[00:00:00] Speaker 04: This is Villa Cana. [00:00:01] Speaker 04: And counsel, when you're ready, proceed. [00:00:03] Speaker 04: You may. [00:00:10] Speaker 03: Thank you, Judge Owens, and may it please the court. [00:00:13] Speaker 03: Patrick Fooster on behalf of plaintiff appellant Shane Love. [00:00:17] Speaker 03: The due process clause protects parent-child relationships from unwarranted state interference. [00:00:22] Speaker 03: The only dispute here is how a federal court knows whether a parent-child relationship exists. [00:00:29] Speaker 03: And the answer, based on every decision of the Supreme Court and this court to address the issue for a wide range of federal claims, is that federal courts look to state family law. [00:00:40] Speaker 03: Once state law creates a parent-child relationship, the state can't then arbitrarily interfere with that relationship, including by killing the parent in a manner that shocks the conscience. [00:00:51] Speaker 03: The city reaches the wrong result because it applies the wrong test. [00:00:56] Speaker 03: It overlooks, and you can see this in this 28-J letter, that we can plead and prove a due process violation based on conscious shocking interference with our liberty interests, not only through the fundamental rights framework of Glucksburg. [00:01:11] Speaker 03: And although the city critiques our reliance on state law, in reality its test is just as dependent on state law. [00:01:19] Speaker 03: in conceding that marriage, adoption, and guardianship, all state law relationships can establish a protected liberty interest. [00:01:28] Speaker 00: Well, you're probably right, but the thing that concerns me is [00:01:35] Speaker 00: is how you actually apply that rule. [00:01:42] Speaker 00: The question I have that isn't it well established that both the Supreme Court and our court are extremely hesitant to expand the substantive due process rights. [00:01:58] Speaker 00: Don't we have to bear that in mind? [00:02:00] Speaker 03: Yes, you do, Your Honor, and I am not asking for an expansion of substantive due process rights in any respect. [00:02:07] Speaker 03: I'm invoking this court's long-standing precedent, which recognizes that parents and children share a liberty interest in their custodial relationships and that when the police kill either a parent or a child in a conscious, shocking manner, that violates the due process. [00:02:21] Speaker 00: Are you saying you could distinguish those cases and that they don't apply at all? [00:02:25] Speaker 03: No, no, your honor. [00:02:26] Speaker 03: I'm saying that we fall squarely within those cases because Mr. Thomas was Mr. Love's father under state law. [00:02:33] Speaker 03: He had full parental rights, including custody, the obligation to provide support. [00:02:37] Speaker 03: So the only question is whether we're going to carve out a subset of parent-child relationships from existing precedent concerning the substantive due process rights. [00:02:46] Speaker 04: So let me ask you this. [00:02:47] Speaker 04: So a 28-J letter was filed about our Regino case. [00:02:51] Speaker 04: And I wrote – I read the case and I read both letters. [00:02:55] Speaker 04: I want to thank counsel for filing the 28J. [00:02:58] Speaker 04: But I had a different take from – I think from both sides, actually. [00:03:02] Speaker 04: My take is if I read Regino, I say, okay, Regino tells us that the district court should do the Glucksburg analysis. [00:03:10] Speaker 04: And there's a method for doing that. [00:03:12] Speaker 04: And the district court, as I read the order, did not do that in this case. [00:03:17] Speaker 04: If I'm right about that, the district court cited Glucksburg, certainly did not do the analysis that Regino prescribes. [00:03:23] Speaker 04: Now, in defense of the district court, the district court did not have Regino in front of it when the district court was making the decision. [00:03:30] Speaker 04: Shouldn't we just send this case back to the district court so it can do the Glucksburg analysis in the first instance the proper way and presumably with [00:03:40] Speaker 04: the very able counsel we have, hopefully let's hang around for district court proceedings, and litigate this case the way Regino says. [00:03:47] Speaker 04: Isn't that what we should be doing here? [00:03:50] Speaker 03: We should follow Regino, but this case falls within footnote five of Regino, which noted that this circuit and the Supreme Court have recognized two distinct ways to establish a violation of substantive due process. [00:04:02] Speaker 03: One is Glucksburg, which is typically addressed toward legislative action. [00:04:06] Speaker 03: And the claim is that the state has denied a fundamental liberty interest without which you cannot have ordered liberty. [00:04:12] Speaker 03: That's not this case. [00:04:13] Speaker 03: The second test is the shocks the conscious test that applies to executive action that interferes with liberty interests. [00:04:20] Speaker 03: County of Sacramento versus Lewis is the Supreme Court's decision that makes this precise distinction between challenges to legislative action and to executive action. [00:04:28] Speaker 03: And under that test, we do not have to show a fundamental interest in the sense of Luxburg that has been carefully described. [00:04:35] Speaker 03: We have to show only a liberty interest that has been taken away from us in a conscious shocking manner. [00:04:40] Speaker 03: That's exactly what this court didn't retain at page 992. [00:04:44] Speaker 03: look to state law visitation rights, treat it as a liberty interest, and then went on to the other two elements of the test, which are not in dispute here. [00:04:52] Speaker 03: Has there been a deprivation of that interest? [00:04:54] Speaker 03: Was it done in a manner that shocks the conscious? [00:04:57] Speaker 03: So no, Your Honor, I wouldn't ask for a remand under Glucksburg. [00:04:59] Speaker 03: I'm not going to fight too hard on anything that sends us back down to the district court, but it would be wrong to order for the district court to proceed only under Glucksburg when there is this separate test. [00:05:10] Speaker 04: So your argument, Dennis, is that even at Glucksburg, it had never been decided. [00:05:15] Speaker 04: You're saying just the old kind of the old, my words, the old school shocks the conscience test, that that would still govern here because you're saying we have to assume that the right here falls within that nut or that shell of rights, parental rights, correct? [00:05:30] Speaker 03: Yes, Your Honor. [00:05:31] Speaker 03: It's even better than if Glucksburg hadn't existed. [00:05:33] Speaker 03: This is the Supreme Court, the year after Glucksburg, addressing whether Glucksburg has now filled the field and is the only way to prove a substantive due process violation. [00:05:42] Speaker 03: That was the position taken by Justice Scalia in the concurrence. [00:05:45] Speaker 03: Justice Souter, writing for the majority of the court, said, no, we have this separate test that applies to executive action. [00:05:51] Speaker 03: And that makes sense. [00:05:52] Speaker 03: When you have executive action that is interfered with a state-created liberty interest or an interest that arises directly under the Constitution, [00:05:59] Speaker 03: there's no governmental interest in allowing conscious shocking interference to go forward. [00:06:03] Speaker 03: You don't have the same concerns about judicial lawmaking in the context of executive action interfering with existing substantive rights. [00:06:11] Speaker 04: But we have to then to follow what you're saying then we have to agree with you that the right existed to begin with, correct? [00:06:19] Speaker 03: Yes, Your Honor, and I'm happy to discuss where the right comes from and how we've established it on the plebiscite. [00:06:23] Speaker 04: But would Glaxburg help us decide whether that right existed in the first place? [00:06:29] Speaker 03: If there is a Gluxburg question in this case, it's whether parents and children share a liberty interest in their custodial arrangements. [00:06:35] Speaker 03: That's the oldest of the fundamental liberty interest that the Supreme Court has recognized going all the way back to Meyer. [00:06:41] Speaker 03: So if there is a Gluxburg question here, it's the what question. [00:06:44] Speaker 03: Is that protected? [00:06:45] Speaker 03: It's not the who question, which is, [00:06:47] Speaker 03: which parents who are recognized as such under state law are able to assert those rights, which children are able to assert those rights. [00:06:54] Speaker 03: And that's the Supreme Court at page 671 of Bergefell says that Glucksburg does not limit who can assert the rights, only limits the scope of those rights. [00:07:02] Speaker 04: But Jeff, and I want to give my colleagues opportunities to ask questions, but I just want to make sure I understand this. [00:07:06] Speaker 04: So if, under your view here, [00:07:09] Speaker 04: If a state, let's say the state of California, passed a law saying in police brutality cases, there are no damages unless the parent is biologically related to the child. [00:07:22] Speaker 04: Let's say under so-called tort reform, they pass a law that says that. [00:07:26] Speaker 04: You're saying that that law would be unconstitutional. [00:07:32] Speaker 03: I think California probably just as a matter of preemption could not prescribe the damages, which would be available. [00:07:38] Speaker 04: But I mean, well, but we looked at 93, we looked to stay all the time to decide. [00:07:42] Speaker 04: So, I mean, I think the answer to the question has to be yes. [00:07:44] Speaker 03: And I think the way you think about it is has California effectively said. [00:07:48] Speaker 03: We no longer recognize you as a parent, at least for this purpose, if you do not have a biological connection to the child. [00:07:55] Speaker 03: I think, yes, then we'd be in the world of Glucksburg. [00:07:57] Speaker 03: We'd be asking, has the state interfered with some traditional, carefully described right? [00:08:02] Speaker 03: Right. [00:08:03] Speaker 04: Okay. [00:08:03] Speaker 04: Thank you. [00:08:05] Speaker 03: But if I could quickly address first where I'm getting the test from why we're looking to state family law because I haven't pulled that out of out of thin air. [00:08:13] Speaker 03: It's been the Supreme Court standard approach. [00:08:18] Speaker 02: I'm sorry. [00:08:18] Speaker 02: Council, can you. [00:08:20] Speaker 02: I think you can hear me. [00:08:21] Speaker 02: I can hear you. [00:08:22] Speaker 02: We can hear you. [00:08:22] Speaker 02: Go ahead, Judge. [00:08:24] Speaker 02: Would you have would your client have had a Fourth Amendment excessive force claim here? [00:08:31] Speaker 03: No, Your Honor, because the Fourth Amendment would be the personal rights of Mr. Thomas. [00:08:36] Speaker 03: Here, the reason why Mr. Love is able to bring a claim is because he has his own personal right to his relationship with his father. [00:08:43] Speaker 02: What if state law conferred a survivorship right on a child? [00:08:51] Speaker 03: State law has conferred survivorship rights on people in this situation. [00:08:55] Speaker 03: That would be a different claim. [00:08:56] Speaker 03: Then we'd be looking at what were Mr. Thomas's claims and then have they passed by dissent to Mr. Love. [00:09:03] Speaker 03: But it's a separate question from whether Mr. Love has his own personal claim in this situation. [00:09:08] Speaker 02: But the availability of a more specific claim governed by more specific jurisprudence like the Fourth Amendment, would it not be a reason to avoid substantive due process [00:09:21] Speaker 02: As the claim. [00:09:23] Speaker 03: I understand the question judge fits water and this court address that particular issue and Smith versus city of Fontana which said that the more specific right applies only to the parent who personally possesses it what the parent would have a 4th amendment claim for excessive force and no substantive due process claim because the 4th amendment is the more specific provision that already governs that conduct. [00:09:44] Speaker 03: That Fourth Amendment does not govern the claim by the child who then proceeds under the due process clause. [00:09:50] Speaker 03: That's Smith versus City of Fontana. [00:09:55] Speaker 03: So briefly, why I'm looking to state family laws, because this is the standard approach the Supreme Court has taken across a wide range of claims, federal claims of all sorts. [00:10:06] Speaker 03: De Silva versus Ballanty in 1956 said, although the scope of a federal right is a question of federal law, it does not mean that it is not determined by state law. [00:10:16] Speaker 03: The Supreme Court reaffirmed that in Ashton versus Capato where the court said there is nothing anomalous about looking to state family law to apply the definition of child for a federal claim. [00:10:27] Speaker 03: Quite to the contrary, I think were the words of the court. [00:10:29] Speaker 03: This court took that exact approach for the specific provision here. [00:10:32] Speaker 03: California Family Code 7611 and Vernoff v. Astru. [00:10:37] Speaker 03: The city does not cite a single case coming out the other way where a court has said, even though you are a parent or a child under state law, we're still going to disregard that status for purposes of a federal claim. [00:10:47] Speaker 03: And we know from the Supreme Court's decision in Windsor, it might even violate the Constitution. [00:10:51] Speaker 03: When Congress tried to do that for marriage, the Supreme Court struck that down. [00:10:55] Speaker 03: I don't think federal courts are able to do that in the guise of applying the due process clause. [00:10:59] Speaker 03: The city seems to suggest that the holding out presumption is too easy to satisfy or novel. [00:11:06] Speaker 03: That's not true. [00:11:07] Speaker 03: Someone doesn't receive the child into the home or hold them out as their own by accident. [00:11:11] Speaker 03: It doesn't happen overnight. [00:11:12] Speaker 03: It doesn't happen without the participation of the mother, assuming the mother is still around. [00:11:17] Speaker 03: California is not an outlier in this respect. [00:11:20] Speaker 03: The holding up resumption is part of the Uniform Parentage Act. [00:11:23] Speaker 03: Eleven other states have adopted it by statute, including Texas. [00:11:27] Speaker 03: And the historical roots of this provision go all the way back to the reconstruction era in California as a form of adoption, which even the city says would satisfy its test. [00:11:36] Speaker 03: And if the city is willing to accept every other aspect of state parentage law, except this one, I don't see any basis for drawing a line between our situation and the other ones that they've included. [00:11:46] Speaker 03: Uh, the final and third point is that we've also alleged liberty interests under the federal association, right? [00:11:52] Speaker 03: That looks to many of the same considerations has the parent made an enduring assumption. [00:11:58] Speaker 03: It has made enduring commitment to assume parental responsibility, even when not required to do so by state law. [00:12:04] Speaker 03: This California family law looks to the same considerations in assigning parental rights in the first instance, and it should give this court comfort that both the federal cases and the state statute are pointing in the same direction. [00:12:16] Speaker 03: We've established a liberty interest in our client's relationship with his father. [00:12:20] Speaker 03: I'll reserve the remainder of my time without no further questions. [00:12:22] Speaker 04: Very well, thank you. [00:12:37] Speaker 01: good morning and may i please the court my name is stephen love and i'm here on behalf of the account at all and i want to begin by clarifying a uh... mischaracterization of the test uh... that plaintiffs council offered the shocks the conscience test [00:12:54] Speaker 01: is not a substitute for showing infringement of a fundamental liberty interest. [00:13:01] Speaker 01: The very case plaintiff relies on for the contrary proposition demonstrates why this is the case. [00:13:07] Speaker 01: This is the Bretain v. Hanson case. [00:13:11] Speaker 01: The court's analysis there begins by saying substantive due process is ordinarily reserved for those rights that are fundamental. [00:13:24] Speaker 01: The court then says, retain the plaintiff must show, number one, a deprivation of her liberty. [00:13:31] Speaker 01: Number two, conscience-shocking behavior. [00:13:35] Speaker 01: At step one, where the court analyzes visitation rights, roughly as plaintiff has described, the court then says, repeats the idea that substantive due process vindicates [00:13:46] Speaker 01: those interests which are fundamental. [00:13:50] Speaker 01: And when the court concludes that section of its analysis, the court says, regardless whether visitation rights, the rights at issue, may be a fundamental liberty interest, such that you could support substantive due process claim, we do not believe a single instance of visitation is a fundamental right, is a fundamental right. [00:14:10] Speaker 01: So again, even in a case like Britain, [00:14:13] Speaker 01: applying the Shocks the Conscience test exactly as plaintiff characterizes it, the test is not a replacement. [00:14:21] Speaker 01: Plaintiff had to show fundamental liberty interest infringement as well as conscience shocking behavior. [00:14:26] Speaker 01: There's a footnote in the Supreme Court case, plaintiff's counsel cited, County of Sacramento v. Lewis. [00:14:33] Speaker 00: Which Supreme Court? [00:14:35] Speaker 01: That would be County of Sacramento v. Lewis, U.S. [00:14:38] Speaker 01: Supreme Court, the 1998 decision, which has a lengthy analysis of the Shocks the Conscience standard. [00:14:46] Speaker 01: Footnote 8 there addresses a concern raised by Justice Scalia in dissent. [00:14:52] Speaker 01: Footnote 8 from the majority decision says, actually, [00:14:57] Speaker 01: There are shocks. [00:14:58] Speaker 01: The conscience is not a replacement for showing a fundamental liberty interest rooted in history. [00:15:04] Speaker 01: I'm going to quote a little bit from that footnote from County of Sacramento, if I may, which shows that the antecedent question is conscience shocking behavior. [00:15:13] Speaker 01: If that is shown, the plaintiff then must show a liberty interest that is rooted in history. [00:15:19] Speaker 01: So this is from that footnote eight. [00:15:21] Speaker 01: A case challenging executive action on substantive due process grounds presents an issue antecedent [00:15:29] Speaker 01: to any question about the need for historical examples. [00:15:33] Speaker 01: That would be this rooted in history and tradition. [00:15:35] Speaker 01: The footnote goes on, only if the necessary condition of egregious behavior were satisfied, the condition of showing that first element, would there be the possibility of recognizing a substantive due process right? [00:15:52] Speaker 01: Only then might there be a debate [00:15:54] Speaker 01: about the sufficiency of historical examples of the right claimed or its recognition in other ways. [00:16:02] Speaker 01: So that footnote, plus Bretain, which expressly and repeatedly uses the phrase fundamental liberty interest, makes clear that showing conscience-shocking behavior does not relieve a plaintiff asserting a substantive due process claim of showing that the liberty interest was fundamental. [00:16:24] Speaker 01: So this brings us right back to Glucksburg, where Plaintiff has not even attempted to show what he must. [00:16:31] Speaker 01: This is a careful description of the asserted fundamental liberty interest, issuing sweeping generalizations. [00:16:40] Speaker 01: You can't just lump together every relationship that might fall under the umbrella parent-child. [00:16:47] Speaker 01: Instead, I'm going to quote again from Regino, [00:16:50] Speaker 01: The interest asserted is objectively, deeply rooted in this nation's history and tradition, implicit in the concept of ordered liberty. [00:17:00] Speaker 01: These are the most fundamental rights that our nation recognizes that these claims are reserved for. [00:17:08] Speaker 01: and the court goes on to caution in Regino, this court should exercise the utmost care before breaking new ground in this area of unenumerated fundamental rights. [00:17:20] Speaker 00: Well, it is a difficult area. [00:17:25] Speaker 00: There's no question about it, but somebody's going to decide where. [00:17:28] Speaker 00: And that's the concern I have. [00:17:32] Speaker 00: We have a lot of cases that have been decided by the Supreme Court, and we're of course going to follow them. [00:17:39] Speaker 00: And if we have cases that are, we will follow them. [00:17:42] Speaker 00: But is an adoption governed by state law? [00:17:46] Speaker 00: And if courts are found to be adoptive parent-children relationships, wouldn't they be protected under the Due Process Clause even though they are state law issues? [00:18:01] Speaker 01: Potentially, I can see that. [00:18:03] Speaker 01: What I have actually not seen in any case cited in the briefing here is a decision of this court or the US Supreme Court holding that an adoptive parent has a fundamental liberty interest in the parent-child relationship. [00:18:21] Speaker 01: That decision has not yet been made. [00:18:24] Speaker 00: Well, maybe it should be made. [00:18:25] Speaker 00: Maybe we should send the case back to the trial court. [00:18:32] Speaker 01: That would be a different case from this one because Mr. Thomas was not the adoptive parent of Mr. Love. [00:18:39] Speaker 01: That case does not exist. [00:18:40] Speaker 01: It's not this one. [00:18:41] Speaker 00: Well, it's not an adoptive parent. [00:18:44] Speaker 00: It's a symbol of an adoptive parent that the state has been working with. [00:18:52] Speaker 00: It used to be in my young life why people live in a certain way when they're married or not married. [00:19:01] Speaker 00: And now we have to develop some law that's not specific, but it governs situations that happen [00:19:11] Speaker 00: quite often in the state of California. [00:19:15] Speaker 00: So why should we not return this to the trial court to make some findings and decisions on the strength of the state law and where that would apply? [00:19:33] Speaker 01: Uh, remand would not be necessary for two reasons. [00:19:38] Speaker 01: First, for the reason I explained, there's no history and tradition of recognizing this form of relationship. [00:19:45] Speaker 01: It's a relationship, to be clear, where the California statute [00:19:51] Speaker 01: defines any relationship between an adult and any child that adult has taken in and cared for and held out as their own. [00:19:59] Speaker 01: That's it. [00:20:00] Speaker 01: That's the sum total of requirements. [00:20:03] Speaker 00: And what case do you have where it says specifically that's the sum total, that there's no cases in any of the appellate courts of California that gives any legs to such an argument? [00:20:15] Speaker 01: I'm not drawing that from CASEL, I'm drawing that from the text of CAL Family Code 7611D itself. [00:20:23] Speaker 01: The requirements of it are going to apply whenever any adult has taken in a child and cared for that child and held them out as his own. [00:20:31] Speaker 01: That is an association requirement, but a series of cases from the U.S. [00:20:37] Speaker 01: Supreme Court and this court have held or suggested that you need association plus biology to show biological parenthood, to show the parent-child relationship. [00:20:50] Speaker 01: Never has something more broadly than that [00:20:53] Speaker 01: been held to create a fundamental liberty interest. [00:20:58] Speaker 01: And I expect plaintiff might come back and cite Michael H. V. Gerald D. [00:21:04] Speaker 01: The problem with that case is there was the parent plaintiff there was Michael H. and he was the biological parent who didn't have the necessary association and the Supreme Court there, U.S. [00:21:17] Speaker 01: Supreme Court held there's no fundamental liberty interest in his relationship with his daughter. [00:21:23] Speaker 01: His daughter lived with the biological mother and her new husband. [00:21:28] Speaker 01: Now that new husband's [00:21:30] Speaker 01: liberty interest in his relationship with the child was not at issue, was not a question before the court. [00:21:37] Speaker 01: So that court case does not show in either direction that a stepparent such as Gerald has that fundamental liberty interest. [00:21:45] Speaker 01: You might assume it or you might assume he doesn't, but it wasn't at issue in that case. [00:21:50] Speaker 01: There's a final point I want to make, and this is what exactly are the rights that section 7611D confers. [00:21:58] Speaker 01: They are procedural rights, procedural rights. [00:22:03] Speaker 01: Now this court has a very clear test when deciding whether a state law can support a due process claim. [00:22:13] Speaker 01: A procedural state law cannot do so. [00:22:16] Speaker 01: I'm going to quote from James V. Rowlands. [00:22:18] Speaker 01: This is the 2010 Ninth Circuit decision, but the test, I'm going to quote, repeats in a number of cases. [00:22:26] Speaker 01: There's two parts. [00:22:27] Speaker 01: The state law must contain substantive predicates governing official decision making [00:22:33] Speaker 01: and explicitly mandatory language specifying the outcome that must be reached if the substantive predicates are met. [00:22:43] Speaker 01: And it must be a substantive outcome to be reached. [00:22:47] Speaker 01: James V. Rowlands held that a statute requiring notice, requiring notice with mandatory language did not satisfy this test because notice is a procedural benefit. [00:23:01] Speaker 01: In contrast, when a state law has supported a due process claim, it has been, for example, a state statute saying, quote, an arrested person has the right to make at least three phone calls. [00:23:17] Speaker 01: That's Carlo v. City of Chino. [00:23:19] Speaker 01: That is a substantive entitlement the state law directly confers on certain people. [00:23:25] Speaker 01: or in Marsh V County of San Diego, there was a due process claim there that stood on a state statute. [00:23:32] Speaker 01: No copy shall be made of an autopsy picture. [00:23:37] Speaker 01: Those are substantive, mandatory limits on state action. [00:23:43] Speaker 01: 7611D is not that. [00:23:47] Speaker 01: It makes a promise, but it is a procedural promise. [00:23:50] Speaker 01: It promises a presumption [00:23:52] Speaker 01: a presumption that a person satisfying certain circumstances showing them gets the benefit of the presumption that they're the natural parent. [00:24:02] Speaker 01: But it is the nature of a presumption that it doesn't confer anything substantive directly. [00:24:09] Speaker 01: It comes into play only when a proceeding has occurred in which the presumption is relevant. [00:24:17] Speaker 01: So at the moment this incident occurred, neither Mr. Thomas nor Mr. Love derived any substantive benefit from 7611D. [00:24:28] Speaker 01: Now, it's important to analyze this at the moment of the incident. [00:24:32] Speaker 01: It's quite true, down the line, maybe some state court or the district court could go ahead and test that presumption. [00:24:40] Speaker 01: But if that were to occur, it would then be that later court action that would confer the substantive entitlement on Mr. Love. [00:24:51] Speaker 01: Until that has occurred, until the presumption [00:24:54] Speaker 01: has been called into the courtroom to play its role, there's nothing substantive that's been provided to Mr. Thomas or Mr. Love under the state statute the plaintiff cites. [00:25:07] Speaker 01: Procedural protections do not create due process claims. [00:25:12] Speaker 01: And I'll quote once more from James V. Rowlands, [00:25:16] Speaker 01: When a state establishes procedures, such as 7611D, the state does not thereby create a new constitutional right to those procedures. [00:25:27] Speaker 01: Another quote from James V. Rowlands, a state does not create new constitutional rights by enacting laws designed to protect existing [00:25:39] Speaker 01: constitutional rights. [00:25:41] Speaker 01: So even as plaintiff characterizes it, 7611D might be said to protect certain forms of parent-child relationship. [00:25:48] Speaker 01: Well, maybe that's the case. [00:25:51] Speaker 01: Under James V. Rowlands, that's not the kind of state law that can support any type of due process claim, no matter how fundamental or not a liberty interest must be shown. [00:26:06] Speaker 04: So to follow up with the questions I had for opposing counsel, I appreciate the 28-J letter. [00:26:12] Speaker 04: One reading of Regina is that this case should go back so it can do the Luxburg analysis, which did not happen. [00:26:19] Speaker 04: What's your response to that? [00:26:22] Speaker 01: I think that there's ample material here for this court to apply the Glucksburg analysis. [00:26:27] Speaker 01: This is a question of law. [00:26:29] Speaker 01: We're up here on a 12b6 dismissal. [00:26:32] Speaker 01: This court is just as well situated, if not better, being a court designed to apply the law to perform that analysis on this complaint. [00:26:42] Speaker 04: You don't think Regina requires us to send it back? [00:26:45] Speaker 01: I don't. [00:26:46] Speaker 01: And the other difference between Regino and this case is in Regino, the plaintiff kind of switched around what was the liberty interest they were asserting. [00:26:56] Speaker 01: Here, the plaintiff has been clear that he believes that the pleadings establish his case falls within this parent-child relationship line of cases. [00:27:07] Speaker 01: Well, this court can look at those cases for itself and apply them. [00:27:10] Speaker 01: There's no need to adjust for the shifting characterization of it. [00:27:15] Speaker 01: There's been a consistent characterization that is inadequate under binding case law. [00:27:22] Speaker 00: Sometimes when everything isn't clear before us and we find it was not clear before the district court, we choose to send it back because we don't know all of the ins and outs of what's going on in a state court. [00:27:42] Speaker 00: We're somewhat hesitant to tell them what their law is. [00:27:47] Speaker 00: This issue that you raise [00:27:52] Speaker 00: is very critical issues, how we treat a child [00:27:58] Speaker 00: who has someone who is not officially his father, but he believes he's his father. [00:28:06] Speaker 00: That's fundamentally a state issue. [00:28:09] Speaker 00: It's not procedural at all. [00:28:12] Speaker 00: And I feel somewhat undressed going ahead without having a court take a look specifically at this very important issue that you raised. [00:28:26] Speaker 00: I know we have [00:28:28] Speaker 00: We very often get our cases over into state courts, which they object very often. [00:28:38] Speaker 00: But having said that, this issue is a very fundamental one that will affect the lives of literally thousands of people. [00:28:48] Speaker 00: It is not just a simple case and caution sort of [00:28:54] Speaker 00: tells me we need more. [00:28:55] Speaker 00: Aside from following the suggestion made by my colleague, is there some other way that we can get the type of information that we could as a substitute for the trial court looking into it and perhaps taking even evidence? [00:29:15] Speaker 01: This court could issue an order for further briefing on some narrow topic or set of topics if that would assist the decision-making. [00:29:24] Speaker 01: That would be something short of remand. [00:29:26] Speaker 01: But looking back at that district court decision, I think it was [00:29:30] Speaker 01: grounded in the precedent that I and my opposing counselor are citing. [00:29:37] Speaker 01: I'm going to quote from one line there. [00:29:38] Speaker 01: Even if Thomas, the decedent, was plaintiff's presumed parent under California Family Code 7611D, he nonetheless lacks any biological or legal connection to Thomas and therefore has no protected liberty interest in their relationship. [00:29:55] Speaker 01: That's applying settled due process precedent. [00:29:58] Speaker 01: to reach that result. [00:29:59] Speaker 01: I don't see any issue in that analysis. [00:30:02] Speaker 01: Even if the court didn't cite Glucksburg in particular, it applied the correct test. [00:30:08] Speaker 01: If there's any further questions, I'm happy to take them. [00:30:10] Speaker 01: Otherwise, I'll step down. [00:30:12] Speaker 04: Thank you. [00:30:12] Speaker 04: Thank you, counsel. [00:30:18] Speaker 03: Thank you have three points first I heard the city's test unravel at the lectern today they have said since day one that adoption marriage and guardianship can all establish a protected interest. [00:30:31] Speaker 03: I heard today that adoptive parents and adoptive children might no longer have constitutional rights. [00:30:36] Speaker 03: that parents who establish parentage under the marital presumption, which is the historical common law presumption, might also not have constitutional rights. [00:30:45] Speaker 03: And I heard that there wasn't a case saying that, and I do have one here. [00:30:49] Speaker 03: It says Smith versus Offer for the Supreme Court, which said, biological relationships are not the exclusive determination of the existence of a family. [00:30:56] Speaker 03: The scope of these rights extend beyond natural parents, the parent and prince itself, prince versus Massachusetts, [00:31:03] Speaker 03: was the child's aunt and legal custodian. [00:31:06] Speaker 03: And on the next page, the Supreme Court says adoption is recognized as the legal equivalent of biological parenthood. [00:31:13] Speaker 03: So the fact that the city's reading of Glucksburg has led to abandon its own test and has reached the unusual circumstance where people who established parental rights under the marital presumption, the traditional one, and adoption would not have rights is a sign that the city has taken a wrong step in its analysis. [00:31:28] Speaker 03: I want to point out the city did not even cite Glucksburg below because we were proceeding under the shocks of conscience test. [00:31:35] Speaker 03: Even if we are to look at history, as I pointed out, this presumption here originated as a form of adoption in the reconstruction era. [00:31:43] Speaker 03: If the court decides that we should be looking at this through the lens of Glucksburg, I think we win. [00:31:47] Speaker 03: One, because the liberty interests shared by parents and children is the oldest of the liberty interests recognized by the Supreme Court. [00:31:53] Speaker 03: Even if we are going to focus on [00:31:55] Speaker 03: the particular configuration of the parent and the child, which is what the Supreme Court told us not to do in Obergefell, we still have a very strong argument based on history. [00:32:04] Speaker 04: So, counsel, let me ask you about a case I should have asked you about earlier. [00:32:07] Speaker 04: There's a case called Buckland, I'm sorry, Backland, which I think has a pretty rough language for you. [00:32:14] Speaker 04: Walk me through why that case is not bad for you. [00:32:18] Speaker 03: I'm happy to your honor so that case involved foster parents and what happened is that the state had taken the child out of the foster home because the foster parents were beating the child with a belt allegedly because the religious convictions require them to do so and the court rejected the claim by the foster parents to reinstate the child into their home for two reasons and [00:32:36] Speaker 03: The first was that foster parents and natural parents don't necessarily share the same rights. [00:32:43] Speaker 03: What the court said was, just because you have a status under state law, it does not mean you're able to leverage that status to assert the rights of the natural parent. [00:32:51] Speaker 03: This was the key language which came just after the quote I think you're referring to. [00:32:54] Speaker 03: The court pointed out that it was significant that the state retained discretion to remove the child from the home. [00:33:00] Speaker 03: So to go to the analysis of was there a substantive entitlement to custody, the answer was no, it was purely discretionary. [00:33:06] Speaker 03: So that perfectly works with our state created liberty test is because state law did not create the custody right that the plaintiff was asserting in that case. [00:33:16] Speaker 03: On the second point I want to make was that Regina footnote five very clearly says that. [00:33:23] Speaker 03: The Supreme Court has applied two different legal standards to substantive due process claims. [00:33:28] Speaker 03: One is the fundamental rights standard we apply here. [00:33:30] Speaker 03: The other is the shocks the conscious standard. [00:33:33] Speaker 03: And the two decisions that the Ninth Circuit cites there both point out that this is a disjunctive test. [00:33:38] Speaker 03: There are two independent ways to establish the claim. [00:33:42] Speaker 03: That's why you don't see a Glucksburg analysis in this line of cases involving police brutality against parents and children. [00:33:49] Speaker 04: But we have to assume that there is a right recognized to begin with. [00:33:54] Speaker 03: Yes, the liberty interests that's shared by parents and children, the sort of antecedent question of how you know whether the person is a parent or a child. [00:34:01] Speaker 03: Right. [00:34:01] Speaker 03: I think that's answered by state law. [00:34:03] Speaker 03: I think that's clearly not a Glucksburg question, as the Supreme Court said in Obergefell. [00:34:07] Speaker 03: Okay, very well. [00:34:09] Speaker 03: The third point I want to make was that Mr. Thomas was officially Mr. Love's parent. [00:34:14] Speaker 03: This was not a matter of just belief or expectation. [00:34:17] Speaker 03: The California courts have been very clear. [00:34:20] Speaker 03: The presumptions establish parental rights by operation of law. [00:34:23] Speaker 03: They exist out there in the real world. [00:34:26] Speaker 03: They do not depend on some court coming in later to give them official sanction. [00:34:30] Speaker 03: Every father in California is a presumed parent. [00:34:33] Speaker 03: That's the terminology of the California Family Code used. [00:34:35] Speaker 03: If you're married to your wife at conception and at birth, you're a presumed parent just in the same way that Mr. Thomas was a presumed parent. [00:34:43] Speaker 03: And I think we have a very strong case. [00:34:44] Speaker 03: I did not hear any argument otherwise about whether we've pleaded the two elements of the holding out presumption. [00:34:50] Speaker 03: Mr. Thomas raised Mr. Love from the age of one after his biological father died when he was seven months old. [00:34:56] Speaker 03: Mr. Love believed that Mr. Thomas was the biological father until he was 12. [00:35:00] Speaker 03: This is a clear-cut application of 7611D, and it fits squarely within this court's cases like Bertain and Merguia that have looked to state family law for a shocks to conscience claim. [00:35:12] Speaker 03: If there are no further questions. [00:35:16] Speaker 04: All right. [00:35:16] Speaker 04: Thank you, counsel. [00:35:17] Speaker 04: Thank you to both of you. [00:35:18] Speaker 04: It's my understanding that both of you clerked for Judge Watford? [00:35:21] Speaker 04: That's right. [00:35:21] Speaker 04: And was that back-to-back years? [00:35:25] Speaker 04: All right. [00:35:25] Speaker 04: Well, anyway, I will let him know that both of you did a fine job today. [00:35:29] Speaker 04: And then now we all know, you know. [00:35:31] Speaker 00: I want to second that. [00:35:34] Speaker 00: Both of you were very well prepared. [00:35:37] Speaker 00: And this is not an easy issue. [00:35:38] Speaker 00: These are the ones you lose sleep over. [00:35:41] Speaker 00: And I feel much better prepared whether you win or lose. [00:35:44] Speaker 00: I think you have prepared me as best you possibly can to make the right decision. [00:35:50] Speaker 00: And thank you very much for the time and effort and the excellent arguments we've heard. [00:35:54] Speaker 04: And Judge Watford can watch it on video, and I'm sure he'll have some advice for you. [00:35:58] Speaker 04: But anyway, we thought you did a great job. [00:36:00] Speaker 04: So anyway, thank you both, and this special session is adjourned. [00:36:05] Speaker 04: Thank you.