we're here for the you to answer for certified questions the first of which concerns the definition of the term decision on the merits of the class action statute let me ask you a question regarding befor ether at least one maybe two maybe three questions are involved questions the fact that precluded a and he answer to be given by this court i don't believe so you past in other cases have accepted certified questions and then upon further review or more detailed review determined that the certified question is accepted by this court i have  actual questions we in turn have declined to answer those questions and we could do the same here i would actually differ said your honor because a supreme court said answer them and saying you can't answer them were declining to answer them i is not answering that the supreme court to make a ruling that all these questions then mob soley issues of law and not involved in better questions of fact and therefore are all subject to being answered by this court under the supreme court rule i would say yes you don't have the motion it so well know the motion itself was served on this court no it was not because it was directed against judge palmer that may have been a sporting record but the supreme court i can represent you had all the information that you have in terms of the supporting record in the arguments that were made supreme court such that issued the order it did if the supreme court thought that there were invented questions of fact that you couldn't answer i submit to you the supreme court would not have told this court to answer the questions and then there's the testimony of a member of the chicago police department who indicated that it is not our policy to issue like tickets except where the hasn't happened yet ok so what i ask you is that something we can disregard this is part of the decision on the merits that's what i mean i think you can disregard tell because what we have here is gassing mashallah behalf of himself and other similarly nancy testimony which is at pages forty two and fifty four of the supplemental supporting record the city says we do do this just and limited occasions when someone flees or we can't do it so this saturday don't they say what she what she said provision in the ordinance that controlling words that allows for this this mailing of the notice and therefore any time it's mailed out it's unsupported by any authority provided ye it you know why why is this an issue before i set off i mean if he could have changed his mind why isn't this review bought by the succeeding judge because  really all he said now did he also say that it's illegal under the souther scenario or was that not mcmahon not provided us the he said it was illegal you believe it's a decision on merits yes all right whether i think there's some merit to that hat on the merits when he's already been looted and if the person has lad the police it's still illegal for them position that really the certification is not an issue here it's really a question of whether or not these are decisions on the merits which would have prohibited the certification the class action statute the to the certification and the decision on the merits whatever that decision on the merits might mean we know what the certification ok that's the policy the kind that the policy by linking the ssue ok how all in this particular case were any rights of the class impaired by the decertification i can understand how the city's a liability might have been impaired by judge c bills order because it ostensibly could be argued that it deprived the city of some kind of a defense based on the flight of the cab driver or the impossibility of serving ok when the get driver speeds away and siebel said best what the statute says you've got two choices i don't know what you see bill didn't answer the question about what happens if the cab driver flees ok that's fine so the city in effect had of an argument that they had made that they ought to be able to may as an alternative remedy they ought to be able to mail the ticket when the cab driver takes off enough and fleets but that was one of the ability to give notice by mail they should have gone to the city council to have the workmen's changed to allow an affidavit to be filed to confirm that this is that a fleeing incident and therefore  we can't get personally server we can attach it to the vehicle and therefore we're we're merely now there's word for what his order did say is that he claimed the city's invitation to rewrite the statute and therefore they did and he takes off because he sees a passenger down a potential passenger down the street being totally oblivious as to what the intent of this other person without ticket booking is in our hands is about to do and is not sleeping at all is simply going to pick up a passenger i mean is that is baffling situation in my opinion no but in my opinion it's not just my opinion i think is a decision on the merits and whether it can be revisited later is a different issue because that's what we're here for as well as a definite it's a decision on the merits and of the class action statute this stroke of the four questions that are pending before is an end and of course i want you to give us some guidance from your perspective as to how we should answer them but their soul in a related that answering one pretty much leads to a certain path to answering the others which which of the questions do you find the one we should give most attention well the first one is that was the most important what is the definition of decision of the merits that in class actions often times the damages sought by each individual class member has diminished this and to the extent that you need a class to go forward and right or wrong or correct a situation that shouldn't you have to have a classification and it's known not unlike a studio cause of action sufficient to withstand a motion to dismiss and therefore once that's done you proceed to the  decision on the merits and with as i have set forth in the brief there is three or four decisions on the merits in this case i am going to give you a few minutes to respond thank you i thank you all in the room orders right ok what if we took the position the decision the merits this is a softball for you in the context of a class action statute is something that has to be decided within the context of the class action policy of the stay so that somebody would say really what decision on the merits means in the class action context is have the parties are you taking away from the pride you prejudicing the party in any way by  so that certain parties benefited from that statute of limitations ruling and certain parties were were injured by right now you decertify the parties who were the party says that they had a right under the class action right because section two eight zero she to be says that you can decertify at you can certify excuse me as to particular issues and case and not others and so that all of the issues in this case that were appropriate for a class doesn't that say something about how the classification status should be interpreted because now now really three all six allows for an appeal of that very certification decision immediately so that you can resolve it if it's sad if that is what really three or six does why does why should we say that the certification that occurred in this case  which the decision on the merits does not reach i think i understand that the question i was going to ask a moment ago has to do with the statement you make of page fifteen of your brief and this has to do with this the  decision on the merits well now wait a while you don't say to a case where that might don't buy the reason i understand why you have well bred how can it be both a decision on the merits for some claims and then not a decision on the merits for other claims and if the entire theory or leak so how does how does a ruling out certain allegations benefit the plaintiff to the extent that he stands in a better position than he did otherwise in this case certainly the  could not reach i'm trying to take a hypothetical that could be the case in a classic race to the predicates with their with the you know the parties the parties were identical in a previous decision some decision was made with respect to their respective rights of the parties never appealed what the final judgment and now there is a certification question coming up involving the same parties and subsequent litigation that would be a tru decision on the merits would you because the trial judge who's decertifying could not reach in any way to modify that other or could we rate the opinion that would confine it that we could find five last he said was that basically you don't have to have a decision on the merits and a final decision on the merits and we don't see that we think there are neither  here now often times they will be the same which is where we're at in the confusion from that oftentimes a decision on the merits will also be a final judgment that's a good direction but let me ask you this question what more that a taxi driver i have received a fine ticket such that the city is liable to a point that have its merits he'd have to go to an individual assertion personal service or the or service on the test you have was required under the statute oh didn't he essentially decide that for every violation where the person flees the city  t serve in the method of he decided that the good question but that is not the same thing as finding that the city is liable and here's why ok suggest say is if i may which you really suggested this transforming the decision on the merits to the final just because you're asking for that little bit more it would transform this into a final judgment when the statu and everyone seems to agree that this is less than i've got i think here's the difference between final judgement decision on the merits in the context of that ruling if they were finding of liability and truly this weren't just a question of how  damages are that finding of liability would be a decision on the merits ok but it would be final yet because you know we need to figure out how much is at issue in each ticket before it would terminate the litigation that is not a this is well that would be a final decision there would be nothing left to decide on those claims however right now yes the decision on the stand out limitations mine and i just want to you just tell me what's left on me because i can tell you the way the supreme court has has has figured this out and downey has explained i mean there's two parts to what is a decision on the merits side the rights and i believe the parties and on the ultimate facts in this case within the context of these tickets probably recite it in your sleep but i want to ask you a question about whether there's a clue to unlocking and i'm backing this with respect to question one says nothing about subsequent judge pryor judge anything like that ok it's just a ball question what is the decision on the merits but then it goes to war other question why do we need those four other questions if we can answer one well i think that's interesting since we both out as the fact of the subsequent is that there were two judges involved make a difference because in two of the remaining three questions it was a subsequent judge who changed the world for a question to all prior judges really question three of prior judges ruling ok and then finally we get no prior judge but this question wasn't me i know i know it wasn't and then the supreme court read it and signed off on ok but is that if we have sued the first question should consider extensively before we answer these questions i think it i would say that would be the purpose of this sort of including the decision on the merits of argument in the certification which i think was the last he said so i don't you know i to how much like does it really ship there was a jury verdict of a class in that particular well i think for how many millions of dollars i think that's at several months and then the judge after the meeting was over before they can't impact the litigation to come in a practical way that class certification is supposed to and if that's the policy here we're looking for it as i said this is the certification moving forward and everything that is  decision to the respective rights and liabilities are these based on the ultimate facts or state of facts disclosed by the pleadings or evidence or do you agree that yet here we've never really gotten to those ultimate determine whether let's just talk about that first name to play to that is let's just use that one right representing the class in this case that determination your position is that that has never been decided plaintiff representing this group has ever been granted a decision on the merits because it is never been shown that he would get whatever amount of money it would be based on the you know the  offense if we would call it that the right heard when he was given a second asian away from his view that has not been proven decided that he received a flying ticket that he paid it  did get something hits in the record whether he enjoyed siebel said and the city's admitted you just heard it and it's in their pleadings as i've quoted before they do issue these things so it's not a question of do they do it or not they do and judge se tory checks ok said that supposed to guide the parties in the future with respect to their various rights and liabilities but not the side you still have the usual whether or not members of the class or the class as a whole can any determinations as to whether they can prove no he did not but again he doesn't need to because our position is you're now you're making the test the final judge and i understand and i would also add none of this discussion addresses the fact that  essentially entered judgment in our favor and the city's affirmative defenses which i think even the city would concede as implicitly conceded is a decision on the merits and it's a final one that ok i thank you very much thank you this will be taken under five