[00:00:01] Speaker 03: I will be referring to various cases by shorthand. [00:00:10] Speaker 03: If the court is unsure of any reference, please interrupt. [00:00:15] Speaker 03: The outcome of this case is determined by this court's recent published opinion in Seattle Pacific, in which the court creates two changes in law. [00:00:28] Speaker 03: The court holds for younger abstention to apply in state administrative proceedings, they must be judicial in nature. [00:00:37] Speaker 03: And second, the court states that the leading younger abstention case, San Jose Silicon Valley, the San Jose Elections Commission, has been abrogated by the U.S. [00:00:55] Speaker 03: Supreme Court in Sprint v. Jacobs. [00:00:58] Speaker 03: These two changes in law are directly related. [00:01:02] Speaker 03: Sprint held, younger abstention can only be applied to the three exceptional categories set out in a case called NOPSI. [00:01:15] Speaker 03: One of those categories is always judicial. [00:01:17] Speaker 03: The other two may be administrative proceedings. [00:01:22] Speaker 03: NOPSI independently requires the state administrative proceedings to be judicial in nature. [00:01:29] Speaker 03: San Jose and the cases it relied upon are inconsistent with sprint anopsy. [00:01:38] Speaker 03: Rather than recognizing that the state administrative proceedings must be judicial in nature, those cases incorrectly hold that judicial nature is a mere characteristic in evaluating the middle sex factors, like whether the proceeding implicates an important state interest. [00:01:58] Speaker 01: Mr. Roshan, wouldn't that rule basically cabin, younger extension, younger extension [00:02:12] Speaker 01: Middlesex itself and only kind of attorney disciplinary proceedings that are occurring within a state self-declared judicial branch, what does that do with all of the other cases we have where we're abstaining from administrative action in non-judicial branches, though they have judicial functions? [00:02:32] Speaker 03: When you say that rule, are you referring to the three exceptional categories that are set out in OPC? [00:02:38] Speaker 01: Yes, your definition of judicial is requiring that it be within a judicial branch. [00:02:43] Speaker 01: That's your argument, right? [00:02:44] Speaker 03: That's correct. [00:02:46] Speaker 01: Well, how do we handle all of the administrative proceedings that happen outside of the judicial branch, but still we've determined our quasi-judicial, judicial in nature, under this analysis? [00:02:58] Speaker 03: Well, under California's law, which is one of the tests that the courts have used to determine whether the proceedings are judicial in nature, [00:03:08] Speaker 03: The administrative proceedings of the standard kind are not deemed judicial in nature by the state law. [00:03:17] Speaker 03: The other proceedings that you may be referring to were in other states where the state law did deem those administrative proceedings to be judicial in nature. [00:03:26] Speaker 01: What case do we have where we have declared that the test for judicial in nature is what the state separation of powers deems it as rather than what we deem it as by function? [00:03:41] Speaker 03: The Ohio Civil Rights Commission, in the first sentence of a footnote, first states that [00:03:53] Speaker 03: Lower courts have been virtually uniform in holding that the younger principle applies to pending state administrative agencies that involve an important state interest. [00:04:08] Speaker 03: In a subsequent sentence of that footnote, the court states, of course, if the state law indicates that the administrative proceedings [00:04:23] Speaker 03: are not even judicial nature, abstention may not be proper. [00:04:32] Speaker 01: Can I ask you another question about what's next? [00:04:35] Speaker 01: Why wouldn't it be enough for you to bring a federal claim after the conclusion of the administrative proceedings here? [00:04:46] Speaker 03: I'm sorry, can you repeat the question? [00:04:48] Speaker 01: As I understand your arguments, you first contest the state's assertion that you have a writ remedy for raising due process and other federal violations. [00:05:04] Speaker 01: But our cases also seem to suggest that you may also have a separate lane where you could bring a federal action, perhaps. [00:05:16] Speaker 01: So why not let the administrative proceedings play out and if you have a federal claim at the end of it, bring them in either the writ process or through a separate action then. [00:05:31] Speaker 01: Why can't you do that? [00:05:33] Speaker 03: Well, you can do that. [00:05:35] Speaker 03: However, you may be exposed to certain other issues such as Rupert Feldman. [00:05:43] Speaker 03: In the circumstance where the administrative proceeding is pending, as the court in Ohio Civil Rights Commission noted, then what you're doing is only looking at [00:05:56] Speaker 03: that the nature of that proceeding and nothing else. [00:06:00] Speaker 03: Once you go to writ of mandamus, then you are in a judicial proceeding. [00:06:07] Speaker 03: Any time between then is sort of an issue of what order are you attacking? [00:06:14] Speaker 03: And Rooker Feldman may become an issue. [00:06:17] Speaker 01: So you don't deny that you could raise your federal claims, your federal rights, any federal issues here? [00:06:25] Speaker 01: In a proceeding only, but that it could come at the cost of either a preclusion or a Rooker Feldman issue if you tried to? [00:06:33] Speaker 03: That's correct. [00:06:37] Speaker 01: How are you, I guess, if you can raise that for younger purposes, why isn't that the end of the analysis? [00:06:45] Speaker 01: You're not entitled to a federal forum for federal claims in all sorts of other places, including in younger itself. [00:06:53] Speaker 01: You can't exit a state criminal proceeding and get a declaration there. [00:06:58] Speaker 01: So why isn't that remedy controlling? [00:07:00] Speaker 01: The fact that you can get a writ and raise your claims there is the end of the analysis. [00:07:04] Speaker 03: The Supreme Court has been clear [00:07:07] Speaker 03: that younger abstention only applies in circumstances where the state proceeding is judicial in nature. [00:07:15] Speaker 03: And this court has recently recognized that requirement. [00:07:23] Speaker 03: And if a person opts to go to state court, then younger abstention applies. [00:07:32] Speaker 03: If the state administrative proceedings are not judicial in nature, [00:07:36] Speaker 03: Then the courts have allowed the federal courts to have jurisdiction. [00:07:42] Speaker 02: Counsel, can I ask you about the Seattle Pacific case real quick? [00:07:45] Speaker 02: You cited that at the beginning of your argument. [00:07:48] Speaker 02: Um, in that case, as I understand the facts, the, there were actually were no pending charges or actual proceedings. [00:07:55] Speaker 02: It was an investigation. [00:07:56] Speaker 02: And the Ninth Circuit in that case said Younger does not apply because, if I can quote the language here, effectively there was no active administrative proceeding. [00:08:05] Speaker 02: That's obviously different than this case. [00:08:07] Speaker 02: In fact, it says here, to begin with, there is no state court proceeding here, nor is there an administrative proceeding or other enforcement action. [00:08:16] Speaker 02: Whereas in this case, there was an enforcement action. [00:08:18] Speaker 02: So how does Seattle Pacific bind us if that case did not have a pending action where ours does? [00:08:26] Speaker 03: Under Miller v. Gammy, the courts are bound by not just the holding of the case, but the mode of analysis. [00:08:33] Speaker 03: Those two in Seattle Pacific clearly show that when Seattle Pacific is responding to the Attorney General's argument that the proceedings below should be considered ongoing, the investigation should be considered as part of the ongoing proceedings. [00:08:54] Speaker 03: The court responds by saying the state administrative proceedings must be judicial in nature, and that the attorney general's argument is rejected because the investigation is not a judicial proceeding. [00:09:14] Speaker 02: OK. [00:09:15] Speaker 02: I'm not sure I read it that way, but I appreciate your argument. [00:09:18] Speaker 02: Did you want to reserve any time for rebuttal? [00:09:26] Speaker 03: I just want to make clear for a moment, the courts have laid out two tests in analyzing whether the cases are judicial in nature. [00:09:35] Speaker 03: One is a state test, which you look at the state law, whether the state law deems the proceeding to be judicial in nature. [00:09:43] Speaker 03: That is another way of saying whether the state constitution vests judicial power in the administrative agency. [00:09:51] Speaker 03: In the case of the standard California state agencies, the answer to that question is no. [00:09:57] Speaker 03: The second test is the federal test, which involves a slew of tests. [00:10:03] Speaker 03: One is the party presentation principle. [00:10:07] Speaker 03: In the case of the standard California administrative proceedings, like the one in this case, Baffert and San Jose, that test is failed because the [00:10:19] Speaker 03: Investigator, prosecutor, and adjudicator are the same. [00:10:26] Speaker 02: OK, you're over time, but what I'm going to do, I'm going to give you, let's give them two minutes for rebuttal. [00:10:31] Speaker 02: So you can come back up, you get two minutes, OK? [00:10:33] Speaker 02: Thank you. [00:10:33] Speaker 02: You got it. [00:10:46] Speaker 00: Good morning, may it please the court? [00:10:48] Speaker 00: I'm Jack Nick, Deputy Attorney General for The Respondent. [00:10:52] Speaker 00: The sole issue on this appeal is whether the underlying proceeding was quasi-criminal, quasi-judicial in nature for purposes of the younger abstention test. [00:11:05] Speaker 00: Based on this California Supreme Court, I mean, sorry, the United States Supreme Court and this court's precedent, the answer is yes, and the trial court should be affirmed. [00:11:16] Speaker 00: As the court is aware from Mr. Rochon's multiple other lawsuits, he was disciplined by the California State Bar for unethical conduct and overreaching with his client. [00:11:30] Speaker 00: After that, finding the Department of Real Estate in California instituted its own discipline proceeding on a reciprocal [00:11:36] Speaker 00: statute allowing for use of the prior findings to serve as the basis for discipline action against him under the Department of Real Estate standards. [00:11:50] Speaker 00: And during that proceeding, before it was concluded, Mr. Rochon filed this lawsuit. [00:11:56] Speaker 00: The administrative proceeding was pending in the Office of Administrative Hearings in front of an ALJ judge, which afforded the right to cross-examine witnesses, introduce documents, and was in all respects an adjudicatory hearing based on precedent in California and this court. [00:12:20] Speaker 01: Mr. Nick, could Mr. O'Shaughn raise federal constitutional claims before the agency? [00:12:27] Speaker 00: He, at the point where this lawsuit was filed, it hadn't been heard yet. [00:12:31] Speaker 00: Ultimately, he raised, he mentioned to the administrative law judge that there are constitutional issues, but did not fully explore them at the hearing. [00:12:42] Speaker 01: But yeah, so there's a question of whether it was preserved, but in general under California law, I guess it wasn't clear to me whether in the agency proceedings, setting the writ aside, constitutional claims can be raised in the agency proceedings. [00:13:00] Speaker 00: They can be raised. [00:13:02] Speaker 00: He would not have been precluded from raising those issues. [00:13:05] Speaker 00: And as indicated in the Kenny Alley case in front of this court, administrative law judge has the power to consider them and test them against the standards that are at issue in the matter. [00:13:21] Speaker 01: Even if it's a due process claim about the nature of the process he's provided? [00:13:26] Speaker 00: That's correct. [00:13:27] Speaker 01: Okay. [00:13:28] Speaker 01: With that, then what's the state's view on whether a determination there would have preclusive effect? [00:13:36] Speaker 01: I think we would look to state law. [00:13:39] Speaker 01: This is following up on the concern of mine and the younger courts that he have a forum to hear his claims. [00:13:51] Speaker 01: Would a determination by the agency of constitutional issues arising from the administrative proceedings be preclusive under California law? [00:14:04] Speaker 00: If I understand the question is basically if he, if the administrative law judge makes findings, would those be binding in later action? [00:14:15] Speaker 01: Right, if he actually litigated it and was able to reach a conclusion. [00:14:18] Speaker 00: It's my understanding that they would not [00:14:20] Speaker 01: Okay. [00:14:23] Speaker 01: Your primary argument as to the federal forum or the forum for federal claims is the availability of the administrative writ. [00:14:32] Speaker 01: Same or different answer there if he petitioned to raise his claims through an administrative writ? [00:14:39] Speaker 00: Yes. [00:14:40] Speaker 00: If he pursues a administrative writ in California State Court, for example, and either does or doesn't raise those arguments, I think that he would be precluded. [00:14:48] Speaker 01: What do you make of the Jim Gotchian case we'd recently decided that raised in light of the Takings case, the Supreme Court, that recently came down from the Supreme Court that were kind of creating a preclusion trap for litigants. [00:15:06] Speaker 01: In that case, the Supreme Court seemed worried that [00:15:09] Speaker 01: litigants be denied a federal forum for claims against the state. [00:15:16] Speaker 01: And I think that's part of whether we reached it or not part of the court's concern in Seattle Pacific. [00:15:21] Speaker 01: Is that trap Apple goal here? [00:15:23] Speaker 00: I don't think it's applicable here for a couple of reasons. [00:15:26] Speaker 00: One is that that was decided in the debate doctrine of preclusion, and we aren't there yet in this case. [00:15:33] Speaker 00: The matter had not even been heard in administrative appeal. [00:15:37] Speaker 00: And second, you know, Mr. Rousseau has filed a subsequent lawsuit after the GRE proceeding was concluded. [00:15:43] Speaker 00: And I think if it's going to be relevant, it's probably more relevant in that case than here. [00:15:50] Speaker 00: And third, in Jim Gochin, I observed that it appears the administrative law judge in that case didn't even allow argument on the constitutional issues. [00:16:03] Speaker 00: And I appreciate the court's question. [00:16:06] Speaker 00: I think we're a little ahead of ourselves here, because there's all kinds of things that can happen before a matter is heard at the administrative department and the conclusion of the hearing that may affect that analysis. [00:16:18] Speaker 01: Okay, thank you. [00:16:25] Speaker 00: The Nopsy case that Mr. O'Shaughn cited referred to the character of the proceeding rather than the character of the body as to whether it's quasi-judicial or criminal or quasi-criminal nature. [00:16:37] Speaker 00: And here again, you know, we have all the hallmarks of a quasi-criminal matter in that the [00:16:45] Speaker 00: The accusation, charge, pending, and GRE was to discipline a, or sanction, rather, a Department of Real Estate professional following an adversarial hearing at which cross-examination witnesses and evidence are considered. [00:17:02] Speaker 00: The ALJ judge would issue findings, specific findings, that would cover all the evidence. [00:17:12] Speaker 00: So with that, if there's any questions, [00:17:16] Speaker 02: All right, thank you very much. [00:17:17] Speaker 02: Thank you. [00:17:37] Speaker 03: As the court appears to recognize, the NIC opinion does provide the federal forum in this circumstance. [00:17:44] Speaker 03: The administrative proceedings, the state does not allow those proceedings to address constitutional issues and no constitutional issues were raised. [00:18:09] Speaker 02: Anything further? [00:18:09] Speaker 03: Do you have any questions, otherwise? [00:18:13] Speaker 02: Thank you, counsel. [00:18:14] Speaker 02: Thank you. [00:18:14] Speaker 02: I thank you both for your briefing and argument in this case. [00:18:17] Speaker 02: It is submitted.