eight or whatever the number respects alleged or you know we fix numbers one and two but we don't think there's any problem with the rest of them and they can say what they want to say that the state doesn't have to accept it then we get to the post depravation and i certainly agree with your reading of the statute that you don't see an administrative post depravation process so why is it our problem is a federal court thinking of the do cross says clause to tell the state of indiana they have to have an administrative procedure as opposed to a court procedure series court procedure post in your honor i think that obviously there are several questions in that there i disagree first of heard i think notice also incorporates telling you that you have an opportunity the herd search certainly the happy description of what the state thinks that you did wrong but nothing more than that they were told that you're going to be revote in three weeks period i don't think they were given a chance to contest that at any point so why wouldn't the natural response to getting a letter like that be to hire your lawyer and contact them or call them yourself or somehow get back to them and have a conversation that if you have they told you i think you do your honor and obviously if that if the premise on which your something after the fact and obviously this court and shepherds was very very clear that you can go to court is not an answer except for when you're faced with this pair of circumstances when there is a random  don't understand that at all actually your honor i think that due process i think that half a century worth of due process jurisprudence would be turned on its head if all we told people is you can make a phone call and then you can sue us in co k at some later date if if you want but why does an administrative procedure it's certainly sufficient if the state would like and in many many instances governmental bodies prefer an administrative procedure because it works it's more efficient to make you have expert decision makers a whole lot of reasons why you might want to do that so we can know great sufficient but i have been racking my brains to think of a case where the supreme court has said we forbid you to use courts in lieu of an administrative procedure i don't interpret the state well even accepting for purposes of argument the notion that you could have gone to the court and i think there's a dramatic question about that the state makes a big deal about the fact that the division of family resources which oversees child care is not subjected to our normal it ministr says so so there and there might not have even been an opportunity to see judicial review as opposed to this but whether we view it through the matthews factors or not and matthews i think there's there's obviously significant burden on someone that if you tell them you have to go to court and comply with whatever the procedures that might impose on you whether we view it through that or not as i say i instead of providing a process i've two persons who are deprived of what it acknowledges is a property interest could could could a state say to child care providers look you you have two choices to get license as a child care provider licensing is much easier to get but it provides no due  transparent in that way if license is only offer can only be revoked for cause i think you'd be entitled to process one that was revoked now you c an issue as to whether you or you knowingly voluntarily and intelligently agreed to be deprived of your constitutional right to due process and i think that might be aware that issue you have has to be funneled through but certainly one person state says you violated this statute and obviously we disagree that the statutes were violated you're going to get an opportunity to contest contest that and at that point we really get into the t ypes of numerous types of traditional due process protections that are not made available here they did have notice of what they were alleged to have done wrong clearly whether they had sufficient notice of has chosen me but so is the period when at least as a matter of law they couldn't operate their daycare center from the it was a june day wasn't it june twenty second yes  and fifteen so certainly we made twelve to certainly i agree that up point at at some point the failure to mitigate kicks in as a practical matter by the fact that they could not operate their facility during that period they the person we were required to create administrative appeals process where state statute didn't provide it or authorize it and they did have the notice the know that it's quite clear that you can't take property oh say they actually you know took the computers out of the place or you know removed all the furniture and they said no we're not going to tell you why or when you we're not going to promise to give you any process to give this back we surely would be obvious to somebody that the state has to accompany confiscatory measures like that with notice and an opportunity to be heard to contest property and you try to rely on the fact that the statute doesn't provide anything that would raise a different issue but why is it so different because i mean indiana can call these things whatever it wants to call them but they are is very much like judge rover's hypothetical they are alternative pieces of paper from the state that allow somebody to operate a childcare center and the fact that one of them is called a certificate of registration available for religious organizations and the other one happens to be called you know a license seems to me a matter of no federal constitutional significance well  i question whether a reasonable public official who's not an attorney would understand that an exemption and a license would both be a property interest but that's not just an exemption you have to get this piece of paper your certificate registration it's not like there's that that all the churches in indiana can just go ahead and run day care without any state oversight whatsoever there is in fact as this case illustrates meaningful oversight even over the the things that operate under certificates of registration which come from the state if i understand your point your honor but i think the constitutional import will get older sliding scale these ministries are exempt from licensure and in your right they do get the certificate but along with taking this route there are far less hoops for them to jump through there's there is somebody worries about the temperature of the hot water coming out of the tap somebody worries about how easily one can see the criminal records of the people who work there i mean  sounds i don't have any not our case anyway bed down perfectly reasonable to me i'm sure the state of indiana has paid as much attention as anybody else to the fact that just because you say you're a religious organization doesn't mean that there can't be the occasional bad apple you know involved in the thing and you write your honor and you know there is regulatory oversight but i guess it's not as extensive and but it exists and you all have known since the new property professor ri you've got a certificate and so here maybe the cases like person versus freeman that say that a license is property would establish that but then you get in mode beyond lawful the operators a daycare center without either that specific case that says a child care license cannot be revoked without due process does it do we need a case it says the state cannot revoke an exemption from and i think that it doesn't have to be directly on point and i want to clarify it does or doesn't it does not have to be directly on point and i think the service president as well as the supreme court president establishes that but there does have to be some closely analogous situation and you have to define the right really from the perspective of the defendant the individual defendant and the circumstances why do you have to do that and it seems to me  the right is defined by state law and then the question is you know is it something that any reasonable person would know about this is the right to operate a business and it isn't really i sorry i may have confused some things i'm not talking about the property rights i'm talking about the qualified immunity the clearly established constitutional right and how that it is that depends on how well established the right was that's why you agreed readily with me if they went and took furniture you know we've all known for multiple hundreds of years that if you take somebody's personal property you've got to do something about it you know you can't just take it even through the state and then leave then there's licenses there are other kinds of rights such as the right to receive welfare benefits and goldberg versus kelly or such as other kinds of licenses that the supreme court has now recognized for fifty years to the level of something that counts as property under the fourteenth and that amendments yes and you may have gone down a wrong path here is the three facts that i talk about the exemption versus license the amount of process and then the existence or the status of state law and not viewing those since you know one of them carries the day and i'm trying to get across i all three of those are circumstances that have to be taken into account so if you have a case even if you had a case that said an exemption from daycare licensure is property interest i still don't know that that would carry the day here because we then have the question of how much process is provided and also the fact you know that this law's been on the books for at least twenty years it's never heck this court put some emphasis on the fact that a state law authorized the what the court called patiently unconstitutional conduct in that case and it had never been challenge now as doesn't prohibit as far as i could see the responsible officials in the state agency from saying you know here's how we're going to do this we're going to send a letter maybe the letter should say you had the chance either to contest that these findings were accurate or to in some other way bring yourself into compliance they they do number two but they don't do number one they don't say you  know for all we know the immunization records in the parent notices in the criminal history checks were like literally sitting in the next room and the inspector never told anybody they wanted them and you know we don't know anything about the background facts here so the inability to say to the state you are proceeding on the basis of a mistaken understanding in fact something which matthews against eldridge really highlights is a reason for due process well in this thing and  and the private interest that's being deprived is a very significant one right but i also think in the matthews calculus the government interest is probably higher because of the less extensive regulation of an unlicensed ministry if there was no argument here your opponent says that if the state was exercising its store its authority on an emergency basis to shut down such a facility whether it's a church base whether it's a private facility even if they the state inspectors found someplace that they thought was in danger in the children state has the ability to shut that down on the spot as it should but they don't do that here they sent a letter they said here all these things were going to  weeks or so so you don't get the sense from this record that this was being done on any kind of emergency basis no but i guess i'm trying to emphasize that i think when the indiana legislature and acted this regime it was meant to be less formal more informal and how do we know the indiana legislature ever thought about this issue though they just didn't say a word about it well and this is why i think they're this is why i  think there's more than just mere silence here because chapter four which is a license centers chapter five which is a license home and chapter six which of the unlicensed ministries were active at the same time chapters and five for the license entities have several sections delineating the it ministry of process chapter six does not and you for an administrative does carry with that there are aspects and the reason for the exemption is something i'm still trying to get a hold of it may be an accommodation issue i think it started off as trying to serve low income  rural low income areas give them child care and the start off of like thirty ministries when it was first acted and now it's ballooned into like six hundred and there are i think there are good reasons for doing away with the exemption but whether that's something that would change from when they legislature version act yes yes it has but i will say that going back to the plan of improvement in the informal process how these things work usually is that you have an informal dialogue similar to to what chief judge said you would suggested earlier where they call up and they say notice and then a petition for judicial review i have a question and it's this you stated in the piece that the allegedly property interest was not in the license but in an exemption from license sure tell me why that matters i think it's just you know to a constitutional lawyer or to a lawyer it probably doesn't matter but to a public official they may think seems to me gets back to the religious aspect of this thing and part of their religious aspects is taking care of children yes yes i think that that's a big part of it and that would impinge on part of faced with assert this situation where the only cases in which you could get over the qualified immunity analysis are those cases where a state official acts in contravention of an established statute policy but we know from parrot that that isn't even a due process violation in the first place that's a random the unauthorized act so i really do think the state's argument unwittingly sounds the death knell of damages liability for procedural due process violations obviously that is not something the supreme court thought was true in carry versus pick this i don't think there's any support for that proposition we cited in our briefing to circuit court cases and six  unconstitutional that it did not matter that the legislature hadn't acted a statute saying there will be no process and those cases did so even when post depravation process was provided the state has obviously provided process to child care centers and child care homes assisted you since whenever that statute came into effect all we're asking for and all we asked for on summary judgment was that a similar process be provided for unlicensed ministries the state knows how to provide that going forward it will be based on and no one and no one is feeling that it's going forward it will be obviously we're just here on the damages issue but this is the state