it's just a meeting situated thank you morning your honor some may please the court my name is terence o'neill assistant attorney general and i represent the defendant dennis marinelli your honour's the trial court heard here by substantially negating a nullifying the state's indemnification  and it did so by completely ignoring the th amendment prescriptions against doing so by extending preemption doctrine generally allowed under one thousand nine hundred and eighty three in a manner for which it was never intended here the trial court this in the argument section i saw just a general assertion or is this a preserved argument that you're well it's preserved in the sense it's preserved only in the sense that the you know it's an awkward argument for m make right he is not the state of connecticut has a separate free standing individual but retired department of correction official and the trial court below of course ruled that it was barred by the th amendment from then doing exactly what it did which is reach the state's indemnification of mr marron ellie in fact i think the only fair way to read the trial court's decision in this case is to say that the trial court judge disagreed with the state's decision to indemnify mr marron ellie and then work backwards from that was unlawful and my correct that was part of the reasoning leading up to the conclusion that under the whole circumstances you're taking fifty percent of the of the judgment for cost of incarceration and another sixty five thousand dollars as sensually as a lane for cost of future cost of defense which was apparently based on another state action going on and those two dollars things in combination with the indemnification caused the district court to conclude that the sum total of the state of connecticut's actions here were inconsistent and therefore obstructed the purpose of nine hundred and eighty three dollars am i correct in the way i've done that or do you disagree and think that the district court specifically found something  unlawful about indemnification i think replete in the district court's decisions your honor is the notion of the district court that the state's indemnification was improper but the trial court the judgment minus about fifteen thousand dollars in child support payments which if the state were to deduct its debts mr marron ellie would then be responsible for paying more than three hundred thousand dollars more than the judges are fine again there were two decisions here that are under appeal right there is the motion a clarification the sixty nine and then the one for creditor danced to get two motions it's always there were actually two credits that ultimately the district court recognized the christer court recognize some credits yes you are right in addition to the child support well it only recognized a portion of what mr williams has received and it expressly ruled in it's a last decision before the court that it was going to stop doing the math on that until after i heard from this court on the merits of the appeal so i certainly invasion that if this decision unfortunate were to stand   in the face of a punitive damages award and the nd rd and th i guess were you know one with regard to how to deal with child support payment too with regard to the cost of incarceration and three the cost of the  careful analysis of his reasoning about each of those aspects and it was more than a one line order saying i don't like this it was more than a reaction he gave a preemption analysis that line that's absolutely correct but there is no analysis short of attributing the state's motivations to the same motivations that caused congress to adopt one thousand nine hundred and three in the st place can you answer a factual question is there in the public record any  accounting of how often the state applies its incarcerate costs of incarceration or the public defender statute against incarcerated individuals were formally incarcerated individuals there is none in the trial record or in the public record your honor i would submit that the only place that i could think of for such a source is other attorneys in my office bring collection matters in the state superior court usually in the heart for judicial district to collect cost of incarceration how that how that would be captioned or are gleaned from the fact that from the public record i do not know is there anything in the attorney general's office like manual that says you always need to do this when someone has been released from incarceration maybe earning money no your honor there's nothing in our office manual or office practices that indicate that so there's and we have no sense from the record public or otherwise i can only make a representation to as an officer of the court as to how the office goes about doing that and what about public the cost of the public defender i do not know your honor the cost of public defender is a separate matter because the public defender the public defender services commission is a freestanding agency while the attorney is there is there any record about whether that is a routine matter for the attorney general's office to pursue i do not know your honor i do not know i don't know of anything in the public records of that effect and do you have any idea whether that's a widespread practice across the united states i do not your honor i will note that in the beaks matter that we rely upon express the notes the eight circuit expressly notes that included with the cost of restitution the victims compensation statute that it up held in iowa  against formerly incarcerated individual and and i think you were implying that allows offsets against bivins awards but i didn't see a very full record on that account can you help me your honor i could not find any we could not find anything more than statutes but we don't have any records about the actual practice correct or at correct correct your honor and what i would say is you my time is up unless it's me please continue what i would say to that your honor is this obviously hankins you know we have a case more than twenty years old now informed by hankins by the beaks decision that narrows it and informed by the brown decision which we rely upon in our brief from the eastern district we have a statute in connecticut that was written in two thousand and one in an effort to some address some of the concerns in hankins but to be consistent with brown and what we did was we recognized that perhaps hankins in the hankins matter where the state chose to take ninety percent of the verdict of an award that was almost entirely exemplary established to send a message to to serve the deterrent functions to be almost a civil equivalent of the general to turn function of a step of a criminal statute a criminal penalty right we have punitive damages that are assessed not only against the individual to deter him but also to generally send a message of deterrence to others who might be inclined to act the same way it does in a candidate of unity three have both purposes in other words it isn't choice determines it's also compensation correct and i would respectfully submit your honor that applying the traditional tort policies and procedures and law that nine hundred and eighty three adopts to address some of these situations when you're looking at the compensatory nature of the verdict here set offs counterclaims liens all of those things are in play as as the dissent in hank as soon as brown notices if you don't recognize that and if you just go back to the very purposes for which nine hundred and eighty three was applied you're cutting from whole cloth without any pattern at all you're making up it on enforceable standard can you direct us to any resources that might suggest that congress is aware of or has considered state collection statutes in the context of nine hundred and eighty three i can't your honor i'm not aware of any  not aware of any but i would note that here our legislature certainly in passing a statute after hankins after brown and respectfully after the summary order affirming looked at what's making some kind of a balance between recognizing that individuals should be incentivized to bring lawsuits to challenge misconduct but on the other hand should be obligated to pay their debts and our statute strikes that balance in a manner that's very different from hank it's very different might the balance be struck differently here i would say no here your honor because it's one thing to say that the jury based on a record before it made a certain decision but there is an other there are other factors that works in this case were excluded from evidence of other factors that can we try the the trial i mean the judge made his rulings the appeal was dismissed was voluntarily dismissed and we have the finding plus then the remitted turned from four hundred to fifty nor am i asking th  court to retry the completing small but as your honor pointed out there was certainly a basis for the state to not endemic and i think this is the problem that that that the trial court struggled with and never got past and that is that there is a sense that somehow a circumvents or somehow negates the decision below of the jury and i would submit that this plaintiff stands in no different stead than if mr marron ellie had paid the judgment because if he had paid the judgment and the state of the trial court's decision seems to be that by the state coming in and indemnifying mr marron ellie that mr marron only was allowed to avoid the pain and penalty of the verdict against him well that wouldn't be true if he had paid the judgment  i got this verdict against i think part part of the concern is that it's the state who's the payee the state is paying the damages award and then taking it all back and so unlike in the victim restitution kind of context where there's a rd party who's receiving and that's why the state is here your honor because that is that is a egregious and severe thing to accuse the state of connecticut of in an absence of any record to suggest that our law presumes the opposite right our law presumes the governor of government officials act in good faith but part  constitutionally entitled to a defense to the costs of their defense and one doesn't hear about that generally that that happens routinely and we've just ascertained that we don't have many much by way of that about that so it seems it has a punitive flavor it has a flavor of negating the jury for addict and i think that's part of what concerned me of concern the district court in the does concern me whatever is one thing your own right e to and you find actions by statute that created an obstacle to achieving those goals and we have you know different views about what kind of obstacles a sufficient and so on but i don't think you have to find a preemption decision but even taking your argument you're honor's argument or stances argument here we do not have a situation where we have taken everything and i would respectfully submit that your honors are going down that why wouldn't you be entitle to i mean you you allege that he's going to be incarcerated for thirty years it's one million eight hundred thousand dollars doesn't the statute give you the right or don't should you be claiming that you're entitled to everything our legislature has is has assumed that there needs to be some balance because i think if you take everything you take away the incentive to vindicate one's civil rights or one's other tort remedies or any other claims you might have against individuals and so to avoid the hankins trap and to be consistent with what the dissent and what the noted in brown is that if you go down this road of parsing percentages then you underscore the arbitrariness of the rationale behind hankins and and what what what what will be left now isn't the state entitled to the st of all the public defenders of even this court civil rights law recognizes public defenders are not state actors they're independent of that the public defender services commission stands for you can terms of the compensation of the prisoner for the horrendous abuse that he suffered he is getting fifty percent of the course of increase he's getting fifty percent of his recovery plus the council fees deducted from what he was your stated another way your honor he's getting plus or minus seventy five most harmonious way of reading what are just what these are in district in brown with what that made majority did in hankinson what the circuit then curtailed cut back and be is that certainly nine hundred and eighty three damages awards can serve multiple purposes and here because of the way the case was presented to the jury and the verdict was written and by the jury we can actually delineate and parse out what was awarded to mr williams by means of compensatory damages and what percentage of the verdict was sent was intended to send a message to others i don't want to prolong this but i do want to ask you about beaks you say because in some way limited hankins but beaks was about victim restitution which was part and essentially of the sentence that to me is a very different thing than cost of incarceration which was issued hankins in other words i don't see it as a limitation there not the supreme court has recognized in general specifically with a notice of filing fees correct that nine hundred and eighty three in some circumstances can preempt  state law so i'm not so sure that i can agree with your assertion bieksa is somehow limiting can you amplify a little bit i'd be happy to run st of all the th circuit itself says that hankins recognizes that it refers much as our eastern district incision in brown refers to the unique circumstances of hankins and my interpretation of that language your honor is the unique circumstances of hankins is that you had except for a dollar entirely exemplary entirely punitive damages yet nominal damage award for compensation to prove actual harm but you had a jury that decided that a message had to be sent and then the state came in and completely undermined that message by taking ninety percent of the punitive damages in beaks and in brown you have wreckage and the majority itself in a footnote in hankins recognizes that under those unique circumstances they're deciding that case narrowly and there was an effort to curtail i suppose what the what the dissent was saying which is that if you if you arbitrarily decide that preemption bars state collateral lien assertions without some citation without some reasoning then you swallow everything and you preclude all efforts to collaterally collect from a judgment so that's what i mean when i beaks recognizes that brown recognizes that and that's the problem that we have here on this the underpinning for the trial court's decision here is to cite back to the very purposes that and three was passed in the st place there's no evidentiary pattern to show that the state asserts these things are arbitrarily or maliciously there's also no pattern to show that the state engages it repeatedly in the kinds of and that tough thing could be further from the truth mr williams received compensation he received seventy five thousand dollars in compensation he has that money in fact the record indicates that he spent a lot of that money all right we'll hear from your adversary thank you the court to affirm the district court's comprehensive thorough and well reasoned opinion i think maybe the most productive use of my time to address a couple of the questions raised by the panel to my colleagues starting with judge stands to leave your question dealt with what the district court actually potential eleven amendment issues that it was could run into and to that end took great pains to explain its opinion why it wasn't taking any particular action against the state but was instead concluding that the effect of the state's actions was to prevent mr williams from having been compensated by mr marron ele so i disagree that the holding of the district court is that indemnification is inappropriate in fact the district court's opinion goes to some length to explain that it's not holding whether or not indemnification was appropriate in the last motion on appeal judge she's order on a motion for courage against judgment i believe mr wind also took a current of four amount that he had previously spent wall incarcerated in the commissary so i think the current amount of the judgment is about two hundred and seventy thousand dollars what was the amount of the attorney's fee you're on in that case is still ongoing the amount set forth in the underlying state complaint by the state of connecticut is forty eight thousand dollars they have frozen the state status frozen sixty five thousand dollars in mr williams his prison account and has indicated in some of their briefing papers that they will be seeking amounts in addition to the forty eight thousand dollars set forth in the complaint and i would also kno is the fifty percent figure applied to resort with three hundred thousand two hundred and fifty dollars compensatory and fifty is is is exemplary or punitive and what is the fifty percent applied to because the statute says fifty percent and after payment of all expenses connected with the cause of incarceration which i guess includes attorneys fees no you're right  i don't think it would i think it's of the daily rate that the state can get charged its inmates for the privilege of being housed by the state turns your question more directly to three hundred thousand dollars was divided up into three segments and spelled out in our brief fifteen thousand dollars went to satisfy child support lead to a rd party and then half of the remaining amount which is approximately two hundred and eighty seven thousand dollars was cut in half without any attempt to distinguish what money from what a war went into what happened mr williams what was deposited half the other half was never deposited mr woods went into a different pocket of the state of connecticut to judge carney do you agree that there's no record evidence or no public record showing that the efforts by the state to cover the costs of incarceration and the costs of the public defender service in the way that it did are anything other than its usual practice and it statute has been in place for fifteen years or whatever your honor i don't believe there's anything in the record that would indicate one way or another whether or not the state's actions were normal or not i would say that with respect to the public defender fee action which was only commenced against mr williams when he raised the issue of whether or not the state could take fifty percent for cost of incarceration that issue was raised in the su point about what mr waves may be left with i know the state of mr manners counsel represented by the state has indicated that mr williams may walk with seventy five thousand dollars i don't believe that that is totally accurate because the underlying public defender fee action is ongoing and i'm believe there's evidence from the record indicate that there's at least one dollar petition being filed on behalf of mr williams or at least of the a b s action is ongoing so i think the spectre's raise of of additional public defender fees  the near future which would then further reduce the amount of will cause his take home money i think that's actually an important point with respect to the deterrence factor of one thousand nine hundred i'm sorry you're saying that connecticut public defenders are representing him  that's correct your honor i believe as evidence in the record that there is an ongoing a b s action right now and that the and that connecticut public defenders are acting on his behalf rect but but to the point about turns which we talked a little bit about i think that a cause of action right and you know management of prisons is an area typically controlled by the states and managed by the state these kind of statutes seem to be widespread indeed the federal government seems to have one why is that with the limitation kind of balance forty percent and you still have the kind of claw back shell game argument so what are we really dealing with here what rule is actually derived from the district court's action yes your honor we would still be here if it were just the cost of i think the district court rightly noted that we will find ourselves in a worse situation because the state chose to do what it did you know i don't hear mr merely advocating for a bright line rule i'm not sure what is necessary in this case because it doesn't seem to occur that frequently at decisions but we do have one thousand nine hundred and three awards we have medical insurance claims all the time for example and if various wards are made do we need to be telling states to be cautious in applying any cost of incarceration constitutional violation i think if you read the district court's opinion you'll see that the district was bother not only by the fact that punitive damages were awarded but that the jury made a finding that the actions were committed maliciously or with reckless indifference and that's sort of the position advocated by the a c l u of connecticut and samak its briefing is that the fact of punitive damages isn't the determinative factor but rather the reckless or intentional malicious actions that gave rise to punitive damages that takes us outside in ordinary case the  of the word clawback seems to me to be to be potentially distorting because correct me if i'm wrong but as i understand the law the statutory right of connecticut to to  statute gives connecticut the right to get the statute gives can it get the right to take the money no matter no matter who the judgement was against even if it was against someone who has nothing to do with connecticut for an order a bill accident or something like that that occurred  prior to the incarceration if the prisoner wins a judgment and gets money connecticut has the right to take back the fifty percent of the cost of incarceration is not right that's correct your honor i say to take back i mean to take to take not to take back because correct i believe the term callback is being you only because the money st came from the state of connecticut and then returned to their pockets if it were the situation you described where you had a rd party payer or who was in the state of connecticut it wouldn't be a clawback you'll be the state was troubled by the facts of the situation as a whole of the state's actions with respect to the ward in favor mr williams and i think the court need look no no further than the specific facts of this case as applied to the district's analysis  ok very very quickly i know over the time i'm looking ahead now if we were to rule as you are advocating that preemption here did occur either as to or as to the lean to sixty five thousand lane which you're saying may grow probably will given the habeas i'm wondering if we were that way then the judge and the judgment gets satisfied eventually and once the judgment is satisfied the district court no longer has jurisdiction and if the jurisdiction is based upon the inherent power of an article three court to enforce its judgments what about the race judicata fact of our ruling on subsequent actions by the state of connecticut to obtain part of the fully paid judgment wouldn't there be a possibility that connecticut couldn't get either one because of the effect of our and depending on how broad or hung around it is isn't this a business a problem that we must have to deal with here i don't think so your honor and i think the district court thought about the situation and believes in a foo motion or on the motion for clarification which indicated that when a judgment is paid the parties usually reach some agreement and my understanding is in most one hundred and eighty three cases where a state is indemnifying its employee there is some discussion between the parties about whether or not the state will choose to enforce its liens against the it is paying and that's the ordinary course of how these things go i think you don't know any of that none of that has happened well your honor for all intents and purposes the state is still indemnifying mr merivale you mr mandela who is the party to this appeal is being represented by what happens after that with respect to future actions by the state of connecticut under these very two statues that were alluding to your public defender and you guys you're on i think it's interesting question when we were that your honor i suspect you will as well your honor i was respectfully submitted the questions to my adversary underscore the dilemma that we have here and that dilemma is that we have a situation where you're being asked to set a rule which says something like this if the state of connecticut chooses to indemnify an employee who has an adverse judgment on a nine hundred and eighty three case the state is precluded from asserting any of its statutory liens i think that your adversary suggested that this verdict is distinguished by the peanut of damages award and maybe even still even still if the rule you're being asked to impose is that the status precluded from asserting any statutory liens as to in a situation where he chooses to indemnify an employee where there is a punitive damages award but the state is not precluded from doing so if that employee pays the judgment that decision that makes no sense and that is where the rationale of d the effect of the ruling is to say that the the state of connect connecticut may not enforce these statutes as to the recovery of the cost of imprisonment when the judgment won by the prisoner is against a state employee at least in circumstances where there was a conduct warranting punitive damages regardless of whether the state of connecticut fees are was a state employee he would both in the case where there's no indemnification where there is indemnification would defeat the deterrent to active and in either case it would also defeat the compensatory can never be any assertion of a government in a situation where the state chooses to indemnify an employee and what would be the basis for that that is exactly what be turns on that's exactly what you see around her this is certain by the district court as i understand it is that the the connecticut statute the enforcement of the connecticut statute against the judgment won by the prisoner substantially defeats the objectives of nine hundred and eighty three respectfully rahner i don't see how it could because what we've done what your honor is saying is that the only way that an individual who brings a ninety three action is vindicated by being sure is by being sure that he collects one hundred percent of his judgment or her judgment and this is really one hundred percent good but in this case it's fifty percent that's being deducted and then there's the odd meaning that doesn't mean necessarily even if the if connecticut purported to take fifteen percent that would also be bad and that's and that's what that's where the rationale of hankins fails that's what brown points to that's a big points to once you go down that road  other than hankins it has it it has a constitutional aspect that most statutes don't it most certainly does your honor but but ever since it passed your honor nine hundred and eighty three dollars was an imperfect act it was imperfect in the sense that it imposed for the st time and gave to congress in the federal courts for the st time the authority to enforce the bill of rights against the states recognizing that because of its imperfection because it was a jurisdictional statute that creates a cause of action and no more that the courts from time since have to draw from common law to interpret the scope and the applicability of that statute trial court didn't do that here the trial court didn't look state of connecticut's actions here to the actions of the states that led to the passage of the one thousand nine hundred and eighty three in the st place without any record for doing so any record any evidence is there any history for doing so is there any record evidence suggesting that the connecticut legislature had night at nine hundred and three awards in mind or did not have them in mind when passed the cost of incarceration recovery statute not directly your honor the only thing i would say is indirectly because clearly it follows decisions but other given the paucity of of authority in this field your honor i think it's reasonable to assume that judges like you of the very good thank you very much well argued will take the matter under advisement and that concludes our calendar for today we have one matter on submission united states versus