is the client representative also present today the primary issue on appeal is standing and whether you can have a procedural due process claim in a factual circumstance like this where available state court procedures were never employed and never taken by the plaintiffs who are complaining about the absence of those things the record before the court is rather extensive this is our third trip to the court of appeals our first oral argument but the case was stayed once for thirty days and remanded for more proceedings it was stayed pending appeal on the second appeal and remanded for factual findings and standing and now here we are the third time around despite the remained in the instructions from the six circuits of make those findings and determine jurisdiction the district court judge in the parker erred by simply assuming standing and saying that this is a speaking motion by the secretary of state and therefore we're going to the chord under six circuit precedent which we claim is in a political it's going to assume standing in the reason challenging standing is to both power and harris yes and the court actually in terms of fowler relegated her to a footnote and said the court has already independently raised questions about her standing because she was already suspended since two thousand and twelve in the state of georgia not eligible for a driver's license in michigan and therefore not subject to the remedial purposes of this injunction that could i ask a question of her in their briefs they allege that the harm that there's an intermediate harm in the intermediate and i'm describing it this way they do are probably a much better job than me but the intermediate harm is the loss of money or the ability not so we all agree money is property right that's well established and so the loss of money is the harm and that they didn't get notice proper notice of a procedure by which they could reduce the fine why why don't they have standing to claim that we all agree they got fines so it seems to me they're going to lose that money and the question then becomes did they get notice and an opportunity to be heard and maybe your argument opportunity be heard better because you offer a hearing in their briefs they point out the lack of notice so why don't they have standing to make that claim sure well they don't have stand and they don't have standing because in the case of paris she was given an extension on paying those fines she was given a payment plan but there's there's a dispute as to whether she was given notice of the opportunity to reduce the fine right you can see that michigan has a process at least in your brief you do by which you can reduce your file for and i went and tried to verify and verified what they say give the page thirteen of their brief i'll just read it he says you can emit responsibility for the violation and pay the amount and admit responsibility for the violation with an explanation and pay the amount what it doesn't say and this is michigan's notice and it's on your i think it's on your website but what it doesn't say is you can admit responsibility for the violation and seek to pay a reduced amount if you are financially a name so how are they supposed to know that they can do that well i think the notice you're referring to is after there's been a finding a failure to appear on a show cause and so that's relevant because what the way the statute is read i thought it was going in iraq i thought it was failure to comply baristas a failure to appear i thought the failure to appear results in the ultimate loss of the license or maybe i'm just mixing up their backs and the failure to comply is what happened as the intermediate step and you can explain it or well in michigan and i think in both the cases of fowler and harris they were given show cause notices for failure to appear and the way the statute operates has section one actually makes it a misdemeanor offense to ignore the court order and so both these plaintiffs are in the failure to appear category that's our position and that presents a different sort of analysis because sorry just to understand that i thought you get to the failure to appear care fail to comply because it seems to me if i get a traffic violation i can simply pay it and don't ever have to appear on screen so you have to fail to comply to get to the failure to appear that's correct and i think if you take their declarations as true and i think if you take what judge parker said on the record well what is the point of me appearing if there isn't some sort of specific advice on the ticket or in some other written communication about well you can claim inability to pay or you can go on a payment plan the case law doesn't require that kind of a specific notice the issue is the availability of process in state well  supreme court in the memphis polite case did say that you must notify the consumer the bill ability both to contest the charge and the ability to reduce the charge right from the notice has to be detailed enough that the consumer or in this case the violator knows that they have this opportunity and if i don't know that i have the opportunity then how my getting sufficient notice at least under different different process then you talk about the consequences or what the judge to parse question talk about the ability to pursue a particular benefit a reduced payment that's the notice we're talking about right and in ferndale district court what the court records indicate is that counsel is provided for these sorts of things coupon book payment plans are provided we have a sworn affidavit from the court administrator's of the best process in the world i'm not even talking about that i'm just talking about notice right because due process involves notice and an opportunity to be heard according to the court and you're talking about opportunity to be heard and we're talking about notice i think that's where maybe our question my questions are greater which is i  want to talk about the notice right there and what i'm saying is they say and you can correct them if they're wrong but i tried to verify and it looks to me to be right that page thirteen of their brief that these are the ways the consumer or the violator is told well they're referring to a website there i think the right because the ticket says you nothing right the ticket says go to the well the taken says take this seriously come to court and i think the presumption ought to be you need to respond to a citation it's not going to have every single bill of particular in terms of what you can do at a hearing and furthermore that raises a redress ability issue the party here is the secretary of state they administer drivers licenses they don't create the citations the local authorities use they don't create or adopt the court forms that the local court jurisdictions use in michigan and they don't control whether someone is suspended or not it entirely depends on state court orders that they do but they do react to the the process in the state court to deprive the individual of that privilege to drive if in fact they get something from the court saying this person either didn't didn't satisfy their obligations their right it's a ministerial the secretary shall there's no discretion here there's no determination by the secretary of state and these questions really are traditional question we have to be concerned about the notice and the process are the court level well i think it's interesting that in the course of this litigation it's bend made plain to the plaintiffs if you show up if you make contact with the court if you even put one dollar toward your fines or your fees that order of suspension will be lifted by the court and none of that has happened since this case has been pending none of that happened along the way fo already suspended in georgia and has problems harris has gotten more violations in other jurisdictions and so it seems to me that having a specific advice of rights is really not the touchstone of whether a statewide injunction like this really should have been issued the issue is have they as an element of their procedural due process claim shown the absence of or the in adequacy constitutionally of the state court procedures and they haven't not on this record by him would you object to the requirement that you add one line to this which says you can admit responsibility and come to court and seek a reduced amount if you're financially unable to pay you mean adding a line of this website that they're quoting here i mean if this court wants stored or that it seems to me that again the secretary of state doesn't control that particular website though the state court administrative office i believe so you're saying they sued good morning your honor and may it please the court my name is philip healthy and along with my co counsel rebecca ramaswamy i represent the plaintiffs adrian fowler and kitty harris the plumber injunction below should be affirmed for three reasons first both plaintiffs have standing and contrary to the secretary's uncited assertions in her brief no notice was ever given of a meaningful opportunity heard second no abstention doctrine applies and third on the merits michigan's process fundamentally lacks the required elements of procedural due process of notice any meaningful opportunity be heard i want to turn right to judge the pars questions about notice we think that's essential in this case eight times in the state's brief the secretary claims that the plaintiffs were notified that they could appear in court to avoid licenses mention seven of those assertions are completely unsighted and the eighth cites to a declaration which provides no evidence of any notice or you claiming your injury is the loss of the license or your injury is the loss of money  more the loss of money just the par we agree with the district court below and the middle as you can see which recently encountered a very similar issue which held the economic injury at least that by itself creates the injury here in this case there f c to pay suspensions that require b and statement fees but i do want to correct a judge the parthian misunderstanding that happened during a pounds argument if you look at record thirty three dash five that's a record of a court decision harris thirty three dust five makes very clear that there actually was no failure to appear ms harris got a citation for impeding traffic which is the lowest level possible offense in michigan there are not even points on your record license suspension is not a possible penalty for impeding traffic it's a very low violation she never got a court date and record thirty three dutch fire which is a court document confirms this she never missed a court date or those all factual questions that shit why  district court hold a hearing so you could put these facts into evidence the dish recorded hold a hearing on i looked at the hearings it was just argument what i've been hearing i mean taking evidence why not take that evidence so you can build a record for a absolutely i can't second guess the district court's decision on whether just be argument or evidence but she did receive the evidence submitted by the parties and heard argument on the evidence which she didn't make the actual findings right i respectfully disagree  on the original injunction order not the amended injunction but the original injunction which is record twenty one pages to sixty two through to sixty five she made numerous factual findings of the citation doesn't provide notice that there's never information about opportunity or reduced fees so on and so no i agree with that i'm sorry i'm talking about what you were just asserting about this fit the thirty three dash five in the failure to appear citations she never made any factual findings you're now asserting facts about what happened and i'm saying she never made those findings testimony about appearing in the courthouse but more to the point on pages two sixty two through two sixty five she knows the difference between failure to appear and figure to pay and all i'm saying about thirty three dash five it's a state it's attached to the state brief and it it it illustrates that someone can have a license suspended without ever missing a court date without ever having court date without ever having a failure to appear in fact if the court looks closely at the driving records of both plaintiffs you'll see a number of failures to comply and there is to pay and you'll see a number of failures to appear all of the failures to appear attach the misdemeanor offenses like driving without a license all of the fares to pay tax to the infractions like impeding traffic or  disobeying a stop sign so you can get a suspended license in michigan simply for failing to pay if you don't have any misdemeanor no obligation to appear at the fair pay comes into play can i ask you a question have you read our schumaker case which is a two thousand and fifteen case and what this is the guy who failed the cut is a lawyer and the city's issuing violation ok what we said there and it's published is if a plaintiff can find information through due diligence a simple i'm quoting a simple investigation of they referred to ordinances or called a city hall would have answered shoemakers questions but he made no such effort and therefore there's no due process violation now i'm going to analogize with the state saying here the secretary's hey you done your due diligence had you come to court you would have known that you could have sought a reduced factual dispute and that's where we think the district court probably assume standing i remember that are planted in their affidavit i'm sorry i polished eyes just to be clear i'm not talking about standing i don't disagree with you on standing i'm talking about america regarding the merits i think the first point would be the district court has enjoined in forcemeat of a statute facially actually prohibits exactly what the state is alleging happens the low the statute requires a mandatory suspension no exceptions no delays no extensions no process no hearing under the words of the statute after twenty eight plus fourteen so forty two days suspension is mandatory now the state is effectively saying they're saying that's for failure to appear not failure to the state is oh you guys are like yeah the state is arguing this referred to the words of the statute are very clear there's effectively two paths you can either fail to appear or fail to pay forty two days pass and then if you don't appear or don't pay in other words what the original violation your statue will be suspended and my point is under shoemaker if you don't appear and take it damage or the process available to you then you can assert a violation or the failure to appear path but for the third to  pay path if someone doesn't pay if someone doesn't pander the statute the statute does not give any right to a hearing the statute does not say there's an option to be heard on any issue and for an infraction there's no obligation to appear in court  now the state is saying that despite what the statute they always set a hearing no your honor if you look at when there's an example citation i'd let you get your citation then it says appear on such and such date or pay basically if you look at record thirty three dash four which is an example of a citation in michigan and it's consistent with the district court found on pages two sixty two and two sixty five of their of its opinion record thirty three days for me it's very clear your options are admit and painful or infraction so it is a big complicated but effectively there was no court date for ms harris as an example and other drivers who just have an infraction not the misdemeanor offenses if michigan had you on their ticket said go to this website find out your rights and it listed their rights would that be sufficient it would it could be sufficient notice but i want to turn back to the statutory point what the what the judge is enjoying here is a statute that does not give any process does not give any opportunity for hearing and actually requires the secretary to suspend licenses automatically after the second fourteen day window passes that's a temporary suspension right and the supreme court dixon said you can do that i would separate from a temporary suspension it's really an indefinite suspension which i think is different than the dixon case dixon was potentially temporary suspension under michigan law that that suspension for failure to pay only not the fair it appears as mentioned is indefinite and under if i have this that come pay and then get out of failure to appear suspension under a fire would be to appear before the for the failure to pay suspensions that both of our clients have they can't cure at this point merely by appearing there not failure to appear suspension so they would have to pay that amount the difference  the website is in the record here that says the same thing is the admitted pay or deny the there is never any information and the statute itself if our clients were to read the statute they would say wow if i can't pay the full amount my license will be automatically suspended after those twenty eight and fourteen days pass it doesn't say anything about a hearing there is no information anywhere that someone can go to a hearing and raise their inability to pay as reported both in the memphis light decision and under michigan state law and as the secretary agrees in her brief that the ability to pay is an essential part of due process so we're dealing with a statue all the public information that gives no information for  point this stuff you on its face doesn't allow those opportunities yeah that to me seems a better argument than the factual and because there were no it's hard for me with no factual hearings to go in there for us to divine facts i agree your honor and that is why were fashioned its injunction in the way it did it said you can't enforce this statute which on its face does not allow for any opportunity unless those opportunities are happening in some ways it seems like the state actually agrees with us and with the injunction that the state as long as it's willing to provide that notice either through the center of state's office or confirms that courts are doing it and as long as those actual court hearings are happening the state would be in full compliance with the injunction and there's a factual question over whether it already is in compliance but the court held that it wasn't but if indeed just the part of the facts are as as you think may be happening then the injunction should be no problem to the state he could say hey look we're already holding these hearings that i think judge parker doubts that and  obviously we as plaintiffs doubt whether they're actually happening but if they are that would bring them into compliance but if they gave notice that you could see that that would be sufficient right i think notice plus the option to be heard which is disputed but yes if they had those actual hearings court appropriately received the evidence she didn't address all of the affidavits and competing claims about what hearings were happening she probably view this as a facial challenge she read the statute she looked at the citation she looked hearing is the only evidence the searchers provided which is if you citations if you notices the website or that i've seen on my own don't seem to provide this notice i don't see any evidence of these hearings so that in secretary we're going to  stage because the documentary evidence before the court the citations the website the notices themselves make no indication of any hearing where someone can raise their opportunity to to be heard so given the lack of about their claim that they're there rob i think that terms that depends on the injunction that's being issued and the injunctions being issued a perp implies the secretary we could have sued the courts and then maybe a separate proceeding as to what courts do we're saying the secretary doesn't provide the hearings the courts right and servers not being ordered to provide hearings the secretary under the statute is the one who suspends the licenses so she's the ex parte young a state official that enforces the statute she actually issues the suspension who gives the notice because you're also asking for notice neither as a factual matter neither gives notice what the injunction would say is i the secretary of state which just to clarify in michigan it is basically the d m v either th courts to do it if they're doing it that's fine you can see if they're holding hearings about ability to pay you don't have to do it yourself they just have to happen and so they just record as saying don't suspend don't press that red button don't do those they say it's a lot of made but don't you know don't press enter on the keyboard until it either you have held the hearings with no this or someone else has and you've confirmed that they've happened i see my time is up for all of the reasons all of these reasons we respect their request that the ruling below be affirm i'd like to pick up on what judge the par in judge down grants king about there were zero factual findings by judge parker at the beginning of the declarations were simply assumed to be true the legal arguments that were presented in opposition to the injunction most of which were accepted by judge parker the only sliver of a claim that she'd allowed to advance was procedural due process based on those first declarations and the court's internet search for what one citation form looks like from one jurisdiction upon remain and once we provided copious court records and declarations from court officials and actual facts about what happened with both fowler and harris judge parker resolutely refused to revisit her first injunction she said well that's not the purpose of the i'm not going to do that we have a second remained where there are specific instructions from this court to make factual findings about jurisdiction and what is judge parker do she sidesteps the question and assumes it based on cases that simply don't apply here none  about speaking motions involve a preliminary injunction that had already been entered on a statewide basis and so by refusing to make these factual findings it's really this court's responsibility to look at what happened to both harris and follow there really isn't a live issue on appeal that the district court has said in a footnote i've already raised concerns about her standing they only need one plaintiff to proceed so let's look at harris meanwhile a motion filed back in july of twenty seven twenty eight hundred by on behalf of the secretary a motion to dismiss has never been ruled on that have been set for hearing fowler ought to have already been dismissed harris also questions the erotically about what other process what other notice can be provided really with or in light of the very fact harris was given an extension and a payment plan and she never made a single payment she never provided even a dollar to keep the suspensions from happening  there's also no facial problem with the statute section five of the statute clearly says that the secretary of state that a removal or suspension imposed under this statute shall not take effect until both of the following  ur the second one is a reinstatement fee of it's really not at issue in this particular appeal but subsection a subsection five a the statute the secretary of state must be notified by each court in which the person fail to answer a citation or notice the underlying traffic offense is one question but the misdemeanor offense of failure to appear is really what led to this is a bunch of their licenses by not responding to these orders to show cause and by not coming to court and trying to work out an exception for themselves to the general rule they have placed themselves outside of any kind of standing or any kind of merits determination here that they have a procedural due process claim the process is there it's available their decision not to engage it cannot create standing for them in federal court to complain about what didn't happen in state court when they never appeared and never followed up on a payment plan were never responded to in order to show cause that is the problem here the argument by the plaintiff app elisir really turns laws of general afflict ability on their head you do not assume the needle and there are a geisha in the haystack you assume everyone is equally capable and responsible under the law and if they want an exemption if they want special accommodation you have to raise your hand in timely seek it people be jackson is a he's waiting this i mean the problem right is the question of whether i agree with everything he said  thirty one of our brief the city of west covina versus perkins case that says individualized notice of state law remedies that are already established by published generally available state statutes and case law is not required i think it's similar to the lawn  case that you brought up judge the par the ordinances the statutes the availability of court policies the availability of these coupon books anyone who does reasonable due diligence can find these things out and if you want in  exception under michigan you have to raise your height and sign or they come to court the answer there citation and if you can't mail a check and get rid of it then you have to come to court and work it out and again it's a system that's populated by humans and that's operated by humans this court should allow some level of margin of error to happen in terms of people perhaps getting wrong information over the phone whatever the case may be the important thing for the constitutional question is are there available procedures that a person exercising reasonable left it could find and for the case of both harrison fowler the answer is absolutely yes and in the case of paris she did she got an extension and she got a payment plan and then she never followed up and only then been even though you say she got an extension she got the payment plan this knows showing that she got information about the ability to pursue the payment of a reduced amount if there and you said that people should raise their hand come the court and you know but that many of the people that you're talking about are in the least you know they're in a precarious position to begin with and they're the ones leif like that they have the abilities to take up to come to court raise their hand with that is in michigan there's millions a licensed drivers there's thousands of these suspensions that happen every day and really the exception to the rule should not swallow the generally applicable rule in under case law like of you know if there is generally a poli plan well i think you've got to come to court and talk to the judge or talk to a member of the court staff and in this case even though they a declaration saying they got misinformation over the phone there's case law that says misinformation  doesn't centrally a stop the government from enforcing something that's on the books it's on the books it's in the statute it's in the court policy and ferndale district court in terms of  what you need to do to claim indigency which by the way is a traditional question not a regulatory question this injunction if it stands puts a kind of separation of powers problem in terms of the secretary of state second guessing what's already happened in the state courts here so that's another reason that this injunction really ought to not go forward and it ought to be sent to say thank you for your attention thank you counsel the case will be submitted for