limited to some extent to what we're talking about specifically at l a x number one and number two related to let me let me see you suggest what i think the question should be is los angeles international airport and other airports similar airports in california a public forum public forum or a designated public forum for purposes of the california liberty of speech clause i think that puts the question directly and immediately to the court i think it with the resolution of that kind of a question i believe would assist every airport certainly in california and i think you sister the rest of the governments in the city that's just the city but throughout the state and knowing and understanding what is the test in california for determining when government property touches upon that issue although if you look at those two cases those two specific cases deal with private property not with government property and those two cases focused particularly on two cases marsh versus alabama  tucker versus texas one nine hundred thirty five cases that dealt with state action issues where they basically said that in one instance a railroad in another one another kind of there were private railroads that built basically company towns and said and i think we've all heard this expression if it walks like a duck and talks like a duck it must be a duck it was those kind of cases that the california supreme court in one nine hundred sixty seven read reviewed and came to a conclusion and said that los angeles the the train station in los angeles is well it is owned by a private entity it is also subject at least for car in context of the state action is subject to being essentially a government in a sense because it's and they talked about it being a public the term public form came up but i don't think it was it was in relationship to government property but in real life i think the focus of the court was primarily on are we going to change how we can interpret the law to say that this private piece of property can be viewed as as public property as opposed to this is government property how do we look at it is it is it a traditional public form is it a nonpublic form is that as it may be public for the state let me the california supreme court ha analysis they have not so do you think it's likely that they would sort of import the framework the analytical framework that the u s supreme court i believe they would i honestly believe they would lead you to believe that because i think it's clearer than certainly clearer than what the appellate court cases are going now and i think it's clear even though i can't say that cobar not clear because they are clear that is they're just in my view not consistent with what i think the california law is why do i think they would take it because i think that they took a case certainly has to follow precedent involving and ninth circuit decision and i understand that notwithstanding that california supreme court came out made a ruling and actually wanted if you look at if you look at the los angeles alliance for survival the california supreme court case that was very specific were just think it was ronald george the judge who talked about it and said to that author that decision and said in essence you know it's really great that we it took a long time and there's a lot of reasons why and if there's i don't want to belabor the point why because i think there are different issues came up and but there was a lot of facts and there were like i think probably ten different expert witnesses i could say purported ex witnesses and some is just but i think for the most part that different parts of the country we had to go to we had to depose we had to read their expert reports some of them hundreds of pages long plus there were  as the court as a word and i know you've seen the record we're talking about probably twenty five thirty different volumes of excerpts a record just in this case along this oh one point zero one yes oh  think it was two thousand and one issued a permanent injunction that was appealed it went to the ninth circuit we argued it in december of two thousand and two they came out with their order and march twenty first two thousand and three so there was an your no it was it was not amended a new one at that time there was another one and you're right there was a second ordinance and that that second ordinances in the second case but that second ordinance was a it was a response one that i have drafted in my head of that there are different options frankly and i think if we took that one i just mentioned a few minutes ago perhaps and put a comma or another sentence instead or has the federal supplanted by the basic in compatibility test i'm not trying to say what their answer should be so we have your suggestion in writing precisely what the question should be you know things you have that stated that way now ok you do have a question in writing that good morning your honor david lieberman for the plaintiff's international society for person consciousness robert most is with me this morning they have pleased the court obviously we do not support the concept of certification to the california supreme court why not well at least one case over one it's been going on for ten years well to go on for another ten  out a few important elements of go along with that well the critical element of certification as well as supplemental jurisdiction and abstention the substantial uncertainty and in order for the first sort of cation to be appropriate in order for the court to declines to exercise its supplemental jurisdiction or to abstain from hearing the state court issues there must be substantial uncertainty about the state law and you want to certify the issue of state law of the state supreme court that's just a matter of our discretion when i think that in the ninth be involved in the careers case in one nine hundred eighty five the briefing on the principle that federal court should not reach the constitutional questions under federal law if there is an alternative ground under state law in which the case could be decided was was briefed to quite minimally maybe three or four pages the ninth circuit took that case and rianne with it and and court that has dealt with that issue there is no uncertainty in the state court we have hofmann we have both written we have people versus singer we have warrants livermore we have  you know there's one thing that strikes me about all of this now that it is correct that i was involved in the alliance with just his case and i followed career as as i understand it at the time and when i got here to the ninth circuit the ninth circuit there's an interesting issue here about whether or not solicitation is content that question to the california supreme court they granted certification and they did a very lengthy and i was surprised i hadn't read the case in a long long time and i read it over was actually surprised about the way they came out which suggests that they're you know the supreme court's jurisprudence in this whole area when you're talking about solicitation and you're talking about restrictions on solicitation and location and whatnot that they're curious that their approach to these issues has not yet and you can't point to a california supreme court case that really addresses  public forum under california law or as compatibility in all why we had judge davies that we teach the same conclusion we had judge marshall that reached the same conclusion they took a motion for certification that was denied to summary judgment motions were granted they argued quite aggressively that supplemental jurisdiction should not be exercised that was  d they argued quite aggressively that the court should abstain that was denied so we have this whole record and no one and nothing has really changed in that time the now that has nothing to do with solicitors one of our experts the they also who the city likes to marginalize as somewhat of a crackpot in his deposition he  he's a former navy seal he worked for the da da his thesis in the military academy was on terrorism which is a classified document his job in the military was to secure military heat on the record that i will back that i can get seventy five eighty eighty five percent of weapons and explosives past t s a security and will last two or three weeks we found regulation that would have banned solicitors from the inside of the airport lead did say that twenty three twenty seven which is the first case that is a complete ban that the ancyl isn't patient donnelly inside the airport but on the sidewalks of the parking lots lee made it very clear that the sidewalks were available and that was that factored into their decision on the inside of the airport here there be any on the sidewalks  they come up here with one professional study where one document from the t s a or from the city of los angeles or from any law enforcement agency that says that soliciting there's a causal relationship and there has to be a causal relationship there has to be a good split project these verses want to look at tell it like that what happened let's assume for a second that the california supreme court has been given a question that everybody has come up with and it comes back with an judge marshall did rule on the federal issue in the second case in the second case somebody but if they came back and they said that it will this case tremendously but that's the point is that the and then might the certification code itself says that in order for certification to be appropriate there must be substantial uncertainty about under some time substantially uncertain as to what they would do careerist is a dinosaur mini get everybody get searched x rays i have a friend who used to live and i know just passed away who save george bush in world war two is one of the fighter planes overhead they strip searched him every time he went through the airport because he had metal all over his body from this  taught by the speaker if congress made it clear throughout the entire history of this case that we do not approach people in tickling we do not approach people in security lines we do not approach people in baggage people areas we do not approach people where they may be a captive audience you're going off we're going to merits of your case none of the overriding question of certification these are all easily addressed by we would already be in a hole twelve feet deep just assumed they'd have to be that way it doesn't have to be that way because beginner in it but just assume for a moment that we might that we're inclined to a question such as the one posed by counsel for the city to the california supreme court what would you suggest or how would you suggest that we should frame such a question answer and this is what he said binding authority cannot be considered the kid and cast aside it is not merely evidence of what the law it is rather case law on point is  the court might decide and the issue governed by a prior opinion that constitutes binding authority the latter court is bound to be the same result even if it considers the rule unwise or being correct binding to consider an issue sets the law not only for all the inferior courts in the circuit but also future panels of the court of appeals that i've seen i mean we're prohibited from certifying or a state law i think to the california supreme court if there's a previous twenty year a career is created careers we did not create kuku created quba so i mean this is very clear they have won in my i've done some extensive research on this and as far as i can tell they have one procedural avenue and bug i mean it that's assuming that the court would rule in favor of its kind in this case they have and bank that should go to the system that the city has implemented the sidewalks are open the parking lots are open the inside of the airport is ostensibly open but in reality as confirmed by judge marshall it's mean the sidewalks are empty much of the time people are hostile even bustling it's not the same environment as the inside of the airport there hustling and bustling there there is some hustling and bustling there but there are many places where there isn't like where well or you know before nine eleven how much if you raise maybe to three hundred thousand a year that was substantially affected after nine eleven and also it's kind been a good citizen when it t s a says they've airport is too dangerous all everybody out this con is never fought that this is kind of never a challenge that is coming is always abided by in the best interest of the security in the safety of the passengers and the people that are that are present in the airport but but there is an important point here we're not just solicitors is current speech to people about their religious beliefs it's c distributes religious literature as a last resort as a last element i should say they asked for a donation to cover the cost of the literature and is con is offered to exchange and i think this is consistent entirely consistent with lead which i read as a physical exchange of money cases and not the words that come out of a solicitors now the way the ordinance currently enforced and there's declarations by mr whirling to this effect is that if you even talk about a donation if your intent is to seek a donation then you have to confine all of your activities to these designated areas which judge marshall aptly described so the point is that what we've offered is that let us go around and speak to people other groups and individuals are allowed to do that let us go around and distribute literature you have to just say you're a good saying then of somebody that i'm sorry your honor just one of his one of our if somebody wants to make a donation we will bring them to the designated area where the physical exchange of money can take place that is what lee was all about and judge justice kennedy's concurring opinion makes it very clear that it's not the business of the government to start censoring the words coming out of a so of a first amendment practitioners now and that's exactly what l a x officials are doing they're censoring the words part of the problem as you present one interest this current may or may not be a good citizen give you that it's a good citizen they've got to have  procedures policies rules that cover everybody and so we might say well here's the deal but then everybody gets that treatment and i can maybe they're bad citizens and i've said well you're bad citizens and you're good citizens and now we really got a hornet's nest on our hands and i have two responses to that number one it's hornbook law enforced fraud in force misrepresentation and force interference with the guest room traffic flow and force any kind of inappropriate conduct by by laws that are on the books secondly secondly we have offered on many occasions on many occasions we have offered to support the city in its efforts to crack down on these other groups that were not good citizens we'll offer we'll stay away from your security areas give us a buffer zone we won't get anywhere near we'll stay away from your city from your ticketing areas we won't bother people that are potentially a captive audience we want do any of these things we've offered this on numerous occasions and all we've got is a door slammed in our face so we've offered to do all these things  and there's no reason that this current should be punished and between two thousand and two and two thousand and five over one hundred i think it's one hundred seventy million people pass through those terminals at that they don't have to share with three or four other groups creating all kinds of dissension and embarrassment and in friction between the various groups competing for the attention of passers by that's that's that's that's creates more problems than it solves these little designated areas try to trying to cram all these competing groups into it to buy six area so we've offered many many solutions i went before the city council and i had a whole list of rules and regulations for somebody says no that's the end of it we walk away period end of story nope no further no further argument if they're in a line that's the end of it we don't go there we've offered this to the city council we've offered it to judge the winters committee we've offered it to the board of airpor today and in three years with one hundred seventy million people twelve complaints is that a governmental interest is there a good fit between these these regulations and what's actually going on out at the airport were  against any kind of the illegal conduct as anybody else and we've offered to help the airport in any way we can and there's absolutely no justification for that we should be punished when we're doing the right thing when we're being good citizens and we're exercising our activities in the best traditions of the first amendment we should be punished for a few bad apples fair and it's not justified under the law because as i said the key to all of this is uncertainty of the law under all of the central issues that are central to this case and we do not have that this case you know what if they had how many different groups are often still listening maybe six or seven or eight or nine i'm not i'm not exactly sure it varies from the time of the year the time of the day with that would that that would help that would help one problem we've also offered to limit the number of total solicitors allowed in any single terminal we've also allowed to limit this is what hoover said over and over again this is what could be ellis said over and over again that the issue is compatibility these issues these concerns do not establish in compatibility but they do justify time place and manner regulations and we have repeatedly proposed time place or manner of regulations that would address and i believe rectify this the concerns of the saying that it doesn't mean anything to the court but certainly government agencies it's the last thing on their list it's not the first thing on their list but there's not a single expert on security that has identified solicitors in the airport and if you really want to if you really want to deal with the problem then you then you then you pick everybody out of the airport except ticketed passengers this is a handful cincinnati discovery network p tell a project eighty's or said it city of pocatello make it very clear that if you take it by taking fifteen twenty solicitors out of the airport and leaving two hundred million people there it's not going to solve anything and if you add twenty people to that next that's not going to do anything that's not going to have any impact one way or the other either so you don't even have that element you don't even have you don't even have a causal relation to visualize  and other terminals that some of it's on the same level but as i've said we did not even get near those areas and we are not going to challenge our regulation where do where do you get near what we just go off by the parts of the airport twenty fifteen twenty feet away from those security areas ticketing the lines there's there's a duty free shop quarter in the international terminal there's a whole corridor of shops and boutiques and and other paraphernalia it's a whole corridor you can get in there without going not to not at the current time no your honor ok but but but you want to go through the security area and the  the duty free shops are you know that's in the datsun the non sterile area that's accessible to anybody anybody can walk into the airport and buy something in any one of those stores and the duty free store yes as soon you qualify there are some other stores that are not duty free and you can buy anything you want in those stores you can go up to the food court on the mezzanine level of the of the international terminal and have lunch or have dinner and there's no restrictions on that whatsoever anybody can walk into that airport at any time they want now the airport may like it many not like it they may say it's for transportation it's for this it's for that but the point is that anybody at this point of time can walk into that airport for any reason they want to and there is no we stricture except for something illegal obviously there are no restrictions on what somebody can walk into that airport for at the present time they can go in there and buy something or just meet somebody coming in to see somebody taking off or even walk around and just look around there's no restrictions whatsoever it's a major public facility it's in the same level as proven you are it's the same level as all of these cases that talk about these big massive we'd you know facilities where it where the public congregates where the public is president and these my last understanding was the sidewalks were available and you could distribute literature inside the terminal and you could talk to people inside the terminal for example let me let me give you an example  terrible and there's too many groups to accommodate the dead there's not enough designated areas to commentate the number of groups seeking access to the airport but i'm limited let me just give one example  interpretation of one seventy one point of seven which is the second case the designated area cases and this kind of solicitor to talk to somebody in the airport could say here's our bhagavadgita or she might buy the time or other eastern literature and then in the course of that conversation that person may offer a donation offer to give a donation or correct or i request maybe the maid for a donation and you cannot even bring that person out on the sidewalk so you exchange that donation you can even bring them out on the sidewalk which is available you have to stay in one of the least one area one of here  i think the cork and just the dialogue that's going on here has kind of upstaged some of the comments i might have made in the sense that you i think you're pretty well familiar with a lot of the things i thought i wanted i'm talking about case number zero one five six five seven  analysis without question because the scrutiny that goes into analyzing the particular regulation involved the substantially less as justice person brought up new  and there's the court and i think i said in my case it is unfortunately a true situation that after nine eleven at least with respect to the airports everything is different and it's our view that even cle the concepts in league remember had nothing to do with security all it had to do with was pedestrian congestion that was the only thing number two in league you had retail establishments you had even justice o'connor saying that the regarding the designated areas what's wrong with that if you regarding the designated areas danger is that we have already resolved that the enforcement mechanism for section one seventy one zero seven when they get permits they do not mix in these designated areas different groups that's already been accommodated and taken care of you won't find a heart first remember in a red cross member or whatever else you however you want to look at that's already been taken care of the what mr l have over sixty different declarations on the subject subject matter where they get in front of people they remember the airport when you talk about we're only talking about interior well in the second case but generally speaking they bother people when people go to the airport now they're anxious they're upset they really are they've got all of these things in their mind as the court kind of alluded to a little earlier it's crowded it's havoc in some instances they have their tickets do they use any ticket do that where what can they put in their luggage what are they going to get searched your lip gloss and a little plastic bag right and it has to be a see through bag can't be an  mean it can happen that way these people that we've had declarations from a lot i'm talking about their comp i don't want to use the word confrontation but let's say they're their experiences with different violating this the ordinance going inside the terminals and not getting a permit a set or center set or if you're convicted three times within six months that's going to be fine three times within six months you can have your your permit yanked from you permanently but that what the odds of that to taking place are pranks frankly and little mountable if there's one thing i'm trying to understand about the first case is the complete being the first case they can do absolutely anything the first amendment allows other then immediately receive money in three different locations at the airport absolutely anything they can probably get money the problem with getting money i like into the leak case they have front case that even a case before this night circuit acorn case all talked about the problematic aspect of when you ask for money you reach in your pocket there's a lot of different things you do when people ask you for money you're thinking too should i give to this cause should i not give to this cause in the process of doing that what is happening you're in a stream of traffic and a flow of traffic your people are parked there walking around it's the disabled veterans have never been out to las to solicit for money but i think that if they were to do it if they were to do it they would not be able section twenty three twenty seven they would not be able to accept money money that's right ok so not content beneath the end result is that it's a very low level of reasonableness test and that a complete ban on accepting money might pass constitutional muster absolutely believe that given the change in the landscape today you're not enforcing the first ordinance now we're not in forcing it and actually we have never enforced it well what's the point of the first case if you go into a second or e that you say you can live with the second the second case the second ordinance is eighty six i think described as a stopgap measure we were concerned with the airport was concerned with the number of solicitors that was still out there and couldn't do anything because the judge ruled that you know issued a permit induction and so we need to do something particularly when we knew nine eleven occurred and those to the public they still do they do they used to do that up in the if you may recall before all the new security rules you know yeah they used to be you'd be in the waiting room and they come by and we all experience that yeah that doesn't happen anymore and the reason it doesn't happen is because there's really no place for them said anybody to sit down anymore in front of security if you walk what we talk about is the green areas those two hundred eleven thousand square feet they'd be very hard pressed to find a chair they did sedentary people for that they  because you're going to you need them stay because you're going to be they're going to walk in a come back you know think about this should i give to them and then some people do some people down and that would not be permitted but i can't imagine it being a practice that anybody would want to try safety act that says that if you don't have a ticket you can't go back there so that there isn't a problem regarding those kinds of things because people who did who are from the these organizations can't go back there anyway a lot of people don't have there are very intricate rules and so far as who gets a badge and the t s a would not allow that to any of those groups and it's never prevented t s a i can't say  specifically but in the meetings and first of all they do things where you know you see there often you see the rules and the regulations after they're implemented but i do and i'm not privy to some meetings where airport representatives are there but i've just heard from the airport representatives that they don't want anybody having badges other than those people there's a lot of people back there other than the ones that have tickets that's their primary goal it i guess since it would be inside the terminal area under twenty three twenty seven they couldn't do that the employee in the employee could not do that because it's inside inside whether they want to pass someone walks up to say would you like this ten dollars for your cause you haven't solicited you just accept it so that theoretically the two haven't met so it just has to be a solicitation and an immediate receipt so if you're just sitting there someone gives you something that's not a would not be