Legal Case Summary

. Throughout the trial, the city court continued to push off our challenge to their application of the code, refusing to even consider it. It is obvious that the court did not want to deal with this. So when we filed our appeal with the state court under Judge McClennan, the state court came back stating in their opinion an error saying, defendant did not raise any defense bases under ARS-41-1493.01 prior to trial, thus this court may review for fundamental error only. So it is obvious here that the state court also refused an error to consider a challenge to the constitutionality of the code. Well, that's my question. They may have made a mistake. I wouldn't rule that out, but we don't have the authority to sit to correct their mistakes. If the superior court makes a mistake, the next step in the process is the Arizona Court of Appeals. And then if they mess it up, the next step is the Arizona Supreme Court. And they're wrong, then it's the U.S. Supreme Court. We don't have the right to come in and deal with that. If that was the issue or the ability, that would be something we would take, and that is something we did take. We appeal to the appellate Arizona Court of Appeals. The Arizona Court of Appeals reply to us stating that the highest jurisdiction from the city court is the state court. So we cannot go beyond the state court

. I mean, if you lost, I guess the Arizona Court of Appeals threw you out for whatever reason, right or wrong. I haven't, don't know, but if you're not happy with what they do, then you go to the Arizona Supreme Court. I understand, Your Honor, but this U.S. Supreme Court. Sure. And I think that is something that we need to understand is this is not, we are not trying to relitigate the criminal case. What we're trying to do is take the foundation of the application of the constitutional code, the application of this code, and challenge that in itself. If you're right about your constitutional arguments, wouldn't that imply that your conviction was invalid? That can be dealt at a different matter. Obviously, we have to challenge the code, the foundation of the code first, and then we can come back and state, well, the other court ruled that this code applied to private religious gatherings is unconstitutional. Yes, but my point is, if we were to say, you know, Mr. Salman's got a valid point all along, wouldn't that imply that your city court conviction was invalid? It would have to be refiled as that, as new evidence. And the problem there is Judge Marton said that we have a case of Supreme Court, as a case called HEC, HECK that says, if a civil case would imply the invulnerability of a criminal conviction, you can't do that. You've got to go back to the criminal case and get the criminal case fixed. Why did Judge Marton throw the case out? Well, HECK, Judge Marton threw the case out because of younger, specifically very younger, even though he did mention HECK, which we do not argue with HECK, because HECK says that we cannot ask for damages under the civil rights USC at the time of 1983, unless we first get an overturn, and then we can ask for damages. So we're not arguing HECK, but we're arguing is the fact that we are challenging the application of this code. Your honor is this application of this code is pending even today. The appellans cannot have Bible studies in their living room outside of the criminal case

. Presently, the appellans cannot have Bible studies in their living room unless they conform their property to meet commercial codes. So if we were to have a Bible study in our living room today, and we were to get violated, we'd be back to square number one, into the City of Phoenix Municipal Court, challenging the code again. How do you have any thoughts on whether the arc case of Moldinado versus Harris, as any applicability to this matter? As of, I did not see that case when studying at your honor, to be honest with you, but if it has anything to do with Rucker and Feldman as a pretence, as a foundation, it doesn't apply. Because again, Rucker Feldman's... It actually, actually, the case is very helpful to you. That's why you're saying you have. If you had any thoughts about it. I have not, and can you tell me the case one more time, your honor? Yeah, it's Moldinado versus Harris, 370, Fed 3rd, 945, at 950, and that's a night circuit case from 2004. Wonderful. Thank you, hon. The issue here is there has to be an ability for plaintiffs when they are, or even defendants in a criminal case, to be able to challenge certain issues when they're presented with the threat of jail, or the presented with the threat of fines, etc. How is it with respect? I respect your argument, but in this particular case, what you're dealing with, at least with this court, is a procedural matter. And the real question here, at least for me, is whether the underlying verdict was one of what are called forbidden de facto appeals that's been carved out of Rucker Feldman. Do you have any comment on that? I can't remember it. Are you trained in the law? You're very good at what you're doing, but I'm just asking you do you know about these things or not? You know what I'm talking about with these de facto appeals, the forbidden de facto appeals? Yes, yes, Your Honor. And I think, if I may, Your Honor, I think this has been the issue that has been ever presented before the federal court and any courts, even to this day

. Is our presentation of the criminal case is not to ask the court to relitigate the criminal case or to make it a de facto appeal? With respect, I understand that's what you're saying. But in our parlance, you need to fit it within the exceptions to Rucker Feldman. And I'm asking you to help us with that. Sure. Rucker Feldman, the court has narrowed its application and forbids two different types of de facto appeals. I wonder if you have any comment on why your case does not fit into those two categories? I do not have any comment other than what I do know is that in order for something to be appealed, it must be litigated in the first place. That makes sense. And the issue is the constitutional of the city code was never litigated. It was refused to be litigated in the city court by the judge. You tried to litigate it and the judge made a mistake perhaps in not buying your point. Well, that's, I wish that was the case, but the case specifically, and I quote what she stated, was that she was not going to deal with that right now. Would you ask her to? Absolutely. And so that's the mistake that she made and that's the mistake that should have been appealed and if you're right, you would have won. Exactly, Your Honor. And we did appeal it. We appealed it to the state court. Right. And the state court came back and said, we didn't even raise the issue

. Well, again, if they're wrong, I've been through this before, but you know, then you go up to the chain. We're not part of the chain. The next chain is the Pelacorte and the Pelacorte has no jurisdiction in the case. Again, Your Honor, under the Arizona rules, the highest a person can appeal from the city court is a state court. You cannot appeal to the Arizona Court of Appeals in the Supreme Court. That may have been, that may have been an option, but in this case, we decided to take it to federal court. Actually, we took it to that's the problem. I mean, that's well, Your Honor, we took it to federal court right after this trial court. We took it to federal court under Judge Marton. And we requested Judge Marton to look at the code and to, and we challenged the code. Judge Marton said, well, it's still in it. It's still in the court of appeals. So we can't look at it because it's pending state proceedings at this time. You must exhaust state proceedings prior to coming to federal court, which when the court of appeals returned to reply stating that they cannot hear it because they have no jurisdiction, we then went and refiled the federal case. And that's when Judge Tealberg listened to it. And then he said, well, it was already litigated. It wasn't already litigated. The state court, the state superior court made an errand said that we did not even bring up a defense

. It was as, and excuse my outlook on this, as if the judge did not even read the pretrial motion. He should have considered it. They have an obligations, judges have an obligations to listen to the challenge of the foundation of the code that's being applied to a criminal case. And when there's challenges to it, you cannot just ignore them and say, I'm not going to listen to that. I'm not going to hear that right now, or to state in her, in her transcripts, to state something like, I cannot change the law. The City Council has decided these are the codes, and I can only uphold the code. I know as you said at the beginning, you wanted to give Ms. Salman an opportunity to, would this be a good time to pass the baton? Yes, sir. Okay, thank you. Thank you. Good morning. Good morning, Your Honours. May I please the court? My name is Suzanne Salman, and I am also a plaintiff in this case. I would just briefly like to add to what's already been said, that this is an issue that has continued to have effect on me and my family. This is an issue that must be addressed so that citizens have a right to gather in their homes privately without fear of prosecution. We are continually informed by the defendant that the only resolution to this matter is to convert my home into a church. There are house churches and home Bible studies all over this nation. People should have the right to gather, and the federal court should have considered my present rights and interest in this case

. Even though I am married to Michael Salman, I am not immune from also being prosecuted in the future for holding home Bible studies. And I will add that the City of Phoenix did also warn me of that. They told me they said, if you continue on in this matter, we have the right to prosecute you as well for having a Bible study in our home. Restricting religious gathering is unconstitutional, and I would ask that this court remand this case back to the federal court so it can be heard so that we can litigate these issues. I would like this court to understand that even though there have been no charges brought against me personally at this time, I know that if I choose to exercise my faith at home, charges are inevitable. This has had a chilling effect on me and anyone who has a house church or chooses to re-excuse me, exercise their religious freedom from their home. So this case is not just about what happened, it's about what continues to happen, it's about what has happened in the past and the threats that we've had and the threats we continue to have if we want to have a Bible study in our home. Thank you. Thank you. So, for the city? Your honor, please, the court. My name is Brad Holm. I represent the Apollee City of Phoenix. Thank you for the opportunity to present our position today. The issue in this case is whether the court should grant the solmums another opportunity to argue that the Phoenix building codes on their face violate the solmums religious liberties. Let me suggest to you that the question should be taken. We're talking to, go ahead, did well. Let me see, I haven't asked what, yeah, I don't know. You're up

. It's definitely Judge Wallace's turn. Yeah. Thank you. Senior already does help. I think the question to my mind is a little more defined and that is whether the District Court committed an error in applying Rooker Filman. And so if you could focus on that issue, I'd be helpful. I'm somewhat concerned that a case that appears to me to be right on point, a nine-circuit case manufactured home communities versus city of San Jose. A 205 case was not cited by either side. In that case, Judge Fletcher, Betty Fletcher, now deceased, focused on the issue and it was as the issue is here that it involved a city. And the holding is very negative for the Apollee in this case. Are you familiar with that case? Your Honor, I am not familiar with that case. There are a legion of cases on Rooker Filman and the nine-circuit as well as across the other circuits and just a handful of the Supreme Court levels, you know. Yes, I understand that. But this one appears to be right on point where a city is involved and the trial court applied Rooker Filman and we reversed. Well, Your Honor, may I address my Rooker Filman argument then? Please. I apologize that I'm not familiar with that case. Here's the Rooker Filman argument. The trial court really dismissed the district court dismissed on two grounds, two significant grounds

. I'll skip to the Rooker Filman one first, but I'd like to come back if I get a chance to to talk about the federal preclusion ground. Because that really went to Judge Teoborg's sense that he did not have a pellet jurisdiction over Martones order. And really, he is a court of original jurisdiction, not a court of a pellet jurisdiction. And effectively what the Salmons did in the Teoborg matter is they asked Martone, they asked Teoborg to reverse a central poor claim and a set of issues and a set of remedies that were asked for in the Martone matter that Martone refused to grant. Going to Rooker Filman. With respect to the Rooker Filman issue, Your Honor, number one. This is not an Exxon mobile case. They argue in their briefs that it is because they argue that in Exxon mobile there was under the second judge fletcher, the Sun's case, the Noel case, but there was an independent claim. This is not an independent claim case for this reason. The independent claim analysis that they have in their briefs, I apologize, the independent claim analysis that they have in their briefs is based on the notion that they were only seeking prospective injunctive relief against the enforcement of the building code ordinance. To do that, they have to make some kind of on its face, unconstitutionality argument. And they tried to do that in the district court in front of Teoborg, but as the record from that case clearly shows, Teoborg couldn't figure out what they were arguing on its face. This building code adopted by numerous jurisdictions around the country, what that argument was, and they couldn't articulate it. And they have abandoned that on appeal. There's no argument on appeal. You understand your point. You're saying that in the four winter factors, they couldn't show the first. That's right

. You're trying to get the injunctive relief, is that right? That's right. That's what the Teoborg rule. All right. So with respect, though, back to Rooker Feldman, Rooker Feldman has in it this independent claim argument that they make. That's the only one of all the exceptions to Rooker Feldman that they articulate at all. They say that they've got an independent claim that albeit challenges a legal conclusion of a state courted adjudication. They never articulate what that claim is. They don't say what the claim is. They don't say what the authority is for that claim. Instead, they sort of leave it to you to read between the lines. But the reading between the lines suggests that they believe they have an on its face constitutional challenge to the building code. Did your position at Rooker Feldman bars the what would amount to a de facto appeal of Mr. Solomon's criminal conviction? Yes. Okay. How does that affect Mrs. Solomon? Well, good point, Your Honor. Let's go back to point number one on the basis on which the case was originally dismissed. Judge Teoborg dismissed it. He dismissed it on the ground that there were that the issue of the perspective enforcement of the building code against the Solomon's was before Judge Marton. And before Judge Marton, the argument was that that was a perspective claim and therefore it was an independent claim under younger. And therefore he shouldn't dismiss it under younger. They argue that and in Marton's opinion reported on West Law, it's very clear that he understands that they're arguing that they have a perspective claim that's not barred by younger. He goes ahead and dismisses that so-called independent claim, applying younger. If that was a mistake, then the proper remedy for that mistake was direct appeal not collateral attack, as you know. So my argument is that the independent claim that they argued in front of Marton is the same kind of independent claim they're arguing as the exception to record Feldman in this case. And because they argued and lost that claim in front of Marton and because their argument was it wasn't a proper claim for extension under younger, it should have come to this court at that time. And that's essentially what two of Borkhelt. Let me ask you on that particular question whether there was a final determination by Judge Marton. If you look at the order granting, he says, all claims are dismissed without prejudice. All claims are dismissed without prejudice. Now, it's just Hornbuklaw that there's an action and there's a complaint and if you dismiss the complaint without prejudice, what you're saying is you can refile another complaint. The action by Judge Marton wasn't. Now, admittedly, sometimes the clerk's office gets a little filed up. But I'm not being critical. It's just that they aren't schooled in the difference between the action and the complaint. And strikingly, when we get to Judge Tealberg's, he says the case, the case, whatever the case means, is dismissed without prejudice

. He dismissed it on the ground that there were that the issue of the perspective enforcement of the building code against the Solomon's was before Judge Marton. And before Judge Marton, the argument was that that was a perspective claim and therefore it was an independent claim under younger. And therefore he shouldn't dismiss it under younger. They argue that and in Marton's opinion reported on West Law, it's very clear that he understands that they're arguing that they have a perspective claim that's not barred by younger. He goes ahead and dismisses that so-called independent claim, applying younger. If that was a mistake, then the proper remedy for that mistake was direct appeal not collateral attack, as you know. So my argument is that the independent claim that they argued in front of Marton is the same kind of independent claim they're arguing as the exception to record Feldman in this case. And because they argued and lost that claim in front of Marton and because their argument was it wasn't a proper claim for extension under younger, it should have come to this court at that time. And that's essentially what two of Borkhelt. Let me ask you on that particular question whether there was a final determination by Judge Marton. If you look at the order granting, he says, all claims are dismissed without prejudice. All claims are dismissed without prejudice. Now, it's just Hornbuklaw that there's an action and there's a complaint and if you dismiss the complaint without prejudice, what you're saying is you can refile another complaint. The action by Judge Marton wasn't. Now, admittedly, sometimes the clerk's office gets a little filed up. But I'm not being critical. It's just that they aren't schooled in the difference between the action and the complaint. And strikingly, when we get to Judge Tealberg's, he says the case, the case, whatever the case means, is dismissed without prejudice. And then it says the clerk shall enter judgment accordingly. Now, I don't know if you sure we have jurisdiction based upon that statement. But it's least in the process of looking at what Judge Marton did, it seems to me that he did not suggest that there would be a finalization. That is that the action would be dismissed, but only that there could refile. Can you help me with that? It's sort of difficult for me to understand your argument based upon the record. No, no, it's a fair question to ask your honor. Let me address that directly. So Judge Tealberg cited a case called Offshore Sportswear, which introduced, didn't introduce for the first time, but discussed the doctrine of collaboratively final orders. In our brief, we emphasize collaboratively final orders without citing Halic, which is the United States Supreme Court decision. Clearly, the development of the law at the time that offshore sportswear was decided suggests that collaboratively final orders might have more breadth than the Supreme Court subsequently decided in Halic. So when you look at the question that you've raised, Judge Wallace, the answer to that is in a case of this circuit called California Department of Water Resources versus PowerX Court. And they're citing the idle wild, bond voyage liquor court case. This court held in no uncertain terms that when a district court order places the parties effectively out of court, it is final and appealable. That's what Mark Tone's order did. It placed the parties out of court. How is that when he says dismissed without prejudice, isn't he saying you can file another complaint in this action? That's right. He is. But the question is, did he quote effectively, did he place those parties, quote, effectively out of court, close quote? If he did, then the order is final and appealable

. And then it says the clerk shall enter judgment accordingly. Now, I don't know if you sure we have jurisdiction based upon that statement. But it's least in the process of looking at what Judge Marton did, it seems to me that he did not suggest that there would be a finalization. That is that the action would be dismissed, but only that there could refile. Can you help me with that? It's sort of difficult for me to understand your argument based upon the record. No, no, it's a fair question to ask your honor. Let me address that directly. So Judge Tealberg cited a case called Offshore Sportswear, which introduced, didn't introduce for the first time, but discussed the doctrine of collaboratively final orders. In our brief, we emphasize collaboratively final orders without citing Halic, which is the United States Supreme Court decision. Clearly, the development of the law at the time that offshore sportswear was decided suggests that collaboratively final orders might have more breadth than the Supreme Court subsequently decided in Halic. So when you look at the question that you've raised, Judge Wallace, the answer to that is in a case of this circuit called California Department of Water Resources versus PowerX Court. And they're citing the idle wild, bond voyage liquor court case. This court held in no uncertain terms that when a district court order places the parties effectively out of court, it is final and appealable. That's what Mark Tone's order did. It placed the parties out of court. How is that when he says dismissed without prejudice, isn't he saying you can file another complaint in this action? That's right. He is. But the question is, did he quote effectively, did he place those parties, quote, effectively out of court, close quote? If he did, then the order is final and appealable. The Supreme Court revisited that issue in a case called Quackenbush. And in Quackenbush, the court specifically held that in an abstention case that results in a remand to state court. So it was a court, a case that was removed to federal court. But then the federal court, the district court decided under Colorado River abstention that the court should abstain and the matter should be remanded to state court. The United States Supreme Court said in that case that the order essentially abstaining was appealable. So here I don't think there's any question under those two decisions that Judge Mark Tone's order was appealable. So then the question is, can they take that claim that they asserted in Mark Tone's court and instead of appealing it to the Ninth Circuit, come to Judge Teoborg and effectively through a horizontal appeal to the same level of judicial district, could they come to Judge Teoborg and ask him to reverse it. And that's point one in his decision that he did, he analyzed it in terms of federal preclusion law. But what he was really saying, I think, is that he did not have a pallet jurisdiction, horizontal appellate jurisdiction. Did he say that? He did not say that, you're on it. I can say the other interpretation of that is that he improperly failed to take into account that what had been done by Mark Tone was to dismiss without prejudice, which is my colleague indicated would allow these folks to refile. And in this case in Teoborg's court, I get your point about there's another way to look at it, but it is the idea that they could file the claim in another court because this missile was without prejudice is certainly not laughable, is it? It's not laughable, but here's the gut argument. The gut check for this panel in my opinion is this. In Offshare Shore Sportswear, you'll remember that the issue was a forum selection clause. It was litigated as a separate issue to determine jurisdiction and decide it. So hence the first case was dismissed without prejudice. What ends up happening through a bunch of convolution is that the plaintiff disappointed there, a fair fowls in state court, gets removed, and then it comes eventually to this court again because the district court dismisses it again, even though it had not been dismissed with prejudice the first time around. And when it gets here, this court says the telling language from the claim cases is that what the plaintiff in that case did is they came back into federal court a second time on the proposition that the first federal determination was meaningless

. The Supreme Court revisited that issue in a case called Quackenbush. And in Quackenbush, the court specifically held that in an abstention case that results in a remand to state court. So it was a court, a case that was removed to federal court. But then the federal court, the district court decided under Colorado River abstention that the court should abstain and the matter should be remanded to state court. The United States Supreme Court said in that case that the order essentially abstaining was appealable. So here I don't think there's any question under those two decisions that Judge Mark Tone's order was appealable. So then the question is, can they take that claim that they asserted in Mark Tone's court and instead of appealing it to the Ninth Circuit, come to Judge Teoborg and effectively through a horizontal appeal to the same level of judicial district, could they come to Judge Teoborg and ask him to reverse it. And that's point one in his decision that he did, he analyzed it in terms of federal preclusion law. But what he was really saying, I think, is that he did not have a pallet jurisdiction, horizontal appellate jurisdiction. Did he say that? He did not say that, you're on it. I can say the other interpretation of that is that he improperly failed to take into account that what had been done by Mark Tone was to dismiss without prejudice, which is my colleague indicated would allow these folks to refile. And in this case in Teoborg's court, I get your point about there's another way to look at it, but it is the idea that they could file the claim in another court because this missile was without prejudice is certainly not laughable, is it? It's not laughable, but here's the gut argument. The gut check for this panel in my opinion is this. In Offshare Shore Sportswear, you'll remember that the issue was a forum selection clause. It was litigated as a separate issue to determine jurisdiction and decide it. So hence the first case was dismissed without prejudice. What ends up happening through a bunch of convolution is that the plaintiff disappointed there, a fair fowls in state court, gets removed, and then it comes eventually to this court again because the district court dismisses it again, even though it had not been dismissed with prejudice the first time around. And when it gets here, this court says the telling language from the claim cases is that what the plaintiff in that case did is they came back into federal court a second time on the proposition that the first federal determination was meaningless. And that's what the Salman's did here. They came back into Teal Board's Court based on that proposition that Marton's decision was meaningless. But in Marton's Court, he recognized he was being asked to declare that the building code on its face was unconstitutional and that was a separate independent issue from the attempt to undo the convictions and incarceration, which was younger abstention, the younger abstention issue. In fact, he says in his opinion, the opinion on West Law, that because they realized they were going to lose on younger abstention before Marton, they couldn't challenge their convictions there. He said, quote, they are not requesting, they say, that their convictions for ordinance violations be overturned, but instead want to establish the existence of their constitutional rights and determine whether the ordinances and building codes as written violate those rights, close quote. So that's the independent claim they say was not subject to younger abstention. And so the dismissal of it, therefore by their argument, was error. That dismissal should have been appealed to this court. Instead, they bring the same claim over in front of Teal Board and say, do now what Marton didn't do. And if you do that, then you turn federal jurisprudence and management of the courts on its head. And allow that against the litigate over and over again. I apologize, Judge Hall. How does that end in getting us jurisdiction on the Teal Board case? This is a little confusing. As I indicated, Judge Tealberg said, is to dismiss the cases, to dismiss without prejudice. Ordinarily, that would end it until they filed another complaint. But in the judgment that's entered by the clerk's office, they say the complaint and action are dismissed without prejudice. Of course, if the actions are dismissed, it's with prejudice. Now, we have a record here that I'm not sure we have jurisdiction

. And that's what the Salman's did here. They came back into Teal Board's Court based on that proposition that Marton's decision was meaningless. But in Marton's Court, he recognized he was being asked to declare that the building code on its face was unconstitutional and that was a separate independent issue from the attempt to undo the convictions and incarceration, which was younger abstention, the younger abstention issue. In fact, he says in his opinion, the opinion on West Law, that because they realized they were going to lose on younger abstention before Marton, they couldn't challenge their convictions there. He said, quote, they are not requesting, they say, that their convictions for ordinance violations be overturned, but instead want to establish the existence of their constitutional rights and determine whether the ordinances and building codes as written violate those rights, close quote. So that's the independent claim they say was not subject to younger abstention. And so the dismissal of it, therefore by their argument, was error. That dismissal should have been appealed to this court. Instead, they bring the same claim over in front of Teal Board and say, do now what Marton didn't do. And if you do that, then you turn federal jurisprudence and management of the courts on its head. And allow that against the litigate over and over again. I apologize, Judge Hall. How does that end in getting us jurisdiction on the Teal Board case? This is a little confusing. As I indicated, Judge Tealberg said, is to dismiss the cases, to dismiss without prejudice. Ordinarily, that would end it until they filed another complaint. But in the judgment that's entered by the clerk's office, they say the complaint and action are dismissed without prejudice. Of course, if the actions are dismissed, it's with prejudice. Now, we have a record here that I'm not sure we have jurisdiction. Is there some way we can decide this case? That is, is what Judge Tealberg did and what the clerk's office did sufficient to make it final so that we can have jurisdiction? I go back to the Idle Wild Case, the California Department of Water Resources case, and Quackenbush. Long story short, is these plaintiffs were thrown out of federal court by their estimation. On that basis, they're entitled to, I'm sorry, my time's up here on it. I finished. On that basis, they're entitled to, to come to this court to determine whether the decision on jurisdiction by the district court was valid. So a district court always has jurisdiction to determinants jurisdiction. It determined it wrong. These plaintiffs claim, and so now they're here. My view is you have jurisdiction, and you should affirm, and I would ask the court to do that. Before you leave on my time, so you believe that the decision by Tealberg is a final decision? It is a final decision with respect to jurisdiction. About the right. Without our jurisdiction. Your jurisdiction. Okay. Let me ask you just one answer. Will it judge Wallace's position? Let me ask you one other question. Having to do with the Rooker Filman. I alerted your opposition of this case by Judge B

. Is there some way we can decide this case? That is, is what Judge Tealberg did and what the clerk's office did sufficient to make it final so that we can have jurisdiction? I go back to the Idle Wild Case, the California Department of Water Resources case, and Quackenbush. Long story short, is these plaintiffs were thrown out of federal court by their estimation. On that basis, they're entitled to, I'm sorry, my time's up here on it. I finished. On that basis, they're entitled to, to come to this court to determine whether the decision on jurisdiction by the district court was valid. So a district court always has jurisdiction to determinants jurisdiction. It determined it wrong. These plaintiffs claim, and so now they're here. My view is you have jurisdiction, and you should affirm, and I would ask the court to do that. Before you leave on my time, so you believe that the decision by Tealberg is a final decision? It is a final decision with respect to jurisdiction. About the right. Without our jurisdiction. Your jurisdiction. Okay. Let me ask you just one answer. Will it judge Wallace's position? Let me ask you one other question. Having to do with the Rooker Filman. I alerted your opposition of this case by Judge B. Fletcher, a manufacturing home, and neither side cited. So I'm not sure you're familiar with that case. I'm not. You're on. Let me just read one part of it so you can see the problem that I need an answer to and why I'd like I'm happy to have you here. Because I haven't made up my mind. But it says here, MCH sues the city of San Jose, an adverse party, not a state court. MHC is challenging the city's interpretation of the ordinance. MHC's complaint does not directly challenge a state court's factual or legal conclusion. MHC's complaint to the district court is therefore not forbidden for Bid and appeal under Rooker Filman. It's fairly close to the case we have here. And I know this puts you to disadvantage not having read the case. And I want to go back and read it again myself after the argument. But I wanted in fairness because it's an issue we have to deal with to give you an opportunity to comment. Sure. Thank you. You're on it for that opportunity. There are as I've noticed in my preparation for today, there are two kinds of Rooker Felden cases

. Fletcher, a manufacturing home, and neither side cited. So I'm not sure you're familiar with that case. I'm not. You're on. Let me just read one part of it so you can see the problem that I need an answer to and why I'd like I'm happy to have you here. Because I haven't made up my mind. But it says here, MCH sues the city of San Jose, an adverse party, not a state court. MHC is challenging the city's interpretation of the ordinance. MHC's complaint does not directly challenge a state court's factual or legal conclusion. MHC's complaint to the district court is therefore not forbidden for Bid and appeal under Rooker Filman. It's fairly close to the case we have here. And I know this puts you to disadvantage not having read the case. And I want to go back and read it again myself after the argument. But I wanted in fairness because it's an issue we have to deal with to give you an opportunity to comment. Sure. Thank you. You're on it for that opportunity. There are as I've noticed in my preparation for today, there are two kinds of Rooker Felden cases. They are the kind that seem to grow wild in California where California litigants will often name the actual judges. They will name the judges that tried the case. They will name the appellate panel that heard the case. And they'll say they're entitled to have those nasty judges order set aside. That is as Judge Silverman wrote in a case called Marciano. That's somewhat unusual to actually come to the district court and name the judges whose decisions you want set aside on federal constitutional grounds. And it's somewhat unusual to come into federal court and say this is the decision and I want this decision set aside. That's why we have the forbidden de facto appeal doctrine. That's point number two. Most of the cases on Rooker Felden come to the appellate courts in the federal system on the basis that it's the same two, I'm sorry, the same two parties litigating. But as those two parties are litigating, it becomes self evident that they're litigating the very same issues that were at stake in a state court judgment. And on that basis, that is what Judge Fletcher, the second Judge Fletcher, the son called in Noel versus Hall, a forbidden de facto appeal. And if forbidden de facto appeal essentially asks this question, does the relief that the plaintiffs are asking in this case effectively ask the court to go behind and to set aside issues that were decided in the state court judgment? That's what is that issue here in our view? And in that sense, the San Diego or the San Jose cases and any does not challenge that basic proposition? Thank you. I'm sorry, Judge Smith. Thank you. I apologize. Mr. Solomon, back to you

. They are the kind that seem to grow wild in California where California litigants will often name the actual judges. They will name the judges that tried the case. They will name the appellate panel that heard the case. And they'll say they're entitled to have those nasty judges order set aside. That is as Judge Silverman wrote in a case called Marciano. That's somewhat unusual to actually come to the district court and name the judges whose decisions you want set aside on federal constitutional grounds. And it's somewhat unusual to come into federal court and say this is the decision and I want this decision set aside. That's why we have the forbidden de facto appeal doctrine. That's point number two. Most of the cases on Rooker Felden come to the appellate courts in the federal system on the basis that it's the same two, I'm sorry, the same two parties litigating. But as those two parties are litigating, it becomes self evident that they're litigating the very same issues that were at stake in a state court judgment. And on that basis, that is what Judge Fletcher, the second Judge Fletcher, the son called in Noel versus Hall, a forbidden de facto appeal. And if forbidden de facto appeal essentially asks this question, does the relief that the plaintiffs are asking in this case effectively ask the court to go behind and to set aside issues that were decided in the state court judgment? That's what is that issue here in our view? And in that sense, the San Diego or the San Jose cases and any does not challenge that basic proposition? Thank you. I'm sorry, Judge Smith. Thank you. I apologize. Mr. Solomon, back to you. You have a couple of minutes left for a rebuttal. Thank you, Your Honours. According to the Pellini, their interpretation honors is the fact that the San Mons were asking Tealberg to reverse Judge Marton's decision. Judge Marton ruled that we were not right to bring the case to federal court. And the way we interpreted his decision was based on the fact that we had not exhausted state appellate rights, that there have been, and what he believed, that there were still relief pending in the state courts, that there were some relief. And we believe the same thing, that there was some form of relief that we can receive in the state court. But when the state courts refused to listen to the challenge of the Constitutionalty of the code or the application of the code, we found there was no relief that the case was never litigated or the issue on the application of the code to primarily scather was never litigated in any court. The Pellini states that we are having another, that we are trying to bring this before Tealberg as another opportunity. We never had an opportunity in any court, in city court, in state court, even under Judge Marton's court, to present the challenge to the Constitutionalty of the code or the application of this code. So no court has allowed us to speak. When we believed all exhaustive rights were, or all state rights were exhausted at the state level or appellate rights were exhausted and no one was able to hear it. We then brought it before Judge Tealberg stated that we had already litigated it and we never had. So Rucker Feldman also has another part, if I may say, inextricably intertwined. That's another part of Rucker Feldman. The issue that we're having here has not, even if we were to take out the criminal case to this day right now, that challenge or that issue is still pending today. And it must be answered. Thank you, Your Honor. Thank you, Mr

. You have a couple of minutes left for a rebuttal. Thank you, Your Honours. According to the Pellini, their interpretation honors is the fact that the San Mons were asking Tealberg to reverse Judge Marton's decision. Judge Marton ruled that we were not right to bring the case to federal court. And the way we interpreted his decision was based on the fact that we had not exhausted state appellate rights, that there have been, and what he believed, that there were still relief pending in the state courts, that there were some relief. And we believe the same thing, that there was some form of relief that we can receive in the state court. But when the state courts refused to listen to the challenge of the Constitutionalty of the code or the application of the code, we found there was no relief that the case was never litigated or the issue on the application of the code to primarily scather was never litigated in any court. The Pellini states that we are having another, that we are trying to bring this before Tealberg as another opportunity. We never had an opportunity in any court, in city court, in state court, even under Judge Marton's court, to present the challenge to the Constitutionalty of the code or the application of this code. So no court has allowed us to speak. When we believed all exhaustive rights were, or all state rights were exhausted at the state level or appellate rights were exhausted and no one was able to hear it. We then brought it before Judge Tealberg stated that we had already litigated it and we never had. So Rucker Feldman also has another part, if I may say, inextricably intertwined. That's another part of Rucker Feldman. The issue that we're having here has not, even if we were to take out the criminal case to this day right now, that challenge or that issue is still pending today. And it must be answered. Thank you, Your Honor. Thank you, Mr. Holmes. Thank you. The case just started to submit it. Mr. Sullen, I just want to tell you, I want to congratulate you on the presentation. You did better than half the lawyers. We see a new two in the solvent. Thank you very much.

Good morning. Good morning, Your Honours. If you give us your name for the record please. May I please the Court? My name is Michael Salman and a pellant to this case. And the President also is Suzanne Salman, also an appellant and plaintiff to the case. I would like to use with the permission of the Court approximately eight to nine minutes for myself. Suzanne Salman has requested only two to three minutes and whatever time we have left for a rebuttal. Perfect. Thank you. Thank you, Your Honour. We first come to this pellant court because we believe that the federal court aired when they dismissed this case under Rooker Feldman and Ressajudakata. The issue with the plaintiff began in 2007 during which time the defendants had sent letters to the applicants or appellants from 2007 and 2008 to cease and desist Bible studies in their residence. The two the defendant Bible studies constituted church use and since the residence was not a church and did not need commercial codes, it was not permitted in their residence. The plaintiffs informally argued this case with the defendants for approximately two to three years trying to find resolution. It was not until 2010 formal charges were filed against the plaintiff Michael Salman for building code violations. Prior to the trial, a motion to dismiss was filed with the city court stating that the application of the code against the plaintiffs was unconstitutional and specifically stating ARS-41-1493.01 also rule upon the religious land use institutionalized personnel, the First Amendment and against the constitution. This is all found in the exhibits admitted under book one for the trial court. The municipal court judge Sally Gaines replied and I quote, you have some excellent issues for appeal for the constitutionality of the actual city code, but we're not dealing with that right now. Throughout the trial, the city court continued to push off our challenge to their application of the code, refusing to even consider it. It is obvious that the court did not want to deal with this. So when we filed our appeal with the state court under Judge McClennan, the state court came back stating in their opinion an error saying, defendant did not raise any defense bases under ARS-41-1493.01 prior to trial, thus this court may review for fundamental error only. So it is obvious here that the state court also refused an error to consider a challenge to the constitutionality of the code. Well, that's my question. They may have made a mistake. I wouldn't rule that out, but we don't have the authority to sit to correct their mistakes. If the superior court makes a mistake, the next step in the process is the Arizona Court of Appeals. And then if they mess it up, the next step is the Arizona Supreme Court. And they're wrong, then it's the U.S. Supreme Court. We don't have the right to come in and deal with that. If that was the issue or the ability, that would be something we would take, and that is something we did take. We appeal to the appellate Arizona Court of Appeals. The Arizona Court of Appeals reply to us stating that the highest jurisdiction from the city court is the state court. So we cannot go beyond the state court. I mean, if you lost, I guess the Arizona Court of Appeals threw you out for whatever reason, right or wrong. I haven't, don't know, but if you're not happy with what they do, then you go to the Arizona Supreme Court. I understand, Your Honor, but this U.S. Supreme Court. Sure. And I think that is something that we need to understand is this is not, we are not trying to relitigate the criminal case. What we're trying to do is take the foundation of the application of the constitutional code, the application of this code, and challenge that in itself. If you're right about your constitutional arguments, wouldn't that imply that your conviction was invalid? That can be dealt at a different matter. Obviously, we have to challenge the code, the foundation of the code first, and then we can come back and state, well, the other court ruled that this code applied to private religious gatherings is unconstitutional. Yes, but my point is, if we were to say, you know, Mr. Salman's got a valid point all along, wouldn't that imply that your city court conviction was invalid? It would have to be refiled as that, as new evidence. And the problem there is Judge Marton said that we have a case of Supreme Court, as a case called HEC, HECK that says, if a civil case would imply the invulnerability of a criminal conviction, you can't do that. You've got to go back to the criminal case and get the criminal case fixed. Why did Judge Marton throw the case out? Well, HECK, Judge Marton threw the case out because of younger, specifically very younger, even though he did mention HECK, which we do not argue with HECK, because HECK says that we cannot ask for damages under the civil rights USC at the time of 1983, unless we first get an overturn, and then we can ask for damages. So we're not arguing HECK, but we're arguing is the fact that we are challenging the application of this code. Your honor is this application of this code is pending even today. The appellans cannot have Bible studies in their living room outside of the criminal case. Presently, the appellans cannot have Bible studies in their living room unless they conform their property to meet commercial codes. So if we were to have a Bible study in our living room today, and we were to get violated, we'd be back to square number one, into the City of Phoenix Municipal Court, challenging the code again. How do you have any thoughts on whether the arc case of Moldinado versus Harris, as any applicability to this matter? As of, I did not see that case when studying at your honor, to be honest with you, but if it has anything to do with Rucker and Feldman as a pretence, as a foundation, it doesn't apply. Because again, Rucker Feldman's... It actually, actually, the case is very helpful to you. That's why you're saying you have. If you had any thoughts about it. I have not, and can you tell me the case one more time, your honor? Yeah, it's Moldinado versus Harris, 370, Fed 3rd, 945, at 950, and that's a night circuit case from 2004. Wonderful. Thank you, hon. The issue here is there has to be an ability for plaintiffs when they are, or even defendants in a criminal case, to be able to challenge certain issues when they're presented with the threat of jail, or the presented with the threat of fines, etc. How is it with respect? I respect your argument, but in this particular case, what you're dealing with, at least with this court, is a procedural matter. And the real question here, at least for me, is whether the underlying verdict was one of what are called forbidden de facto appeals that's been carved out of Rucker Feldman. Do you have any comment on that? I can't remember it. Are you trained in the law? You're very good at what you're doing, but I'm just asking you do you know about these things or not? You know what I'm talking about with these de facto appeals, the forbidden de facto appeals? Yes, yes, Your Honor. And I think, if I may, Your Honor, I think this has been the issue that has been ever presented before the federal court and any courts, even to this day. Is our presentation of the criminal case is not to ask the court to relitigate the criminal case or to make it a de facto appeal? With respect, I understand that's what you're saying. But in our parlance, you need to fit it within the exceptions to Rucker Feldman. And I'm asking you to help us with that. Sure. Rucker Feldman, the court has narrowed its application and forbids two different types of de facto appeals. I wonder if you have any comment on why your case does not fit into those two categories? I do not have any comment other than what I do know is that in order for something to be appealed, it must be litigated in the first place. That makes sense. And the issue is the constitutional of the city code was never litigated. It was refused to be litigated in the city court by the judge. You tried to litigate it and the judge made a mistake perhaps in not buying your point. Well, that's, I wish that was the case, but the case specifically, and I quote what she stated, was that she was not going to deal with that right now. Would you ask her to? Absolutely. And so that's the mistake that she made and that's the mistake that should have been appealed and if you're right, you would have won. Exactly, Your Honor. And we did appeal it. We appealed it to the state court. Right. And the state court came back and said, we didn't even raise the issue. Well, again, if they're wrong, I've been through this before, but you know, then you go up to the chain. We're not part of the chain. The next chain is the Pelacorte and the Pelacorte has no jurisdiction in the case. Again, Your Honor, under the Arizona rules, the highest a person can appeal from the city court is a state court. You cannot appeal to the Arizona Court of Appeals in the Supreme Court. That may have been, that may have been an option, but in this case, we decided to take it to federal court. Actually, we took it to that's the problem. I mean, that's well, Your Honor, we took it to federal court right after this trial court. We took it to federal court under Judge Marton. And we requested Judge Marton to look at the code and to, and we challenged the code. Judge Marton said, well, it's still in it. It's still in the court of appeals. So we can't look at it because it's pending state proceedings at this time. You must exhaust state proceedings prior to coming to federal court, which when the court of appeals returned to reply stating that they cannot hear it because they have no jurisdiction, we then went and refiled the federal case. And that's when Judge Tealberg listened to it. And then he said, well, it was already litigated. It wasn't already litigated. The state court, the state superior court made an errand said that we did not even bring up a defense. It was as, and excuse my outlook on this, as if the judge did not even read the pretrial motion. He should have considered it. They have an obligations, judges have an obligations to listen to the challenge of the foundation of the code that's being applied to a criminal case. And when there's challenges to it, you cannot just ignore them and say, I'm not going to listen to that. I'm not going to hear that right now, or to state in her, in her transcripts, to state something like, I cannot change the law. The City Council has decided these are the codes, and I can only uphold the code. I know as you said at the beginning, you wanted to give Ms. Salman an opportunity to, would this be a good time to pass the baton? Yes, sir. Okay, thank you. Thank you. Good morning. Good morning, Your Honours. May I please the court? My name is Suzanne Salman, and I am also a plaintiff in this case. I would just briefly like to add to what's already been said, that this is an issue that has continued to have effect on me and my family. This is an issue that must be addressed so that citizens have a right to gather in their homes privately without fear of prosecution. We are continually informed by the defendant that the only resolution to this matter is to convert my home into a church. There are house churches and home Bible studies all over this nation. People should have the right to gather, and the federal court should have considered my present rights and interest in this case. Even though I am married to Michael Salman, I am not immune from also being prosecuted in the future for holding home Bible studies. And I will add that the City of Phoenix did also warn me of that. They told me they said, if you continue on in this matter, we have the right to prosecute you as well for having a Bible study in our home. Restricting religious gathering is unconstitutional, and I would ask that this court remand this case back to the federal court so it can be heard so that we can litigate these issues. I would like this court to understand that even though there have been no charges brought against me personally at this time, I know that if I choose to exercise my faith at home, charges are inevitable. This has had a chilling effect on me and anyone who has a house church or chooses to re-excuse me, exercise their religious freedom from their home. So this case is not just about what happened, it's about what continues to happen, it's about what has happened in the past and the threats that we've had and the threats we continue to have if we want to have a Bible study in our home. Thank you. Thank you. So, for the city? Your honor, please, the court. My name is Brad Holm. I represent the Apollee City of Phoenix. Thank you for the opportunity to present our position today. The issue in this case is whether the court should grant the solmums another opportunity to argue that the Phoenix building codes on their face violate the solmums religious liberties. Let me suggest to you that the question should be taken. We're talking to, go ahead, did well. Let me see, I haven't asked what, yeah, I don't know. You're up. It's definitely Judge Wallace's turn. Yeah. Thank you. Senior already does help. I think the question to my mind is a little more defined and that is whether the District Court committed an error in applying Rooker Filman. And so if you could focus on that issue, I'd be helpful. I'm somewhat concerned that a case that appears to me to be right on point, a nine-circuit case manufactured home communities versus city of San Jose. A 205 case was not cited by either side. In that case, Judge Fletcher, Betty Fletcher, now deceased, focused on the issue and it was as the issue is here that it involved a city. And the holding is very negative for the Apollee in this case. Are you familiar with that case? Your Honor, I am not familiar with that case. There are a legion of cases on Rooker Filman and the nine-circuit as well as across the other circuits and just a handful of the Supreme Court levels, you know. Yes, I understand that. But this one appears to be right on point where a city is involved and the trial court applied Rooker Filman and we reversed. Well, Your Honor, may I address my Rooker Filman argument then? Please. I apologize that I'm not familiar with that case. Here's the Rooker Filman argument. The trial court really dismissed the district court dismissed on two grounds, two significant grounds. I'll skip to the Rooker Filman one first, but I'd like to come back if I get a chance to to talk about the federal preclusion ground. Because that really went to Judge Teoborg's sense that he did not have a pellet jurisdiction over Martones order. And really, he is a court of original jurisdiction, not a court of a pellet jurisdiction. And effectively what the Salmons did in the Teoborg matter is they asked Martone, they asked Teoborg to reverse a central poor claim and a set of issues and a set of remedies that were asked for in the Martone matter that Martone refused to grant. Going to Rooker Filman. With respect to the Rooker Filman issue, Your Honor, number one. This is not an Exxon mobile case. They argue in their briefs that it is because they argue that in Exxon mobile there was under the second judge fletcher, the Sun's case, the Noel case, but there was an independent claim. This is not an independent claim case for this reason. The independent claim analysis that they have in their briefs, I apologize, the independent claim analysis that they have in their briefs is based on the notion that they were only seeking prospective injunctive relief against the enforcement of the building code ordinance. To do that, they have to make some kind of on its face, unconstitutionality argument. And they tried to do that in the district court in front of Teoborg, but as the record from that case clearly shows, Teoborg couldn't figure out what they were arguing on its face. This building code adopted by numerous jurisdictions around the country, what that argument was, and they couldn't articulate it. And they have abandoned that on appeal. There's no argument on appeal. You understand your point. You're saying that in the four winter factors, they couldn't show the first. That's right. You're trying to get the injunctive relief, is that right? That's right. That's what the Teoborg rule. All right. So with respect, though, back to Rooker Feldman, Rooker Feldman has in it this independent claim argument that they make. That's the only one of all the exceptions to Rooker Feldman that they articulate at all. They say that they've got an independent claim that albeit challenges a legal conclusion of a state courted adjudication. They never articulate what that claim is. They don't say what the claim is. They don't say what the authority is for that claim. Instead, they sort of leave it to you to read between the lines. But the reading between the lines suggests that they believe they have an on its face constitutional challenge to the building code. Did your position at Rooker Feldman bars the what would amount to a de facto appeal of Mr. Solomon's criminal conviction? Yes. Okay. How does that affect Mrs. Solomon? Well, good point, Your Honor. Let's go back to point number one on the basis on which the case was originally dismissed. Judge Teoborg dismissed it. He dismissed it on the ground that there were that the issue of the perspective enforcement of the building code against the Solomon's was before Judge Marton. And before Judge Marton, the argument was that that was a perspective claim and therefore it was an independent claim under younger. And therefore he shouldn't dismiss it under younger. They argue that and in Marton's opinion reported on West Law, it's very clear that he understands that they're arguing that they have a perspective claim that's not barred by younger. He goes ahead and dismisses that so-called independent claim, applying younger. If that was a mistake, then the proper remedy for that mistake was direct appeal not collateral attack, as you know. So my argument is that the independent claim that they argued in front of Marton is the same kind of independent claim they're arguing as the exception to record Feldman in this case. And because they argued and lost that claim in front of Marton and because their argument was it wasn't a proper claim for extension under younger, it should have come to this court at that time. And that's essentially what two of Borkhelt. Let me ask you on that particular question whether there was a final determination by Judge Marton. If you look at the order granting, he says, all claims are dismissed without prejudice. All claims are dismissed without prejudice. Now, it's just Hornbuklaw that there's an action and there's a complaint and if you dismiss the complaint without prejudice, what you're saying is you can refile another complaint. The action by Judge Marton wasn't. Now, admittedly, sometimes the clerk's office gets a little filed up. But I'm not being critical. It's just that they aren't schooled in the difference between the action and the complaint. And strikingly, when we get to Judge Tealberg's, he says the case, the case, whatever the case means, is dismissed without prejudice. And then it says the clerk shall enter judgment accordingly. Now, I don't know if you sure we have jurisdiction based upon that statement. But it's least in the process of looking at what Judge Marton did, it seems to me that he did not suggest that there would be a finalization. That is that the action would be dismissed, but only that there could refile. Can you help me with that? It's sort of difficult for me to understand your argument based upon the record. No, no, it's a fair question to ask your honor. Let me address that directly. So Judge Tealberg cited a case called Offshore Sportswear, which introduced, didn't introduce for the first time, but discussed the doctrine of collaboratively final orders. In our brief, we emphasize collaboratively final orders without citing Halic, which is the United States Supreme Court decision. Clearly, the development of the law at the time that offshore sportswear was decided suggests that collaboratively final orders might have more breadth than the Supreme Court subsequently decided in Halic. So when you look at the question that you've raised, Judge Wallace, the answer to that is in a case of this circuit called California Department of Water Resources versus PowerX Court. And they're citing the idle wild, bond voyage liquor court case. This court held in no uncertain terms that when a district court order places the parties effectively out of court, it is final and appealable. That's what Mark Tone's order did. It placed the parties out of court. How is that when he says dismissed without prejudice, isn't he saying you can file another complaint in this action? That's right. He is. But the question is, did he quote effectively, did he place those parties, quote, effectively out of court, close quote? If he did, then the order is final and appealable. The Supreme Court revisited that issue in a case called Quackenbush. And in Quackenbush, the court specifically held that in an abstention case that results in a remand to state court. So it was a court, a case that was removed to federal court. But then the federal court, the district court decided under Colorado River abstention that the court should abstain and the matter should be remanded to state court. The United States Supreme Court said in that case that the order essentially abstaining was appealable. So here I don't think there's any question under those two decisions that Judge Mark Tone's order was appealable. So then the question is, can they take that claim that they asserted in Mark Tone's court and instead of appealing it to the Ninth Circuit, come to Judge Teoborg and effectively through a horizontal appeal to the same level of judicial district, could they come to Judge Teoborg and ask him to reverse it. And that's point one in his decision that he did, he analyzed it in terms of federal preclusion law. But what he was really saying, I think, is that he did not have a pallet jurisdiction, horizontal appellate jurisdiction. Did he say that? He did not say that, you're on it. I can say the other interpretation of that is that he improperly failed to take into account that what had been done by Mark Tone was to dismiss without prejudice, which is my colleague indicated would allow these folks to refile. And in this case in Teoborg's court, I get your point about there's another way to look at it, but it is the idea that they could file the claim in another court because this missile was without prejudice is certainly not laughable, is it? It's not laughable, but here's the gut argument. The gut check for this panel in my opinion is this. In Offshare Shore Sportswear, you'll remember that the issue was a forum selection clause. It was litigated as a separate issue to determine jurisdiction and decide it. So hence the first case was dismissed without prejudice. What ends up happening through a bunch of convolution is that the plaintiff disappointed there, a fair fowls in state court, gets removed, and then it comes eventually to this court again because the district court dismisses it again, even though it had not been dismissed with prejudice the first time around. And when it gets here, this court says the telling language from the claim cases is that what the plaintiff in that case did is they came back into federal court a second time on the proposition that the first federal determination was meaningless. And that's what the Salman's did here. They came back into Teal Board's Court based on that proposition that Marton's decision was meaningless. But in Marton's Court, he recognized he was being asked to declare that the building code on its face was unconstitutional and that was a separate independent issue from the attempt to undo the convictions and incarceration, which was younger abstention, the younger abstention issue. In fact, he says in his opinion, the opinion on West Law, that because they realized they were going to lose on younger abstention before Marton, they couldn't challenge their convictions there. He said, quote, they are not requesting, they say, that their convictions for ordinance violations be overturned, but instead want to establish the existence of their constitutional rights and determine whether the ordinances and building codes as written violate those rights, close quote. So that's the independent claim they say was not subject to younger abstention. And so the dismissal of it, therefore by their argument, was error. That dismissal should have been appealed to this court. Instead, they bring the same claim over in front of Teal Board and say, do now what Marton didn't do. And if you do that, then you turn federal jurisprudence and management of the courts on its head. And allow that against the litigate over and over again. I apologize, Judge Hall. How does that end in getting us jurisdiction on the Teal Board case? This is a little confusing. As I indicated, Judge Tealberg said, is to dismiss the cases, to dismiss without prejudice. Ordinarily, that would end it until they filed another complaint. But in the judgment that's entered by the clerk's office, they say the complaint and action are dismissed without prejudice. Of course, if the actions are dismissed, it's with prejudice. Now, we have a record here that I'm not sure we have jurisdiction. Is there some way we can decide this case? That is, is what Judge Tealberg did and what the clerk's office did sufficient to make it final so that we can have jurisdiction? I go back to the Idle Wild Case, the California Department of Water Resources case, and Quackenbush. Long story short, is these plaintiffs were thrown out of federal court by their estimation. On that basis, they're entitled to, I'm sorry, my time's up here on it. I finished. On that basis, they're entitled to, to come to this court to determine whether the decision on jurisdiction by the district court was valid. So a district court always has jurisdiction to determinants jurisdiction. It determined it wrong. These plaintiffs claim, and so now they're here. My view is you have jurisdiction, and you should affirm, and I would ask the court to do that. Before you leave on my time, so you believe that the decision by Tealberg is a final decision? It is a final decision with respect to jurisdiction. About the right. Without our jurisdiction. Your jurisdiction. Okay. Let me ask you just one answer. Will it judge Wallace's position? Let me ask you one other question. Having to do with the Rooker Filman. I alerted your opposition of this case by Judge B. Fletcher, a manufacturing home, and neither side cited. So I'm not sure you're familiar with that case. I'm not. You're on. Let me just read one part of it so you can see the problem that I need an answer to and why I'd like I'm happy to have you here. Because I haven't made up my mind. But it says here, MCH sues the city of San Jose, an adverse party, not a state court. MHC is challenging the city's interpretation of the ordinance. MHC's complaint does not directly challenge a state court's factual or legal conclusion. MHC's complaint to the district court is therefore not forbidden for Bid and appeal under Rooker Filman. It's fairly close to the case we have here. And I know this puts you to disadvantage not having read the case. And I want to go back and read it again myself after the argument. But I wanted in fairness because it's an issue we have to deal with to give you an opportunity to comment. Sure. Thank you. You're on it for that opportunity. There are as I've noticed in my preparation for today, there are two kinds of Rooker Felden cases. They are the kind that seem to grow wild in California where California litigants will often name the actual judges. They will name the judges that tried the case. They will name the appellate panel that heard the case. And they'll say they're entitled to have those nasty judges order set aside. That is as Judge Silverman wrote in a case called Marciano. That's somewhat unusual to actually come to the district court and name the judges whose decisions you want set aside on federal constitutional grounds. And it's somewhat unusual to come into federal court and say this is the decision and I want this decision set aside. That's why we have the forbidden de facto appeal doctrine. That's point number two. Most of the cases on Rooker Felden come to the appellate courts in the federal system on the basis that it's the same two, I'm sorry, the same two parties litigating. But as those two parties are litigating, it becomes self evident that they're litigating the very same issues that were at stake in a state court judgment. And on that basis, that is what Judge Fletcher, the second Judge Fletcher, the son called in Noel versus Hall, a forbidden de facto appeal. And if forbidden de facto appeal essentially asks this question, does the relief that the plaintiffs are asking in this case effectively ask the court to go behind and to set aside issues that were decided in the state court judgment? That's what is that issue here in our view? And in that sense, the San Diego or the San Jose cases and any does not challenge that basic proposition? Thank you. I'm sorry, Judge Smith. Thank you. I apologize. Mr. Solomon, back to you. You have a couple of minutes left for a rebuttal. Thank you, Your Honours. According to the Pellini, their interpretation honors is the fact that the San Mons were asking Tealberg to reverse Judge Marton's decision. Judge Marton ruled that we were not right to bring the case to federal court. And the way we interpreted his decision was based on the fact that we had not exhausted state appellate rights, that there have been, and what he believed, that there were still relief pending in the state courts, that there were some relief. And we believe the same thing, that there was some form of relief that we can receive in the state court. But when the state courts refused to listen to the challenge of the Constitutionalty of the code or the application of the code, we found there was no relief that the case was never litigated or the issue on the application of the code to primarily scather was never litigated in any court. The Pellini states that we are having another, that we are trying to bring this before Tealberg as another opportunity. We never had an opportunity in any court, in city court, in state court, even under Judge Marton's court, to present the challenge to the Constitutionalty of the code or the application of this code. So no court has allowed us to speak. When we believed all exhaustive rights were, or all state rights were exhausted at the state level or appellate rights were exhausted and no one was able to hear it. We then brought it before Judge Tealberg stated that we had already litigated it and we never had. So Rucker Feldman also has another part, if I may say, inextricably intertwined. That's another part of Rucker Feldman. The issue that we're having here has not, even if we were to take out the criminal case to this day right now, that challenge or that issue is still pending today. And it must be answered. Thank you, Your Honor. Thank you, Mr. Holmes. Thank you. The case just started to submit it. Mr. Sullen, I just want to tell you, I want to congratulate you on the presentation. You did better than half the lawyers. We see a new two in the solvent. Thank you very much