good afternoon your honest thank you very much for the opportunity to be heard in this particular case as i've had an opportunity to reflect on it comes to mind that if this were a case of little jimmy stole little susie's pencil or something to that effect that perhaps these procedures as outlined at a b o r for the arizona state university would be appropriate a case where one young student female alleges that a neither male student was a classmate in her class has sexually assaulted her and there is a  only after listening to the girl give her statement and then asked the person to respond that in those circumstances a finding that that student the male is now guilty of sexual assault or rape which is a class two felony in the state carrying a term of seven to twenty one years if this type of proceeding is not only inappropriate decision whether we can even evaluate your procedural due process claims when olson says that you need you need to appeal to the court at least on a possible reading of all things one of the one of the things that we determined at the time was that the two individuals which were the key and a large substance of what the appellate in this case was arguing was that they should have been included in that initial statement state a state filing should we felt that under the circumstances that section one thousand nine hundred three had plain was more appropriate under the circumstances given the nature of the proceeding and given the nature of one of the problems that we've run into and we've even run but our olson decision says that in order to avoid a race judicata determination you need to at least try to use mechanisms for pressing your federal issues and i don't understand how you really done that here in this case as i said we elected to file in federal court whether this court but see that's not the issue i don't know the microphone over here can you hear me i don't know if we need to raise and i had trouble hearing george friedman and i know we have video going on so are they working properly ok i guess over the here it's not a matter of whether you elected or not it's a matter of whether you were required under our law to bring a case to appeal the final decision of the university which did not go in the favor of your client through a couple of avenues one administratively work to directly to the to the state of arizona are you saying you chose not to it is not a matter of choice it looks like because you didn't you may have waived that your ability to come to federal court but i can see jand directly on point it seems like or at least we're giving you an opportunity here to tell us why we don't follow the olson versus morse decision i can see that that is a possible problem i'm not saying that this case is not fraught with some legal problems might be a fatal problem possibly possibly have any argument that also and doesn't control here well i what i can tell you is how i have evaluated the case at the time i was quite sick and i didn't actually do most of this myself that's true i was under six weeks recovering and i didn't want to even go into that today but that's the reality i was out for eight weeks i should not have been at that original hearing anyway i had four incisions which were leaking i'd only had my surgery two days before and they still deny their motion to continue so under pain medication and without these things healing this happens so in that respect how this case proceeded after that i was out of the picture for a long time six weeks recovering clothing week in the hospital and  that's outside the record i didn't even if there's nowhere in the record that indicates that and that we're you could have maybe gone to university when they got the final decision instead and i have another opportunity i'd like to f client and i'm struggling a little bit figure out how we get around that and i understand i do understand your concerns and i guess my argument would be more in lines w your equitable argument well in keeping with the equitable stoppel arguments that are associated and then corporate it in our first brief is well it's our applied reply brief  i think under the circumstances the final decision theoretically would not have been at the point that we had the hearing the final decision would have been at the time that mr mater  requested that mr quality in this case appear to meet with him where i was supposed to appear as well to get a final determination on the matter in that instance when i contacted him to make the meeting he declined to have the meeting after that and then so a spontaneous created his own decision a final decision  we know that the court would not have required them to try again or to give you more process i can't say i mean i'm i'm not going to make up something and say that i one of the reasons i think is because there are a lot of things that were simply kept off the record and what i mean by that is that the with regard to the lack of due process with respect to the administrative hearing itself for example in the briefs that you have you have been given basically my response at the conclusion of the so called hearing when i want judge levy is asking why that is even before us why you didn't object to taking judicial notice of the hearing before it seems i don't see any objection to the granting of judicial notice of some of these documents that would not ordinarily be in the record in a m so if i'm understanding the question correctly why was all this extremely a seven and so added why are we why are we asked to review this case on this record when it started out as a motion to claim they can get in the door just as i i'm sorry go ahead what what do you think we should be reviewing i think you should be reviewing the motion to dismiss i think it should be justice and i know i'm going over my time but i'll briefly answer your question the core of the question is related to i think the claim really is an inquiry as to whether there is a claim upon which anyone can reasonably apprehend that there is some substance of the complaint correct right so in this instance when we filed our complaint i think it's replete with evidence that yes this does make a viable complaint if we got carried away on both sides in terms of submitting exhibits and i admit that the attorney general's exhibit list is quite thick leaving that all aside and just on the face of the pleadings now we have made a federal constitutional challenge to the procedural system that was applied in this case at the u level and i think that that whole process is in my opinion is unconstitutional and does not provide any due process whatsoever for any student but i know i've gone over my time thank you and good afternoon members of the court my name is michael goodwin i represent the defendants in the action the arizona border regions michael major and gregory cassell i'd like to is whether the university's administrative decision is entitle to preclude to affect the district court concluded that it was the district court said that the well on that basis the district court dismissed the  know because he had the opportunity to raise all of those procedural arguments in the state court in the state process in the process that one of his arguments are and one of the requirements and one of his arguments is an adequate opportunity to litigate he's alleging i think in his complaint that he was denied an opportunity to have a hearing seems like we have to take that come to him at his word because that he unable to put on the witness that he wanted do we not just look at that and say well it was adequate process that they had a hearing and they walked out of it and that's in the complaint the first of all you look at the procedures that were avail there were very extensive the there's extensive pre hearing process there's extensive there's an extensive hearing in itself and then there's post hearing process and in this case there was a hearing it got underway it wasn't going the way that  mr quaid and his attorney liked when they decided to leave the hearing in it and the result was a final administrative decision under arizona law there are lots of cases that say this under arizona law to gilbert vs the board of medical examiner so that's that principle is well established well now the question is not whether we give some reclusive effect to a judgment of is as far as you got yes there was no court judgment and our case says that they the allston case that  our ability here or we should give preclude civa fact to the administrative decision if it was fair and you had an opportunity to present your case right correct so we have to look at the administrative procedure and decide whether or not that was fair under the literal literal words of the of the night circuit opinion would you agree with that i do agree you have to have to make a determination of fairness and the allegations in this complaint are that this plaintiff in this case was told your lawyer can be heard or you can be heard but both of you can't be heard now you have to defend that is fair you know what i have to defend is that he had the opportunity to challenge that not only by making argument to the hearing board on rehearing and to the arizona superior court on judicial review if he still was not satisfied with the result you think you think we should hold that he had to go through the charade of being shut out and get somebody else to correct the administrative body and say yeah you haven't read your lawyer can both be heard not one or the other but that's what this compl does it not well i respectfully wouldn't call that a charade i would say that would be if that's an error then it's an error that could be corrected by superior court superior court it regularly were reviews that ministr decisions of state agencies for constitutional errors and if there's a constitutional error this appear in court is there to to correct that we've cited cases in our brief you know i can one that comes to mind is web versus the arab or arizona board of medical examiners where they reversed an agency decision because of a perceived due process violation in the administrative and the administrative process you understand right and an adequate opportunity to present and we're faced with an allegation that we have to take is true that this plane this plane was told one of you can be heard but not both of that is you or your lawyer but not both right right that's what it alleges now we have to say that administr procedure has reclusive the fact because it was fake what i'm saying is that federal courts when they're deciding whether to give precludes the fact they review the administrative process that was available at particular decisions not a single evidentiary ruling but they look at the process as a whole and that process includes the ability of peeling your argument but it includes the ability to it several layers of review that particular decision and i don't even believe that was the decision that was upsetting at the time that the decision that prompted the walk out of the hearing had to do with a certain witness was excluded from we get to prove or present our evidence of issue for collusion well respectfully your honor i disagree a little bit on that point the twelve b six can be used for failure to state a claim it can also be used to raise an affirmative defense and and the and the and our motion was based on twelve b six and the case law from this court says that matters that the other matters that are not attached to the complaint can nevertheless be considered on a motion to dismiss if there are matters in this case matters that can be that the court can take judicial notice of and so in this case the really every time race due to cot is raised it's necessary to look at what happened in some other proceeding whether it's the decision of another federal court the decision of the state court in this case a decision of administrative body that part of the record that's not presenting facts those are matters that are parked there are matters of public record the courts and regularly do take judicial notice of them they were submitted in connection with their motion no objection was made the district judge judge tucci took judicial notice so they're part of the record they're appropriate for consideration on our motion they did not convert the motion to a summary judgment motion anything else ok thank you i would ask that you affirm the dismiss square on the head i think the real problem that i see here is based on the fact that also requires that if there be an administrative decision one made by a state body that th administrative decision must pass muster to some degree to equate a state court judgment now in the situation where the process itself does not permit even remotely permit and in the exhibit you will find the student body language i challenge you if you look at it to see where it is not completely inconsistent in terms of in different sections explaining that there are different things that a person may be entitled to including cross examining witnesses or presenting what misses but also and says that if you have constitutional objections to the ministry of bodies procedures you can appeal them through the process for appealing administrative decision you didn't do that here so how do you have any evidence that the state court would not would have disagreed with you i mean maybe the state court would have agreed with you and made the university change procedures they may have it's possible i can see that but what i'm submitting is again given the nature of the case remember this individual is now been found guilty of sexual assault and the determination was that he would eventually have to carry this on his residency of sexual assault i mean you're you're you're not talking about criminal proceedings you're talking about what that he violated the code of conduct for students by sexual i saw assault or rape and this was investigated by the police as your honor just now and they came to a completely opposite determination or a different definition this was the campuses definition of a code of conduct not a criminal law about rape right well again we get to that question of what in fact is a fair constitutional proceeding and whether someone i mean let's face it you know it's true they can't put him in prison for seven to twenty one years but anyone who is a student out there carrying a expelled which was one of the considerations he was actually well he was suspended and removed from school for sexual assault not for consumption of alcohol or pot which they both for a beer and gauged of days is that correct no they had him physically removed from the campus  what was the terminator i thought he was suspended no major major erased all those records and ordered him off campus and not to come back on campus again but i just want to make sure you don't equate verdict guilty of some sexual assault with same thing as an administrative receipt i'm not equating them but what i'm saying is in the real world if somebody is looking for a job or trying to go to a school and you have on your record you were suspended from another school for sexual assault there's again the worse than that it's very serious and that's why you know i just have a pause why he would not have were his lawyer would not have exhausted every administrative remedy possible to avoid that and that's where we are from at least from my perspective as justice thank you both for your or arguments today may we be excused you may be excused thank you and the next case