good morning ladies and gentlemen our first case for this morning is the university of wisconsin milwaukee student association against level  do we know for sure is that there is at least one student current student left in this group yes or are that step certain and that i have the one student that i'm absolutely certain of right here because he's a good friend of mine there are different definitions of student of course but he is taking classes every summer and he qualifies someone who certainly has a continuing interest in this matter and is encompass within the definition of student in wisconsin code thirty six point zero nine five that you're relying on yes yes there is a definition of students elsewhere in the statutes i think it's thirty six originally and what we consider to be the most important claim here are the you know what i would like you to do it should be very helpful for me is if you could just very succinctly tell me what your federal theories are obviously if the university isn't complying with state law that's its own problem but that's not really something that this court decides what are your federal claims the federal claims are all claims based on a particular individuals that in the course of the defendant's conduct were either removed from or denied positions in the student government  that that is the case they these are all essentially government employment these are positions that the students when they occupy them they have powers of office that are guaranteed under state law under and under this theory would let's say a local election for a school board which might have some part time compensation to go with it would  an election contest about such an election then become a federal constitutional claim on this due process theory it could i don't i'm not familiar with that s set out to be quiet by state by state law but but in your federal theory it sounds like disputes about under state law about the validity of election results or a gubernatorial or other appointment to one of those positions would necessarily become federal claims under the constitution because a state because a position in which the plaintiff has a property and alleged property interest is at stake i'm not sure i would be that categorical i haven't considered whether that would be the case all the time i don't think it would be but  it is it is possible that we're leading in that direction i understand that's troubling to the notion that federal judges are going to be referee student elections in state universities because some compensation is available seems to me a pretty sweeping theory you know we made out of the i think we've made out that claim of course the what do you have at least let's our put that in brackets then so because i share some of judge hamilton's concerns about  because the issue in this case was not merely a due process concern that they were deprived of of their property interests in those positions but in certain cases and that's probably all of these cases they were done so specifically because of their protected speech so there's you have the first amendment theory yes ok the first amendment's the first amendment so can you spell out exactly what that theory is for you for clients all of my clients that had student government positions who were removed from those positions were strong advocates for a vote for a view of thirty six or ninety five and student independence that was disagreed with by the university they all made public statements which they said you know we want the university to recognize our authority in our power we have the right to do things differently than the way the university is telling us we need to do them there were specific disputes over things like funding for the you to b m union and in each case when the they went out  things that the that the university didn't like the disagreed with their political position they then exercised their authority to remove them from office or prevent them from attaining office sets of retaliation theory they they were retaliated against for the content of their speech yesterday ok any anything else did i think there's a little a little more of that i'm not sure how well we've we've played it but in fact  you know there was some touching even freedom of religion in one of the perfectly are cases of mr city who was in fact at one point ordered to make statements that were contrary his his beliefs which as a muslim he could not make consistent with his faith and there is a lot of association along with the speech because that these it's all about this the these individual students that are acting collectively and joining with one another to oppose the university's positions strasse you i understand you in your briefing to be at this point disclaiming money damages at least on the six cause compensation loss compensation which what i mean is a very small amount but it's still money damages and other harms to the individual plaintiffs for the value of their positions if we could establish that we might need to bring in a vocational expert to explain what the impact that was on their future careers but there is at least potentially some money damages in each of those now some although not all of the defendants raised sovereign immunity as a defense and obviously when you start talking about money damages and it's an organ of the state is your job you know i mean is you know it concerns come up while of course because for nine hundred eighty three for example the state which would include you isn't even quote a person so you don't you know get to the eleventh amendment or sovereign immunity because just not person under money damages i believe that we have other than i think there may be some minor statutory damages in the public records cases i know i haven't looked at that even over in awhile  but primarily the money damages would come from the federal claims let me bring this around it ask you whether even if it turns it were to turn out for some reason and i won't bother to specify what those reasons might be even if it were to turn out that money damages are not available given the posture this case is it correct to say that you are still seeking injunctive relief to resource the nature of the student organization that your clients thought you should have had prospect to flee absolutely there's so are looking for some prospect of purely injunctive relief absolutely no we would like to see the  him student associations constitution accepted as legitimate constitution we would like to see the current puppet student government you know declare void and for the process to start over and appoint a legitimate student government that truly represents the students we would like to see old legislation that was put on the books by the legitimate student association at the time recognized which was deleted by the new  and that could all be done prospect of lee without any money being involved with out anything could just so young there would be there there is there it would there would be some issue in terms of the allocation of future funds because the new student government would be making those curious these elections are held every year yes or and so we're at least three or four election cycles past your individual cl right yes so the prospect of injunctive relief i mean i've this this this echoes to me of of a challenge for example to the results of the united states house of representatives elections in let's say twenty ten and we wouldn't grant injunctive relief today and we wouldn't issue an injunction that voided legislation enacted right i'm i'm not sure what you would do i certainly got through you know we would not be asking for that i mean the election process does go on every year and exactly what type of relief would be plausible at this point i think it changes as time goes by certainly there's no reason why if it's if it's recognized that the case was court and the efforts in state court were denied and was an appeal taken they've they were denied no appeal was taken there was one related case in which there was some injunctive relief provided  solely to mr city some of his claims i you know this would not be i think the fact that time has passed it certainly means that as time goes by the prospects of meaningful relief do shift and they do out but there's no reason at this point i think under the law why you couldn't go back at this point and say this body is is mis founded it's in continuing violation of the state law because it's it's not a representative student body it is not what the statute requires it's  body reduced to writing in some fashion yes to be competing the student body has a constitution that was adopted by a popular student referendum after having been offered to students in  in a petition so thirteen hundred fourteen hundred students all signed a petition with the constitution that was proposed attached and they all endorsed that and then there was a subsequent referendum in which it overwhelmingly the what we consider the puppet student government to control student fee funding to control appointments to committees like the chancellor certain screen committee and we'd just like that  to change prospectively at this point it would be nice if we could have gotten more of it changed so as a mommy willing actually i mean just sitting at narrow this further even if you just were to receive an injunction that says  implement the student constitution the student body constitution that was approved by the voters let the new people change the legislations we will i say you know you can't begin to go back and undo all legislation as soon as you have a problem with an election is a sweeping sort of ran right which we don't do normally but if but if the prospect of lee once you've is as it were restored democracy you let them do whatever it wants to do maybe they even like some of the things that happened who knows right and made we've made a broad request in our claims relief but we understand that if this reaches the stage where there is a trial and a conclusion that the judge in this case would have broad authority to shape appropriate relief yeah i mean that's true anyway and of the federal rules so me ask you this from a basic understanding how  things the district court did that i find troublesome that don't have anything to do with what we've just been discussing with mr grass one of them is to look at the affidavits of service and just decide  therefore you know after a lot of time but there are no competing affidavits in the record so i don't understand that i don't understand why in federal court twenty eight u s c section fourteen forty eight doesn't govern the time to serve after a case has been removed and there are still unserved defendants and i don't see any indication that judge stat knew or recognize that he had freshened to allow extra time under rule four am even though whether or not there was good cause or anything so i think there's some problems with with that and i can move on to sovereign immunity in minute but if you want to talk about this i do first even the fourteen forty eight deadline was not met because there's there's discretion in the district court that's why i mentioned four m and that's really extend and there's no hint and indeed what he thinks which i believe is a legal error is that his hands are tied by wisconsin law about extending time for service but time for service is a matter governed by the federal rules the consequences of a late service perhaps for the statute of limitation is something under erie in the like it might be governed by state law of the we have we haven't gotten there yet we don't believe walker against harm post still problem all we're talking about is how much time do you have to do the mechanical act of service and judge stat mueller seems to have thought well it was too late for a wisconsin court therefore it's too late for me and which is a mistake i don't think he said that i think he said that regardless of the rule he could ninety days which cannot be extended or if he only twenty days under fourteen forty eight either one was missed here and that's where he should have turned to rule four am well it was it was more than a year late here it doesn't matter he should have turned to a little four am the vende should have asked is there a reason to exercise my discretion to extend the time he doesn't do that he thinks he can't because of this wisconsin law i don't read the decision to say he thinks he can't i think that he may not go to through an analysis of factors but he no citation of fourteen forty eight then in the next paragraph he says the plaintiffs assert fourteen forty eight but he says then the fourth and eighth circuit found a case where the  has expired you can do new service and then he just goes on in the next page up to page eleven now where he's saying they still failed no affidavits except then he says dubious looking  four showing late service a year and a half after the parties are joined after the ninety days after the one hundred twenty days and that's where the rule for them comes into play rule four am which sets time limits for service of the defendants not served within ninety days of the court so you have two things you know it's the plan of shows good cause the court must extend the time for service but the court has the power the court may extend the time even if the court you know doesn't think that something is high is a good cause standard i don't have that such memorized that is generally not done after the timeline has been missed i don't know if it's permissive or not but that would be very unusual and particularly a year and a half after a party which you know well but the removal changes the time frame quite significantly for this you know that that timeline was missed as well what you would have to do i think you can take some of the district judges language concerning rule six and if that same reasoning applies to rule for him that would be a good explanation as to why  the judge stat miller was not inclined to exercise grace to allow those defendants to be brought in so late now it's not quite as neat as a rule for analysis but it's some of the same points of the that that may be true but there is also on page twelve this is why i made the point i did initially where he says second whether the court considers excusable neglect or good cause to be the appropriate standard that's where he's trying to bring in whichever it is six be your rule and he says it is wisconsin's law of service that controls in this removed action removal applies or should apply when service is not completed when removal takes place ninety days is the end of the serious period in wisconsin law and the cases do say that a federal court upon removal only gets the jurisdiction of the would have had no reason no way to not get hardly true either because i mean we're in fourteen forty eight now and it just says in any case removed any one or more of the defendants has not been served with process or in which the service hasn't been perfected that's our people there are bunch of people who had been served such processor service may be completed or a new process issued in the same manner as cases originally filed in the district court w court that timeline was not met here that's your best point it is not because wisconsin law has anything to do with it it's because fourteen forty eight and of course it changes from one hundred twenty days to ninety days  during the course of this lawsuit but even you know we would assume one hundred twenty days but my concern is that just records using the wrong intellectual construct is he's looking at this and it may have affected to whether his discretion should be exercised well your honor i think our response to that is it just it's not reasonably of an abuse of discretion here to not allow service more than a year and a half after the parties are brought into the case when both state and federal guidelines were missed well i'm saying that that may not be the case anyhow your opponents have other things and when the district judge uses the wrong legal framework you just don't know how he would have approached the case if he was using the right framework so early could i ask of what troubles me is the  disposition of the little claims here i'm sorry lose disposition of the federal claims milt's one through five it's a little hard to follow frankly but my impression is that they're being dismissed for having been improperly joined together an ordinarily the remedy for mr joinder would simply be to sever allow them to go forward as separate actions  dismissal would be without prejudice certainly they are mis joined i think the core of that is not clear is there but judge hamilton is right the remedy even if they were isn't to throw the whole case out but the core of the decision here is that court this is not anything like these cases where prisoners bring forty eight claims against sixty five officials and they're all not different prisons and different problems in different times it's all this is has got a core of fact about the student government structure at the university of wisconsin in milwaukee and so i'll just say it's a much closer case in terms of rule twenty unruly teen than anything we've been concerned about in other cases in this line well you know the the six claim the one that the one that i think they would argue ties it all together as has been dismissed for seventy two reasons and many of the defendants that would be necessary to theoretically tie these together at the dismiss for lack of jurisdiction moto g p the board of regents and the chance but that bit but we're here to review all of that i mean so in terms of assessing the complaint and asking whether what should've happened is which i channel to describe severance maybe somebody gets you know new docket numbers they've got a file of it you know make additional filing fees whatever they're there are plenty of tools for the district courts to handle this gives the other party notice of what the case is about is not what our hope is under rule eight but you don't edit people that tightly i mean imagine the job of the just records if every time a here i don't see the smiths whole with prejudice and i also will just for mind you that rule twenty one says without any equivocation this joinder of parties is not a ground for just missing in stayed fairly to file a comment a complaint is grounds why was this complaint not one which showed that there was federal jurisdiction that show the wrong that the person felt had been committed that showed the relief that the person yes is it long and boring sure it's him or not that's not grounds for dismissal that's not that's not a failure to state a claim upon which relief can be granted it's more than long and boring it is conclusion it does not let the defendants understand each of the letter with a marvelously clear what they're complaining about i just mean i don't know what version of code pleading you want the federal extra filing fee and if they don't want to go forward on the restructured case fine well you are creating a remedy that is simply not there in the federal rules of civil procedure and there is a four way to the apples so if this was another  gave him tylenol instead of mo trim and you say that's not that fails just say to claim you haven't shown you know a serious medical condition and he tries again he says tylenol not motoring that's the kind of thing if that's all he's got that's all he's got there doesn't need to be any need to reply that's not what this situation is about there must be some limit and the destructor right why not try some to remedy the one give them sever never to have that so the idea would be to have the judge make a decision for represented parties i just don't think that's that's a good way disagree we should we should then go to the rules committee and say please delete rule twenty one yes and if the plaintiffs believe that there they have properly joined these claims they're entitled to adhere to that position and then if the jinn and provoke the judge to take action right they don't have to comply with his workers about how they plead on those matters and if the if the judge is not satisfied the rules provide the remedy of severance so and then those issues can be appealed later briefing why this complaint fails to state a claim on which we believe can be granted what element are they missing conclusory allegations that do not let the individual defendants understand how they need to respond to the allegation your answer to my question you're not telling me i mean this thing goes on forever they're talking about what the general defendants did how they're forcing them to make apologies how they delete them from their jobs how they change the student constitution how the right to organize recognized in thirty six point zero nine five is being violated so the students do have a right to self organize not there is that only some of the defendants who've for dismissal on sovereign immunity grounds the board of regents and the student association what that was called the d s a did but each defendant who here related to the sovereign immunity and there's just nothing practical going forward that can be done despite what your opponent was willing to narrow his case to in our first part of this argument yeah and i i mean it's up to the judge to decide the scope of an injunction set up to the parties yes you know i don't i don't think there's enough in the records are or are pleading now because there is no record this is on the pleadings right or even allegation wise but i don't think that i mean to your point exactly we are now in years past a constitutional referendum what can reasonably be done prospectively to fix that based on what occurred in place the new constitution and let the process move forward simple the new constitution that would be the one that was never adopted never endorsed i wonder if that jordi of students voted for i do not believe that's correct i don't think the pleadings even say that i don't think that a majority of students voted for the competing well it was just represented to us that had the right to anyway do something like that could easily happen a new election could be called sometimes that that's enough  the new election i think the only reason the only way a new election would be provoked proper perspective is if there is some suggestion that the current election the election that put the people in power are there now was somehow defective and that's that's not alleged it's not part of this case so i don't cook and there's any meaningful perspective really to be printed here all right well thank you very much thank argument m b applied and we did make that argument in our our final brief that was opposing dismissal of third amended complaint we explicitly said in there even though we gave a little bit of a rule six now says that there might be some misunderstood that i'm if i understand the situation correctly mr grass there is an argument that judge stan miller did not properly exercise his discretion as you asked him to exercise it under rule for  him i have to say reading his decision if we were to remain and ask him to exercise his discretion on that subject again it's hard for me to see a different result maybe but  decides when it sends it back down to the the district i think they're going to have to look at it very carefully and in the process of exercise that discretion i don't know what will happen i mean the judge could change his mind based on based on full consideration of all the circumstances i think the judge will obviously want to be very careful when that happens suppose we send we said go back and try the case could you try the case on this complaint i think we could what kind of instructions would you have well i think we if the state claims were there we'd certainly have to have detailed instructions chapter thirty six because no one knows what it is is think this would be abi obviously there would be a chance for discovery and perhaps the judge would would allow certainly find it in the complaint i'm not sure they would be necessary but we are past that bridge when we came to it well maybe you should when the case when when before us