one case this morning and appearing with this the a video conference is judge garth from connecticut i think sitting right now or saying that we are from len from good think it that what judge jones he went through the butts factors to some extent but then decided he didn't have enough information before him he wanted to do some discovery is that correct that is essentially correct your honor based upon a couple of allegations that keystone had made and why do you think it's not necessary to do that that we should decide now let's start from the general proposition that quasar judicial immunity is the right of public officials not to be sued in their capacity individual capacities based upon decisions that they have made and not just the opportunity to prevail ultimately in those lawsuits and this court in bass versus the tardy and others contested as make no allegation that the board did not act in its broad capacity which and so the but analysis is in fact the analysis that that both butts and this court four years ago in doubtful said is the analysis one goes through and that is a legal analysis and if we automatically judge him bro judge jones below found issue with only one of those factors and if you would permit me just in forty five seconds to tick through the others i think we can put them away and then address the problem that he had the first one can the board perform without intimidation or harassment we would say this is an example of no the first licensing decision the board has made it has been sued by a very wealthy disk disappointed applicant much is what happened  are there institutional safeguards that was found to be satisfied by the court below prior notice right to counsel sworn testimony transcript written opinions third test or insulation  political influence these members are appointed to by the general assembly in the governor terms they cannot be removed except for cause their terms are two years or three years in the dots ok if the term appoint in terms of that board were three years what about the importance of precedent the importance of precedent keystone actually criticizes this court's analysis in the dots will case about that factor because this is similar to the board in the  a way that it is applying what it very clear statutory criteria but for the wording but at the same time isn't it fundamentally different i mean there is a if here is to me that there is a major difference between a supervisor in a township applying not on an innocent pallet he's planning but also the ordinance in that township to a particular decision as to whether to issue a permit or not issue a permit and a board member on the pencil control board using its discretionary authority under the statute but using his discretionary authority to determine which of the five applicants who get the class to licenses in philadelphia your honor i don't i don't believe there is fundamentally a difference and let me in that the statute is very clear  n identifying criteria appropriate economic criteria that need to be considered the board in in a group and evaluating these licensees issue date three hundred  paragraph specific factual finding one hundred thirteen page opinion adjudication setting out all the facts after the other elements will get to so it applied the legal criteria that it  given it there it is its first licensing decision so there is no precedent to follow but it though it meant that factor under bus by applying the criteria was given by a law applied that criteria it still had a choice on a broad range of issues as to which of the two applicants out of five should get those two license seems to me that i phrased my question to you to show it seems to me if there is just such a fundamental distinction between us a board of supervisors in zoning and the members of the gaming control board in pennsylvania acting on it appears there's a significant issue with regard to the significant very significant amount of the scrushy and that's given to the board members to make the decisions to who to whom to give license or alternately in any city alternately in any case where public officials are not sitting as a judge we put aside that absolute immunity to us you know that that's what this is all about is this process characteristic of that edition of process satisfied and judge fisher is asking questions about is there too much discretion involved here i gather is what you're thinking but whether it's if you look at the other any licensing board municipal licensing board has the discretion alternately to grant or not grant a license but plying the factors in their statute and that's exactly what was done here but there were this decision any less a big deal if you look at all of the bets factors this is a decision applying statutory principles to a set of facts carefully managed yes there were more than one applicant but respectfully i don't think that makes the ultimate distinction and if we then move to the next factor which in but so this court said was the most important one the availability of appellate review that's come up the adversarial nature of the process yes that's clearly where the district court had a couple of had an issue and it mistakenly adopt i would say got caught up into allegations that keystone made that were not accurate let me just put those aside the court said that keystone had alleged did not have their efficient right to counter testimony of others that is in fact guaranteed by the statute and if you look at pages eleven to twelve were men brief all of the elements and in fact will be used that in the actual hearing is set forth and in fact they have the right to file supplemental briefs and provide supplemental argument that is simply an error and it's guaranteed by statute the court also said that there's been allegations of ex parte which affected the adversarial nature that is also ran as a matter of fact the this it's not permitted by the statute except for clarification of facts that would then be introduced into evidence the same procedure existed in the butts case that the supreme court found with the supreme court found that the decision makers for the department of agriculture were separate from the people checking the facts of the people who were filing the application their resume ex parte conversations with applicants and in fact that that was an error where the court had trouble with the absence of cross examination yes in this particular proceeding there is not ad there is no cross examination by opposing applicants but let's make a couple of things clear in interpretation by opposing counsel and quote cross examination was at the scene a quite no and in fact two of those three were present here and utilized by keystone no cases ever found that to be the key the essential element to say that a single factor from the bunch factors i'm not sure is there let's go into discovery destroys the concept of cause i do little immunity which is to be protected from being sued when you're acting in that public official and in the absence of the kind of psychological impact that the specter of personal individual live building potentially staggering amounts could have and we believe it's important that the game the word members in the context of licensing decisions would absolutely not urine and we agree wholeheartedly we agree wholeheartedly that the question requires i could issue immunity should be decided not based on allegations but based on the statutory framework in which the licensing the reg board has regulations which set forth the procedures in which they make licensing decisions know what are they contacts sworn witnesses creating a record  documentary record that becomes part of the record in the docket but when i ask you something if they judge in fact did have an x party contact board found that the trump pose and have another number of other problems that made it less worthy in this competitive process my central point is that at every step of the way h s p gaming consider this both a judicial process and an at the serial process there's no right direct right of cross examination but prior to final hearings in this matter every evidence in fact in this case trump did submit comparative evidence which in essence said sugar house your traffic proposal is going to create a the logjam from wilmington to new york city we responded with her own reports he's coming up either is there are there any students or students from the wider university school of law here welcome pleasure having good morning ed david overstreet on behalf of keystone redevelopment partners l l sake now start where the court was and questioning counsel for the appellants let me ask you the just for the district court was  there made it back in the dugout the district court felt that there needed to be some actual the bell on the issue of immunity what factual development is there really need to be isn't this development when you're supposed to decide such things that the outset of a case that and that is correct and as this court noted and sell arguably if there were facts in dispute this court may not have jurisdiction under the collateral order doctrine to entertain this appeal at this time but i think this court addressed that very point in the quickie decision where it discussed absolute immunity in the context of a motion to dismiss and said at that stage you take the facts as alleged in the complaint and you accept the facts as alleged and then if you proceed to summary judgment as this court is observed in that context you view the facts most favorable to the nonmoving party so this with respect to the facts that are before this court i would submit that the rule is that the fa pled are those that accept and what the district court was saying here is if we accept those facts as we must there is no application of judicial munity at this stage however if we go and develop a record and come back at summary judgment or perhaps a trial then that then i may rule otherwise but at this point i am at forced to accept the facts as played by keystone which is in fact the correct standard at this stage of the proceeding because we are up on a motion to dismiss why don't you run through the votes factors and let me focus on the two that seem to be of interest to the court in particular the adversarial nature of the process and we compare this both with the traditional understanding of the judicial process and in particular with the  one of the things that people seem to be focusing on is the ability to cross examination of cross examined but in neither but's nor in docile was there the ability to cross examine was there no actually there was but what's involved in administrative law judge conducting a jay hearing under the guiding principles there and in fact it was it was a judicial like proceeding and this is more likely with the supreme court ruled that they have some surprises and they require cross examination no not necessary it's  it's one component of making the determination of whether to extend the extraordinary protect conditional munity asking the question of whether and why i qualified immunity is not enough in this particular case and i think what's important here is the cross examination factor has to be understood in light of the entire process or in a particular what the board did hear something unlike any court and that is that they went out and conducted their own investigation they hired experts they hired investigators it says in their opinion they the board contacted law in the perspective is that yes they looked at a lot of information but they did one hundred thirteen pages certainly they did and if we look at licensing decisions by the pennsylvania department of environmental protection they can be hundreds of pages long as well and no one has ever really need to look at the nature of the action here you really need to examine all the components of the action and act what's this judge what's this judge like does it have the characteristics of the judicial proceeding and unlike and outsell were missing here there really wasn't adversarial process you had multiple separate hearings conducted on different days the parties went there together you know you they heard from one party and then and then on another day in another proceeding they heard from another party the only people don't entitle to question were board members what practically all the cases say is where you have a statutory bore from somebody participating in a particular act give me a corollary case where anybody said this fact or commerce clause violation i'll se you the case it's nearly on point although we're talking here oh oh we're talking about milk and not about gaming and that's the h p hood son case from one nine hundred forty nine with the supreme court dealt with a nearly identical fact pattern where someone had applied for a license to open up a dairy in new york and new york said no i'm going to look at my factors and one of them as here was that ultimate discretion with respect to what's in the best interest of new york and that and applying that factor the licensing board said no we're going to protect our our new york businesses for not allowing oh yeah absolutely no we don't we don't get there right we don't balance here because this one is discriminatory both on its face and its practical fact and then its purpose you say because new york no case i say because of the action itself location location was different than the locations that were chosen for the two winning applicants and you know they threw in to justify it looks to me they threw in to justify their decision on location the fact that keystone also  the entirety of the board's analysis of this particular question and what the board said as it was concerned about luring of pennsylvania gaming participants to the land of city one of the wall off the philadelphia markets the people wouldn't be enticed to travel to lenox city and that's a classic interference with interstate commerce it's discriminatory not space and i'm sorry but their action in the same time at least one of the successful applicants had a gaming interest in kinetic certainly and so they so they in that case they weren't concerned because they didn't have to worry about people driving up to connecticut to game they were worried about the forty five minute drive and they let a city park wait so your bottom line is you don't think you get the bike  to me what your question might be perhaps also is an inquiry into whether there's you know when there's multiple factors considered by a licensing board you know what do you do with the fact that this was one of many considerations let's assume argument of that this was an unconstitutional consideration but they had all these against applicants for the purposes of protecting in state businesses to the disadvantage of interstate commerce it the only way you can get it removed from that is to try to do still this down into effect specific and crane this court is recognize you don't when performing th clearly established analysis you don't have to have precise factual correspondence that would be impossible and so we're not suggesting there's another you look at the actual context you know generally speaking i think it is right on point that the view as a very significant factor that you are not from our state or you are not from our state and if we give you a license you commerce to the other state y in interstate commerce we're going to protect our local businesses that are not engaged in interstate commerce or not go out and our state they wanted to in that case they wanted to ship milk from new york to boston that was the interstate commerce like here the allegation is that we want to context we have here and that really wasn't affected and what the milk was it made outs where they want to go put a processing plant in new york and the concern was is that that would compete with local processing plants the same way the casinos in philadelphia would compete and that this one processing plant was going to ship it smelt to boston and engage in interstate commerce the same way the board here was concerned that we'd be shipping customers kalanick city it's the fashionable analogies it's pretty darn tight i would argue that in that case so we  think it was clearly established and we think that the district court was correct if we return again to the quality that even my that we don't get there if there was well in that's right and you know you have to go back to the purpose of  into the origins here you can't you can't apply these buts factors and some sort of abstract it has to be done in context just as this court recognized in thought so when you said it correctly the process devolves to whether this process is characteristic of a judicial process and you have to look at it it's entirety you know we talked a lot about the cross examination component but that's really just that part of the problem here the idea that the tribunal would go out and conduct extensive investigation hire experts put together task force take on this evidence and disallow the opposing party the opportunity to cross examine to vet the reliability of the credibility the bias no interest of these experts that's on her duff that doesn't happen and that you disapprove seating and it's simply it happened in the same thing with the public comment that would be the public on a process and in this case was similar to a judge getting down off the bench and saying ok we've heard from the plaintiff and we hope in the defendant i'm going to go out in the gallery and i'm going to see what they think and by the way members of the jury you should pay attention to this because i'm going to go out and talk first of all it's a game with a definition of ex parte and the board by its own regulations is obligated to go out and conduct investigations in its own education there's a paragraph that says the word contacted  the public comment comes in through the adversarial proceeding it comes and subject to cross examination in vetting and some sort of credibility terminations i see that my time is up if there are no more questions thank you very much i think i do have only is it the negative here it's in short keep in mind that these legislative appointees their terms are tied to their appointing legislator it's as if the legislator sitting there i mean they're two year terms tied to the cycle the white is truly illuminating there was also a one nine hundred eighty or seventy nine lodger on a lodge an article on the history of judicial muni and i think they provide some essential factual context and historical facts about the reach of communication with any person the one exception to that section and i'm reading from section twelve and two point one is that shall not include off the record communications with the department of revenue state police attorney general or other law enforcement officials prior to the beginning of the proceeding slowly for the purpose of seeking clarification or correction of evidence or materials intended for use in the proceeding which then are public i this communications as it occurred during the hearing or after or prior to the year i believe it occurs prior to her in your honor but i don't want to i do not want to make a statement that i cannot be certain and my understanding was that would occur prior to that's my understanding as well and then they hear the evidence is there and ice and your honor if you look at the butts decision itself from the supreme court one of the telling reasons that they found that that similar activities by people investigating for the partment of agriculture is that they were that other people performed the first prosecutor prosecutorial investigation functions and that separated the decision maker and that was fine with and that's what happened here there was no improper ex parte communication to respond just a further thought your honor on the question you had judge fisher about whether one applicant versus more applicants makes a difference in in the application the buts factors and it's if if that were the distinction then ultimately any public official involved in a licensing cont that had more than one applicant would not be able to get quasar judicial immunity and that just i don't think there's a basis for reaching that decision and finally just to respond judge amber us some questions about the second element of qualified immunity because both of those elements must be present what about the argument that the h b hood case is very close by analogy to our case and would show that there is clearly established a constitutional right with respect to the woman commerce clause in this case your honor a much more a case much closer is a decision from this court a month ago in the kelly decision and that's the reason for this the reason is the analysis there is precisely the appropriate analysis in kelly as the court knows there was an allegation that the policeman violated first amendment right of the person he arrested no one can claim that you don't have you know that people have first amendment rights and that's essentially what the court below here said oh it we all know that there's a commerce clause and equal protection and they've made allegations that they were breached therefore we go to the next step but no but the appropriate inquiry is is what your honor asked is the actor does the actor when doing the conduct that is alleged to have violated that right know or should have reasonably known that they were violating that potential constitutional right but but and here just considering a factor which ultimately was not even the decision the bases the decision which was location location location considering a factor that people think oh what is the possible bay what case says that would put the money notice that they're  interest one was one was given to an out of state owner one was an in state owner thank you thank you very much thank you to all counsel for very well presented arguments and also very well done briefs will take the matter under advisement as we are going to confer very shortly after this i would ask if we could have the courtroom cleared and we'll go from there again thank you very much