[00:00:01] Speaker 00:
good morning your honors and may it please the court i'm very happy to be here today in pasadena and if the court doesn't have any questions at this time i would asked to proceed go ahead thank you very much

[00:00:16] Speaker 00:
This case involves parents who've lost custody of their children and they've lost custody in family court, a court which has completely abandoned and abrogated the Constitution.

[00:00:29] Speaker 04:
Why can't your clients simply appeal in the state courts?

[00:00:33] Speaker 00:
I suppose they could do that.

[00:00:34] Speaker 04:
That's the normal way of dealing with constitutional errors or asserted constitutional errors.

[00:00:40] Speaker 04:
What you're trying seems extraordinary.

[00:00:42] Speaker 00:
Well, I would add that in my experience, the California Court of Appeals has very much the same tack as the family court in that they completely, they're just not responsive to constitutional arguments.

[00:00:56] Speaker 00:
And what about the California Supreme Court or the U.S.

[00:00:58] Speaker 00:
Supreme Court?

[00:00:59] Speaker 00:
well the US Supreme Court I well that's the odds of getting hurt are so much less I suppose that would be an avenue although the normal course when you think your rights have been violated by a trial court's order

[00:01:13] Speaker 00:
Yes, and I would agree with Your Honor, but I think the problem is so systemic that if one person were to appeal, we want to change the policy.

[00:01:23] Speaker 04:
Would you agree, Mr. Phillips, that all of the injuries alleged by your clients were inflicted by these state court judgments and orders?

[00:01:30] Speaker 00:
Well, I wouldn't characterize them as judgments.

[00:01:33] Speaker 00:
They are temporary orders, but in a civil case, when there's a wrongdoing and there's a judgment that's decided upon, it's decided whether or not a wrongdoing was committed in a typical civil judgment, like in a construction defect case.

[00:01:51] Speaker 00:
But it's always temporary when it comes to custody.

[00:01:54] Speaker 00:
Sure, but even custody orders that are temporary are appealable immediately, correct?

[00:01:59] Speaker 00:
I know that temporary orders are not appealable.

[00:02:03] Speaker 01:
Counsel, I have a different question, if I may, and that is, as I understand it, the Chief Justice is being sued in her official capacity as the head of the Judicial Council for alleged failure to train other judges.

[00:02:23] Speaker 01:
Why isn't she not a person within the meaning of Section 1983?

[00:02:30] Speaker 01:
Because the Judicial Council is an arm of the State of California.

[00:02:34] Speaker 00:
Well, it's our position.

[00:02:36] Speaker 00:
We wanted to sue the policymakers for the current policy that's allowed the Constitution to be abandoned and not a specific act of a judicial act.

[00:02:48] Speaker 00:
I don't know if Your Honor's question was going towards immunity.

[00:02:51] Speaker 01:
It is going towards immunity, exactly so.

[00:02:54] Speaker 01:
So why isn't that fatal to your claim?

[00:03:00] Speaker 00:
Well, because there's no judicial act in question, and it's really not the Chief Justice we're suing.

[00:03:09] Speaker 00:
We're suing the Council as the prosecutor.

[00:03:11] Speaker 00:
Correct.

[00:03:11] Speaker 01:
And the Council is an arm of the State of California entitled to sovereign immunity.

[00:03:16] Speaker 00:
Well, we believe that there's a different result under Hess, the 1994 Supreme Court case of Hess, which says that if a state agency is financially independent, meaning if they raise their own revenue and pay their own debts, then they're taken outside of the scope of immunity because they're considered independent of that.

[00:03:38] Speaker 00:
And so that's the argument under Hess, and all the cases on which our opponents rely conspicuously fail to mention.

[00:03:46] Speaker 02:
Well, didn't we say in Cohen that the Treasury element is only one part of it, but there's the dignity element for the state that we don't infringe on their dignity?

[00:03:55] Speaker 02:
And wouldn't suing the state be considered infringement on their dignity?

[00:04:00] Speaker 00:
Well, I think it could be seen that way, but the reason I don't see it that way is because

[00:04:07] Speaker 00:
Well, I think there's a larger issue.

[00:04:08] Speaker 00:
What happens when an entire, what if the state of California, state court system, just said no more Constitution?

[00:04:16] Speaker 00:
Where would a litigant run to bring the Constitution back?

[00:04:20] Speaker 04:
How about the Supreme Court?

[00:04:22] Speaker 00:
Well, Supreme Court may be a revenue, but, avenue rather, but it's,

[00:04:27] Speaker 04:
Let me try it at a little different angle.

[00:04:29] Speaker 04:
Suppose we affirm here, and you think we've got it wrong, let's say whether it's Rooker Feldman or 1983 doctrines or whatever, do you think you could file suit for damages or an injunction against the Federal Judicial Center and its board and its chair, Chief Justice Roberts?

[00:04:50] Speaker 00:
No, I don't believe so.

[00:04:52] Speaker 00:
Because I believe that there would be immunity for the decision.

[00:04:56] Speaker 00:
It's a judicial act if the court rules against us.

[00:04:59] Speaker 04:
No, no, no.

[00:04:59] Speaker 04:
Not suing us, not suing the Ninth Circuit judges who were deciding the case, but the Federal Judicial Center trains federal judges.

[00:05:12] Speaker 00:
like the state council uh... well i was saying no because uh... i i just don't think that there would be latitude to do that unless there's a policy i agree but i don't see the difference between this case and uh... and that hypothetical well i think the difference is that uh...

[00:05:30] Speaker 00:
that uh... well i don't know if has the has case would apply to the federal judiciary it would not but uh... i believe that it has applied to state agencies before to take the state agency outside the scope of eleventh amendment immunity you're relying on the test that focuses only on an independent fiscal existence right yes which the ninth circuit is rejected

[00:05:58] Speaker 04:
Well, I would add, if I could... If we issued the injunction, or if the district court issued an injunction that you've requested against the State Judicial Council, saying train trial judges differently, how would that change your client's lives?

[00:06:13] Speaker 00:
Well, hopefully it would change for the better of everybody in California.

[00:06:18] Speaker 00:
And... How?

[00:06:19] Speaker 04:
Well, because they would have the benefits and protections of... It would be by the individual decisions of individual judges in individual cases, correct?

[00:06:28] Speaker 00:
Yes.

[00:06:29] Speaker 04:
And the harms that you're suffering are being inflicted, allegedly, by those same sorts of orders.

[00:06:37] Speaker 04:
Individual decisions, individual cases, individual judges, right?

[00:06:41] Speaker 04:
Well, yes.

[00:06:42] Speaker 04:
So again, what's the mechanism for remedying the alleged harms by an injunction?

[00:06:52] Speaker 00:
Well, we believe that, well, if the injunction is granted, we believe it would change the landscape for everybody and would also benefit these parents because family court cases go on until the youngest child is 18.

[00:07:06] Speaker 00:
So presumably, they would be benefited in the long run, except for those parents who have children.

[00:07:13] Speaker 04:
But assuming that the judges follow their training.

[00:07:17] Speaker 00:
Yes.

[00:07:19] Speaker 00:
And I would also add in the Cone case, the Cone case is conspicuously silent about Hess as well.

[00:07:25] Speaker 00:
And it seems like every time the Ninth Circuit rules on the 11th Amendment immunity, they completely ignore the words of Justice Ginsburg in the Hess case.

[00:07:37] Speaker 00:
And the Supreme Court ruling in Hess, we believe, is respectfully paramount to the Ninth Circuit decisions that hold to the contrary.

[00:07:47] Speaker 03:
attempted to interpret hasson income but uh... do you want to reserve some time for rebuttal yes i would please thank you your honors morning may please the court uh... matthew green on behalf of uh... chief justice guero uh... i think it's just a little hamilton indicated here is extraordinary what uh...

[00:08:16] Speaker 03:
The appellants are attempting to do, they're attempting to hold the Chief Justice responsible for allegedly erroneous child custody orders.

[00:08:23] Speaker 03:
The clear remedy in this instance for appellants is to seek appellate review.

[00:08:29] Speaker 03:
Appellate review is available, child custody orders, including temporary orders, whether it's by writ relief or by filing appeal.

[00:08:37] Speaker 03:
That is the normal course.

[00:08:38] Speaker 03:
That is the process.

[00:08:41] Speaker 04:
I'm from Indiana.

[00:08:42] Speaker 04:
I'm the visitor here.

[00:08:43] Speaker 04:
Okay.

[00:08:43] Speaker 04:
Can you fill me in a little bit on where to look in California law on that appeal ability of temporary custody orders?

[00:08:49] Speaker 03:
I don't have a site for you, unfortunately, but it would be under the family code.

[00:08:53] Speaker 03:
But for instances where there isn't an immediate right of appeal, there is writ relief available.

[00:09:00] Speaker 03:
Similar to coming to this court, writ relief is available.

[00:09:02] Speaker 03:
So if there is an emergency need, an urgency, irreparable harm, those sorts of things that can be shown, an aggrieved family court litigant can seek writ relief in the California Court of Appeal.

[00:09:16] Speaker 03:
So there absolutely is an avenue.

[00:09:18] Speaker 03:
And ultimately, when a child custody order becomes final, there is absolutely a right of appeal in that instance.

[00:09:24] Speaker 03:
And that is the proper course.

[00:09:26] Speaker 01:
Could I?

[00:09:27] Speaker 01:
Oh, I'm sorry.

[00:09:27] Speaker 04:
Go ahead.

[00:09:28] Speaker 04:
No child custody order is ever really final, right?

[00:09:31] Speaker 04:
In the sense that it's always subject to modification.

[00:09:34] Speaker 03:
Correct.

[00:09:35] Speaker 03:
But writ relief still remains available.

[00:09:39] Speaker 01:
I was just going to ask you if, in your view, Wolf remains good law after Cohn.

[00:09:47] Speaker 01:
in the holding that there's immunity for the Judicial Council.

[00:09:55] Speaker 03:
Absolutely.

[00:09:56] Speaker 03:
I think this Court

[00:09:58] Speaker 03:
uh... ruled appropriately twenty one years ago in wolf versus strengthman uh... the judicial council uh... clearly they directed administered additional branch of government in california they're clearly a state agency as uh... the court in wolf held uh... cohen excuse me cone uh... two years ago did modify the test for eleventh amendment in union determining whether an entity is

[00:10:24] Speaker 03:
uh... the state agency it uh... as just as he's just been today uh... indicated castles absolutely address incone uh... the factors identified incone intent control uh... the the financial relationship between any state those all clearly support the conclusion that judicial council is a state agency uh... so it today if the court does apply cone

[00:10:53] Speaker 03:
the Judicial Council is clearly still a state agency, as it was 20 years ago.

[00:11:00] Speaker 02:
Can I ask, this doesn't seem to be a textbook case for the Rooker Feldman, because as I see the relief, it's not overturning the child custody decision, but it's for training.

[00:11:12] Speaker 02:
So doesn't this take it out of Rooker Feldman?

[00:11:16] Speaker 03:
Well, I think there is an argument that Rooker-Feldman does apply because the underlying harm here is the allegedly erroneous child custody orders.

[00:11:24] Speaker 03:
And what's happening here really is an end run around of, you know, rather than couching a direct attack on a judgment,

[00:11:33] Speaker 03:
It's an end run around that to go to the Chief Justice and try to hold her and the judicial counsel responsible for these orders.

[00:11:39] Speaker 02:
It might be an end run, but it might take it out of Rooker-Feldman, though.

[00:11:43] Speaker 03:
It may.

[00:11:44] Speaker 03:
I still do construe it as being an attack on the child custody orders, and I do see the fact that they are seeking damages here based on the alleged deprivation of appellants and their children.

[00:11:55] Speaker 02:
So that might be part of Rooker-Feldman, but the injunctive relief might be taken out.

[00:12:00] Speaker 03:
Well, I think that...

[00:12:03] Speaker 03:
I think there's still the argument that it does apply.

[00:12:06] Speaker 03:
I understand.

[00:12:08] Speaker 04:
If it does, if Rucker-Feldman does not apply to the injunctive relief, then you've got the problem of redressability that I was asking a colleague about.

[00:12:18] Speaker 04:
That is, how does an injunction against the Judicial Council do anything for these plaintiffs?

[00:12:27] Speaker 03:
Well, I agree with that.

[00:12:29] Speaker 03:
I think it sort of goes back to, I mean, typically in Rooker-Feldman, you have a final judgment.

[00:12:33] Speaker 03:
And so there's then a collateral attack going to federal court.

[00:12:36] Speaker 03:
But here, I think, as you're alluding to, there's still the ability to seek redress in the Court of Appeal and for directly for these plaintiffs to seek redress in whether it's reestablishing their custody rights or whatever the case may be.

[00:12:51] Speaker 04:
Rooker-Feldman can apply to interlocutory judgments that are appealable.

[00:12:57] Speaker 03:
Yes, this court has held that that is the case.

[00:13:01] Speaker 03:
So I think that you've got the issues here of the extraordinary relief that's being sought here trying to hold the chief justice responsible for erroneous, allegedly erroneous child custody orders, which is not available.

[00:13:14] Speaker 03:
There is no section 1983 relief for that.

[00:13:17] Speaker 03:
Judicial counsel is clearly a state agency.

[00:13:21] Speaker 03:
It is not a person under Section 1983.

[00:13:22] Speaker 03:
It is also protected by 11th Amendment immunity.

[00:13:28] Speaker 04:
Green, I've got a federal court's quiz for you here.

[00:13:31] Speaker 04:
Is there a number of different issues that we could potentially use to address this case?

[00:13:39] Speaker 04:
Is there a sequence that you think we should follow?

[00:13:43] Speaker 03:
I think probably as I've outlined in my briefing, I think primarily judicial counsel is not a person under Section 1983.

[00:13:52] Speaker 03:
Tied to that is also 11th Amendment immunity.

[00:13:54] Speaker 03:
And from there, I think the other issue that's significant here,

[00:13:59] Speaker 03:
is the failure to state a claim on the failure to train theory is that, again, the proper course here is seeking relief.

[00:14:10] Speaker 03:
There also, this is a supervisory liability

[00:14:14] Speaker 02:
Can I ask if we reach the sovereign immunity question, why would we have to reach to the person question under 1983?

[00:14:21] Speaker 03:
You wouldn't.

[00:14:22] Speaker 03:
That would end.

[00:14:23] Speaker 03:
If there's no immunity, that's the end.

[00:14:24] Speaker 03:
Excuse me, if 11th Amendment applies, there is no other ground need be addressed.

[00:14:30] Speaker 02:
I think we have some case law that suggests that sovereign immunity challenges are threshold questions.

[00:14:35] Speaker 03:
That's whatever that means, but it would resolve the case and you would not reach any other issues.

[00:14:39] Speaker 03:
So I think the love of them unit immunity and whether state agencies not being a person under 1983 or kind of connected issues.

[00:14:48] Speaker 03:
They are independent.

[00:14:49] Speaker 03:
So theoretically you could address the 11th amendment.

[00:14:52] Speaker 03:
Those are both waivable though, aren't they?

[00:14:54] Speaker 04:
You haven't waived them, but the 11th amendment.

[00:14:57] Speaker 03:
Absolutely.

[00:14:58] Speaker 03:
It could be waived if we didn't raise it.

[00:15:01] Speaker 03:
If the state court case gets removed to federal court by a state agency, the state agency's waived it, but it has not been waived here.

[00:15:10] Speaker 03:
It was asserted on a motion dismissed.

[00:15:12] Speaker 04:
I'm just trying to distinguish between waivable and non-waivable subject matter jurisdiction, but that's the federal court quiz.

[00:15:19] Speaker 03:
Right.

[00:15:20] Speaker 03:
I think in the 11th Amendment, in the instance where it was waived, which is not the case here,

[00:15:25] Speaker 03:
there still would be the issue of state agency not being a person in 1983.

[00:15:29] Speaker 03:
I think that would still be a problem and an impediment to suing a state agency in federal court.

[00:15:34] Speaker 03:
Unless your honors have any more questions, I will conclude.

[00:15:39] Speaker 02:
Thank you very much.

[00:15:41] Speaker 00:
Thank you, counsel.

[00:15:45] Speaker 00:
I did want to say again that the plaintiffs in this case are not challenging any specific judicial acts, but rather a policy which has led to the abrogation of the Constitution in the state's largest court system.

[00:16:00] Speaker 00:
Writ relief is available, but again, my understanding is that there is no revenue to appeal a temporary order.

[00:16:09] Speaker 00:
and the temporary orders is generally how family court takes away children is via temporary orders.

[00:16:17] Speaker 00:
Turning your honor's attention to the Wolf case, the Wolf case never cites Hess versus Port authority.

[00:16:25] Speaker 00:
It never mentions the word state treasury criterion and it never mentions financial independence test.

[00:16:33] Speaker 00:
And I also looked at the Cone case today, and I did a word search, Control-F, and the term HES never appears.

[00:16:44] Speaker 01:
That is incorrect.

[00:16:45] Speaker 01:
As I read the case, it is discussed.

[00:16:48] Speaker 02:
The Treasury factor, I mean, we might not have cited HES by name, but it's been cited many different times by the Supreme Court, and it's definitely addressed in Cone.

[00:16:58] Speaker 02:
OK.

[00:17:00] Speaker 00:
And um.

[00:17:00] Speaker 02:
It was in the Senate in Cone, but I mean, I still think they got that part right.

[00:17:04] Speaker 00:
Thank you, Your Honor.

[00:17:06] Speaker 00:
And as to the Rooker Feldman, again, this is not a final state court judgment that we would see in a civil action where the wrongdoing is either found to have happened or the wrongdoing is not found to have happened.

[00:17:19] Speaker 00:
But rather, the whole idea of custody is a somewhat fluid concept as the children are bandied back and forth between the parents.

[00:17:28] Speaker 00:
And if an injunction were granted, I believe that the parents whose children have not aged out, the plaintiffs in this case, they would still benefit directly from it.

[00:17:40] Speaker 00:
And... Can you point us to any... I'm sorry.

[00:17:44] Speaker 01:
Go ahead.

[00:17:45] Speaker 01:
I was going to say, wouldn't they benefit, if at all, only indirectly?

[00:17:48] Speaker 01:
Because what you're asking for is training and not specifically overturning any particular order.

[00:17:58] Speaker 00:
Well, I think that's true.

[00:17:59] Speaker 00:
Yes, I believe the training would benefit them, though.

[00:18:02] Speaker 00:
I think that would.

[00:18:04] Speaker 04:
Can you point us to any precedent in which a federal court has issued an injunction to state courts telling them how to interpret the law?

[00:18:13] Speaker 04:
In essence, giving them a lecture?

[00:18:15] Speaker 00:
Well, not necessarily.

[00:18:16] Speaker 00:
Well, we're looking not necessarily to the courts, but the policymakers, if to the extent that's an important... A precedent for that?

[00:18:24] Speaker 04:
uh... well i know that there's uh... i've seen many lawsuits with law enforcement when law enforcement officers have to be trained on fourth amendment about the courts federal courts treating state courts as junior partners or students talking about the dignity of the states and i'm just wondering if you have can direct us to any precedent for comparable treatment of the state courts by federal courts no i have no precedent on that your honor

[00:18:53] Speaker 02:
Okay, you're over time.

[00:18:54] Speaker 02:
Anything you can wrap up?

[00:18:56] Speaker 02:
Okay, thank you very much.

[00:18:56] Speaker 02:
This case is submitted.