mr glad when you're ready good afternoon my police record the primary issue i think i'm going to be able to talk to today within our time limits as to the question of whether the asserted right to  home is of sufficient importance to warrant analysis under the test set out in math is nigh three years versus eldritch concerning procedural due  process the district court in this case found that it had to be a fundamental constitutional right that is one that would pass the glucksberg test of being deeply rooted  and so deeply rooted and traditional in the histories of our nation that civilized society basically couldn't exist without its recognition that issue i actually was an issue in kerry versus death which resulted in a fractured decision by the u s supreme court one opinion was written for the court for the result by justice allow these verses eldritch liberty interest if they are fundamental there is a separate opinion joined by it was actually a dissenting opinion joined by four justices that was written by justice briar that pointed out that live very long time in the courts history liberty enters could be something less than fundamental liberty interest and b and warrant procedural due process  is is that we're entitled to an individual assessment because the right to establish a home is sufficient to warrant i notice an opportunity to be heard so long as the other components of matthews versus elder such as the risk of an  issue to be what would the substantive issue to be tried you know that you want to proceed i think it would be similar to as a matter of fact your opinion for the court in maser versus livingston where you'd have some level maybe not as  but or more see vs for something of that nature i know in texas we have driver's license suspension hearings as a result of bell versus burson which i think it's probably a lesser liberty interest than what we're dealing with  case and it can be and worse you have to go much versus locus where you have school suspensions and things of that nature there's a whole continuum of different kinds of formality that might or might not be required we think that it should be at case that that the city brings up in their decision yes i don't agree that that would preterm it the question of a liberty interest that would just say well your client received full and fair opportunity to challenge his status in turn with no number one not a deprivation of a right to reside somewhere and smith versus doe where they actually talk about registration they distinguish it from the ability of a person to choose where to live they actually put that in right but parole circumstances occur all the time based on this issue this is not a protest at all but parole but but it's the exact same it's the equivalent you're being taught where you and i know you can associate with i would agree respectfully i think that you have a continuum of liberty one category people in prison and i feel it was talked about in the music is people in prison people on pro people that are no longer on parole and of course you could even have people that have never gotten a traffic ticket i guess if you want to but texas is saying all sex offenders that's right that's right without bleeding into the equal protection argument what maybe just answer my question what is wrong about judge colleges reasoning in the miller decision and what's in the  and it takes me a while to describe it i know there's a number of different claims ex post facto which no no just on the procedure due process that i don't agree that a prior criminal conviction for ever after disposes of any and all the liberty interest of a person for ever to choose where to live and the reason why i say that is as because when people are no longer on parole or probation they have a greater liberty interest and then someone who's even on parole or probation and it was discussed in maser versus livingston it's been discussed in a lot of different cases and even the supr california and in retail are found that people on parole have a liberty interest to be free from these residency restrictions unless they had it more in tight or unless they acquired an individual honest assessment not a blanket one size fits all so that would be my reason for saying the majority opinion or the decision in the court of appeals decision in miller was an error i'm i'm going on all fours and agree with the district court's decision that was reversed neither a find that these residency restrictions among others were ex post facto punishment because there's a difference between these type of restrictions and just merely require someone to register because when you  handling it is a more drug without a question of when the conditions were imposed or cetera et cetera when yes i may be more fundamentally since you're familiar with all these cases right appreciate that connecticut versus joe where where is it rank with suz just says we're go put aside whether there's a liberty interest because there is some complication in our case law if you're convicted the stigma alone doesn't give you a liberty edges the stigma plus does but why wouldn't we in this case put aside the question and just say did your client receive the process he's claiming and here when he had the op do not know if he pled guilty or went to trial ok the registration is a different climb to liberty than is the right to establish a home there is no this court had never said and not many courts actually except for alaska i guess had said that you have a liberty interest reputational enters which is what involved what's involved in registration in this case we've got not only the right to strike but we've got a wife and children where the family either has to break up or they have to find someplace else to live and you know this court not only in i guess i'm just still focused on the process given for the end smith versus no and connecticut versus the oh yes there was not a need for procedural due process because there was not a sufficient liberty interest because of the rubric about stigma clause or whatever because it was a reputational harm kind of client i went through your brief to say well what where's the signal from you either for legal authority or for it just practically what the process would be and as i see it it's just in your foot i think it was footnote sixty four you said well the city could have voluntary committees that would right now that create themselves and adjudicate this cager isness is before the court of appeals on a motion for summ judgment filed vom opposing counsel they did not claim that they are entitled to judgment on the other two prongs of the manties forces eldridge they only claimed their only argument was and the only ruling by the district court on the process in texas to get out from under the sexual offender provision and you know after you're convicted in your declare a sex offender in there somewhere you can can some procedure to  terminate sex offender status not meaningful it was only adequate to continue for the state of texas to receive their federal funding from the federal government i went to a seminar just about a week ago with an expert about the longer a sex offender then it is there's two categories some people have to register for ten years after they discharge their senna's or finish their probation or parole and then there's another category you have to register for l and they're at their end response to the threat of the federal government cutting off federal funding for the crime control under the crime control bill they eventually succumbed to the pressure and adopted a procedure this very byzantine been only just a few less than a handful of people in the ten or twelve years that have somehow gotten through this procedure because there are so many qualifications if you mash them all up there's nobody left and but that's a matter of state law and we're not challenging the registration we're talking about the whether other if need has to be an individual assessment when you are going to take away a liberty interest and the process that the city of los feliz adopted like many other cities and taxes in fact virtually all of them as a blanket rule where we're just going to legislate later declaration claim that everybody who has to register just automatically can't live in our town well can't that's a broad statement well ok didn't challenges clear error the district court magistrate finding that there are areas well that was actually came up on the first bill and that was clearly erroneous on the first appeal the evidence is the same as i pointed out is point out tucson you've got the map i presented to you there's thirty seven thousand some odd homes i just rates kick separate factually the city's representations that there had been and that's not i don't believe that's true i don't believe that's true in this  e i think it was the same time of argument about there are so many houses that could be available at some point in time they're not available because they're all occupied but if you look at just the number of homes know it's a perceived i agree with you if you've got a liberty interest established a home i don't think it's relevant that you may be able to go to another state from home or go to the moon for a home if the supreme court says you have a liberty interest the relative of that if you i don't think we should resolve this by everybody deciding what percentile of available homes there has to be before there's a deprivation of the liberty interest there either is or there isn't and  i know that in the maze a case there is an argument by the attorney general's office of taxes that it's a question of this procedure versus this kind of deprivation versus that kind of deprivation in sex offender conditions and that's not what we're dealing with here we're talking about a liberty interest to establish a home and having a blanket thing where everybody who has to register for also there is no individual was assessed and is if you are on probation or convicted of a numerated list of offenses under state please the court the crux of the appellant's case involves a simple issue of whether convicted child sex offenders have a constitutionally protected right a liberty interest to live where they please particularly in places legally protected places where children commonly gather like parks do you agree with them that what we're dealing only with in this field is the liberty interest and not dealing with the method of the  be eldritch hearing our own we're not dealing with one who would be on this committee or any of this where only dealing with is their own liberty interest think that's the threshold question whether there is a liberty interest involved in the issue has been addressed several times by the courts the interest in living precisely where one wants wants to or chooses not fundamental within our constitutional scheme precisely can you can you kick somebody out of the town are ordinates there's work there's no evidence in this record about that and that's not in front of this court that's really goes to the next post you're going to defend this is a fun whether it's fundamental or not that question is relevant what your answer legally to that question could a city american ordinance that would banish people based on their well banishment concept is what i understand in part of the of the ex post facto claim which has been abandoned is not in front of this court now they're not talking about ex post facto i'm talking about up front can you say going forward we're going to banish people who do this act or whatever they're forever banished from our town and it could be they haven't done it yet in going forward so there's no act well they just in front of this court deals with a triggering of that which is if there's a convicted child sex offender required to register with the state no matter what his level has been assessed that by the state the ordinance applies and there's there's reason that it applies to protect children which are the most vulnerable people in our society and so there's a compelling interest to do that in their findings in this ordinance that give legitimate compelling reasons for the city to be able to do that right we're and we're not at all i don't want you to take some hostility towards interests of children in answering asking questions that certainly not that is not the intent of the questions and we're not dealing with whether there was a compelling interest in passing the statue right now i don't think we're analyzing that yet i mean there might be a strict strict scrutiny question later but i'm just trying to right now figure out is the test you when you say that you don't have a right to it precisely in the home that you want but do you have a right to not be banished from the community and it want point do you get between was here there's not any evidence of that in the record the evidence shows we put it in the record our courts first decision is a public decision right and they say your view of the facts is clearly erroneous that review of the record would reveal that only nine homes were for sale or rent outside the buffer zone so you have to accept that if you if you look forward in what say what's in the summary judgment record which was after that opinion we put in evidence  and therefore that was as a result a footnote to it was litigated the issues not forces that your position that there is ample housing available yet if you look at the summary judgment record there is help ample housing available what i don't know that was on the street it's actually in front of the district in the magistrate court that's in front of the court this court today is there a rational basis for the distinction between sex offenders who can and cannot seek a hearing well i think i think you're talking about the equal protection claim if i understand you correctly and there is no distinction between this this alleged distinction in our organs our ordinance the city's ordinance deals with one thing which is convicted child sex offenders regardless of whatever their position or assessment is by the state and they have to register by the state if that they meet that condition then the ordinance applies to them one and all equally without distinction so i don't see that the ordinance makes class of any defendant like war take could never there's nothing he could do to meet he's excluded from because he's no longer on supervision i understand what i'm saying out of classification there's no way he can accomplish that and understand i don't think it is a classic case and i think it applies to no matter what assessment or what supervision there is there's there are six affirmative defense is an ordinance that only deals with one of them and i don't i can't see that then if that's the case then there are six classifications from our ordinance our classification deals with one thing which is convicted child child sex offenders and whether they have to be registered with the state and if so then other other issues apply in that the city is going to give deference in that instance the city is going to give deference to the convicting court if there's a hearing so that that that judge can to term for whatever reason there are multiple reasons that the one thousand foot restriction based upon the state doesn't apply and if that's true the city's going to difference it makes sense to me just superficially cities drawn distinctions people still under supervision people not and the argument would be there's a rational basis for that classification because one set of those defend it's still under control can move to modify we're doing bad things can be revoked which i think was apathy toward today so there would be a rational basis but it wouldn't be denying the existence of a classification community supervision but he was revoked it was his is he was revoked he was sent to prison and then he served for three years and then he's out now he's still has to report to the communities and that's that's  these guys who are under supervision i have a bright that i don't yet understand and i'm saying i don't think that's a classification that i don't think it's a class cation for for equal protection i understand that counterintuitive at least people currently under active supervision are treated better than the people who are fully discharged i don't know that they are treated better the issue is if you're a convicted child sex offender then there are areas fifteen hundred foot zones that you can't live with then in most of them with parts and schools and rec centers etc so it doesn't have doesn't have anything to do with whether they're on supervision or not is that if it goes forward and and they want to argue that defense affirmative defense that's their burden and they can do that if they if they choose but he can't ever argue it and i can understand but inside my child who's in this school and it's a magnet school or a special good school my child has a special need and has to be in this school and please can we live here and i'll do extra conditions if you just let my child live in this place where is this person over here can't do any of that i understand and know i can hear your compelling statement that you're making but someone's have restrictions on their rights that other people don't they don't necessarily are able to serve on  issue yeah the the way i'm looking at it is there's a rational basis for this woman's ok then is to protect children so through time strict scrutiny if it had to i think i think it's eight circuit yes so that wouldn't require us to decide the more complicated stigma plus liberty interest question i don't what i recall about nor is that that dealt with whether the whether right to live somewhere is a protected and they held that it was not whether i think they held that you had to do defend it when he was had the opportunity to challenge his conviction had full process and therefore the court assumed argue endo but do that here and i'm interested in your telling me that you did argue that is an alternative ground and you persist with that but you favor funny to the defended you are to have no liberty has no liberty interest at all yeah that fair it is fair to say that we do not believe there is any liberty interest at stake in this case in that there's no due process it's due as a basis if we were to find there is a liberty interest under maze a comin jennings if we read those cases to suggest there is one given the restrictions that the sixth circuit just looked at in analogous ones do you still win or not because he had his process is full and therapy duty so he had process that was due and we did argue this in the summary judgment motion  in the underlying case he had process that was doing was given that he was tried and convicted by a jury so you know that process has been has has taken place in speaking about the rights of the dangerous hearing there that's been addressed by two courts of appeals that i that i'm aware of the eighth circuit in the second circuit and they both say that that's a fact that's not relevant to the regulatory  and don't and don't think it's that it's a  about how when these it when these ordinances these laws are passed that the council or the state legislatures are making legislative decisions that apply to all convicted child sex offenders as long as they're required to register with the state and so that we don't believe that type of hearing first of all is required secondly proclamation for how that would happen but he said the record suggests in the brief that a city called westlake something does just that but there is a city that does that and in the briefings opposing counsel mention i forget the name of the city westlake so there may be one city in texas that has that process ob that's almost all my practice is representing local governments and i'm not i'm not aware of any city well the federal i mean those that the exemption you not it's system i write that the record said his residency restrictions and in two thousand and twenty or of i just that's my recollection as your reps my recollection of of what's on the record yes and tell me about there is a procedure for him to short as my understanding that that that timeframe is then dictated by the state it has nothing do with the city ordinance i don't mean there i mean but can you go to some procedure of the state of eighth circuit said in that case we cannot agree that the right to choose one place of one's place of residence is necessarily a fundamental right case is too numerous to mention have a public strictures on this interest the eighth circuit again  yes the state states could i think some states have it's my understanding texas has not and whether that's going to be up in the next legislative session in the spring i'm not sure but they could have a residency or strips and  we know that this zoning is an established police power that regulates and restricts where within a city a person may reside cities may establish zoning districts under police power to safeguard health safety and general welfare of its citizens the principle of regulating buffer buffer or protective zones in this case to restrict where convicted child sex offenders may reside the simply an extension of zoning law it's no different expressly abandoned all the claims except for equal protection and due process the district judge dismissed all the claims all of them including the one thousand nine hundred three claim in this court if you look at the three issues that are in their brief there nothing in there about the district court airing in dismissing the one thousand nine hundred three claim there's no there's no analysis or briefing on it in their brief at all and they say they waive everything on appeal except for due process and equal and even if even if this court found that there is any due process violation of the actionable or equal protection because that nine hundred eighty three is not there to effectuate that constitutional right district court prevail the theory of municipal liability which was not even raised in a motion for summary judgment between the magistrates recommendation and when we objected to the district court we intentionally said we're not going to continue with the ex post facto kline the double jeopardy clause and i think that's what the district court understood there was not any discussion in their motion for summary judgment they made no therefore did not waive anything by not briefing municipal liability on appeal etc now back to the other the next thing i want to deal with briefly the sign that the city is claiming that there may or may not be additional houses now than there was in two thousand and twelve and prior to two thousand and twelve is not relevant in this case because our claim is the damages that occurred prior to two thousand and twelve which was before the court of appeals decision on the last time we were here and so the question is whether we had a liberty interest prior to two thousand and twelve you got the map for two thousand and twelve you got a prior decision saying there were nine homes out of thirty seven thousand homes that's where i came up with a point two five i don't think the availability of housing and i don't think the rules should be is where there should be point zero two five or something more than point two five the question is whether you're going to hear to the us supreme court cases that say establishing your home is a liberty interest in fact they say it's a fundamental liberty interest but we don't think the court has to reach it you just have to say that it is sufficiently important that you must continue the analysis under matthews versus eldritch try to mention a minute ago this court actually encode brawl ca b r o l versus town of youngsville which i didn't cite in the br one of six fred third one one expressly states that the fourteenth amendment includes the liberty interest of an individual to establish a home and position in one's community i don't know how much clearer you can be past he separate injury that's correct an error or whether he has a he would have to show knowledge procedural due process of course he'd be entitled to nominal damages even under kerry versus potus even if he wasn't able all the plaintiffs were able to show  anything more than nominal damages or a constitutional violation that's why it wasn't moot the last time around is because in the court didn't have to get into perspective what both were released is because we did have the damage going so what he's saying about any change in the number of homes that existed from two thousand and forward that's just irrelevant to our dama of those were all subs and have due process cases and one of the quotes he provided says it's not a fundamental right to choose where you live but none of those cases addressed my or versus nebraska or the numerous cases since then all of  have said you have a liberty interest to establish a home all they did was it was kind of once all the other and they're mostly small of course of course i've told you that the california supreme court ruled in within the last year that even people on parole have a liberty interest that they are deprived of with these residency restriction ordinances and so when he says there's not any cases out there and i cite other cases that under state constitutional provisions found that the liberty interest those are in my br it and they came up with some kind of to avoid conflict conflict with a state court district judge the state and probation condition doesn't regulate where someone can live and the ordinance does and so the fact that a district judge may say you can go physically wherever you want to does not would never conflict with whether you can live somewhere within fifteen hundred feet and so there just is no legitimate justification appreciate your time a different analysis would apply for someone who's not on parole or probation that those people would have a liberty interest to be free from sex offender conditions that was on your question on the bottle by the attorney general's office in geneva she sounds like a thank you gentleman bri