here on the have passed the county this case is here because of the court knows for the second time four and a half years ago mr smoker myself and judge show flat were here and argued this case on a finding by judge merit facial claim send it back to the district court the district court received motions for summary judgment and eighteen months after receiving the motions for summary judgment ruled that the ordinance was however going back to the time is before the court on the facial claim said that had he the magistrate breached the issue the magistrate would have granted a summary judgment because this i as i see it one there was a partial settlement between the county and the department of transportation agreed to pay to purchase from hillcrest the southern one hundred feet of the property for four point seven million dollars to we know that no injunctive relief was entered three we know that there are no damages here other than one dollar in nominal damages if that's the case what's left why is this case still alive under two fold the first thing that there is the declaration that the ordinance is far as the declaratory judgment if the case is otherwise dead i don't think you can breathe life into it simply by seeking an abstract declaration of the various rights and obligations of the parties you follow what i'm i'm sort of asking but it looked to me no one junk the relief settlement already here payment made out the only damage is being sought is one dollar in nominal damages and the only reason for the one dollar nominal damages was to save the possibility of attorney's fees maybe i've missed that honor we are not party seeking attorneys nor i understand that but i'm trying to see whether this case is alive i think that plus the impact of it what it four reasons we also think that the case has been settled because count two which is labeled substantive due process can out in our judgment as judge show flight said mckinney be paid you ought to look at what it actually is not what the plaintiff styles it be and although it's labeled subs into due process it's really a taking scale and it's really a taking scout because it goes back to it was their choice not to continue on it basically pursuing what remedies they behead under the ordinance as applied but it's a taking really taking claim which is barred by the settlement agreement that is the narrow basis for doing that because judge our justice scalia basically viewed substantive due process as an oxymoron basically and so he drafted the nolan decision which led to the dolan decision which is wh million dollars which is far more by the way as an aside and it's in the record the hundred and one thousand dollars that they paid for the property but for reasons as a matter of the wall why they even assume of that they could get to subsidy due process claim doesn't apply is the first reason is that due process substantive due process utmost restraint there's and we've cited case after case after case of us supreme court cases and what in the u s court of appeals cases seventy five percent are cases come from those two controlling jurisdictions like most restraint judge married a what he said here i don't know if it's a substantive due process claim or anything else is just wrong and i don't like it i'm going to label it and send it up to the eleventh u s court of appeals and let them decide so what moves restraint was not applied just the contrary of that the second reason is that  basically substantive due process protects against marriage family bodily integrity abortion procreation those type decisions as opposed as this court noted back in mckinney the hate which by the way has been cited maybe the court knows one thousand and eighty nine times time after time after time mckinney be paid as been cited and m paid the cases it never overruled never criticized always followed and followed most recently on september thirteenth of this year in a decision by this court and mckinney v pate says that you've got to have a property and new property just a bit like why why isn't an interest in the use of real property why isn't that sort of like old school blackstone common law property which i would assume the due process wou according to the president of this court your honor there's three cases and that's the argument which so kress makes but there's three cases ossie which judge show flat was on the panel and that case involved the taking of lands no substantive due process that's followed by prescott and bailey which is our side of the arcade only difficulty i have with that is that's unpublished was unpublished i mean like what's the what's your best published case for the notion that interest in the use of real property doesn't get on if you want to and this of course is granting that substantive due process is even relevant here but if it is if substantive due process protects in some interest in property per the language of the provision and isn't this sort of more an old property case than a new case they would plain that this is old property and land is old property but basically there's eight or nine cases which we sided that property interests are not protected least within their circuit and the one other point is is that basically this court has said time after time after time that if there's a specific provision of the constitution which governs takings which this could have fit into everyone acknowledges that then you've got to go under the takings rather than the things which doesn't have a general contours such as subject to due process and i would you help me with it because if the case is not just issue both that's an issue for the court and all of the parties if the case is moot it's over and i just want you to answer one question for me that in this regard is the county or can we tell from this record whether the county is still seeking the dedication of a part of the playing of the remaining parcel as a condition to get a permit to develop the rest of the lot no your honor and the reason for that is that basically here the plaintiff in fact sold the remaining portion of the property is also the plaintiff no longer has that the permit was granted basically under the conditions and if under the act where some think they signed off accepting all the conditions of that as well which we would rely upon the brief there was nothing left procedurally to do but as i understand it after the permit was the ordinance says provides for all sorts of review and appeals yet an appeal it could have gone to state court in not only did he not appeal but they signed off on the conditions which required the there's nothing left whatever the claim was plaintiff other than the attorney's fees with this playing up so i guess i come back to my question is this case moot i don't think so because of the attorneys he wants to claim and attorneys fees on the strength of a judge marriage order that's about to si hillcrest judge marcus i don't think the case is moot for several reasons one is the parties agreed that the legality of this ordinance needed to be litigated even a agree we have jurisdiction and we don't that doesn't answer the question for me the second parties cannot breathe subject matter jurisdiction into a case that's different no matter how hard they try and under this mere fact of the two of you may think the case is still alive doesn't mean that it is the still may be for some other reason but that's what i'm trying to get you to tell me and the county is still in forcing the ordinance and  condition to getting a permit to develop not anymore it's dead not anymore that's true this was all administrative really over as i understand it before judge marriage day granted you relief on that as applied claim there was a settlement of the taking claim with the deal i understand and but let me ask you this was was everything settled in the sense that the county got what it wanted and you got some money for the take days that was over with yes but ok they there was a reservation of the rights to litigate  at the time hillcrest had a damage claim i understand that i'm what i'm talking about is after this matter was disposed of by this settlement what relief would you get out of a relief that we would get that the evidence is invalid would be the right to recover attorney's fees for the time and labor of the lawyer involved and that's assuming that the claim was appropriate in the first place of course and let's suppose the claims inappropriate in the first place in other words if he wasn't a meritorious claim in the first place yes we wouldn't be claiming attorney's fees and the case will be over with if judge greer day had ruled in their favor then we would be probably up here on appeal we'd be having the same discussion so why why isn't this i mean to get to the merits of claim i mean why isn't this the way this feels to me i'll change the channel my inner judge show flamm and tell you where i am and you can do this to me feels like it's the takings claim for four point seven million and now it's just sort of like round two same thing under some other label this this to me feels like exactly what's wrong with substantive due process me jillian's has like a real label it's under the fifth amendment any litigated and you settled and now here we go again right let me tell you judge and i would direct your attention to the joint ventures versus f t o t case and i'll give you the citation five sixty three southern second six twenty two florida supreme court case nine hundred ninety and then i would follow it up with a second case which is the tampa hillsborough express how are those cases helping you because they they are almost on all fours with this situation where the  government required set aside of right of way and wouldn't allow for the development of that right a lot of those are taking his case you know you're out of the federal court they're all take to cases well i let me explain i speak for myself they're all taking his case i understand and don't understand it's not i understood and understand why in the world there was a challenge to this statute before on its face on the ground it was a takings claim there's no substantive due process challenge to the statute yes and let me answer that you agree with that i don't agree that there's no substantive due process challenge and let me tell you why judge because we're dealing  nothing but the application of an ordinance are all classic thank you case and i'd like to tell you why i believe that this is not a takings case and there's a number of reasons first of all is the separate and distinct nature and character of the due process clause and the takings clause the due process clause is designed according to the supreme court of the united states to a prevent the government from arbitrarily and that's just a legislative setting and this is not a  this is not governed by mckinney is that while the county site plan review process is a quasi judicial process the imposition of a condition requiring the dedication of   you could of course you could but let me finish before before any harm could possibly be determined the harm occurs at the moment that extortion really leverage you into requiring you to the court makes clear that there's a distinction between a legislative act for purposes of substantive due process and a non legislative or an executive act executive vac characteristically applied away a limited number of persons often to only one person and they typically arises judge show flat suggests with respect to an administr activity by a member of the executive branch in this case isn't the application here of the enforcement of the ordinance all we're talking about rather than general law making or rule making and if that's the case how can you have a substantive due process calling i'll explain it's actually very simple the act of conditioning someone's development approval upon effectively the taking of someone's property is analogous to the same decision making process that occurs when the government decides whether and the extent to which they're going to take your property in eminent domain and the united states supreme court has made clear in the killer case the berman case the bragg case and the ridged county case that that isn't a legislative function it is not acquaintances hurt anybody that the legislation doesn't apply to anybody or hurt anybody or cause any injury until it is in force administratively it which time you have all i need to comment on the the administrative so called administrative remedies which the district court found to be illusory because of the structure of those administrative remedies was such that you know if you'll pardon the expression the so called constitutional cure that was supposed to be provided by those administrative remedies were was really worse than the queue at this whole dedicated dedication waiver correct which properly you won't believe the amount of land required to dedicated to the county on the bridge exceeds the amount of the land so forth and so on and you have all sorts of review administratively and that if you don't like that decision you go to the pascal county circuit court and get a state circuit judge to say that it was wrong and that's the yeah yeah but that's the issue here is the extortionate leveraging of the police power not what remedies you have but that the district court found that the remedies were illusory and specifically found them to be unconstitutional that was part of his ruling and so the in the bottom the bottom line the judges here is is can you codified extortionate leveraging of the police power in an ordinance and then attempt to enforce it and our position is the attempt to enforce it is a violation of substantive due process because we have a right as a property owner to be free of arbitrary and capricious government conduct and extortion that leveraging of the police power is the height of arbitrary government conduct it can't be cured oh isn't i just don't understand why this isn't all within a takings clause i don't understand i mean like lingle says exactions prototypical takings claim you know stop the between nourishment says don't bring us your substantive due process claims dressed or you're taking claims dressed up as absent understand there's a very subtle distinction when you say that are taking cases that is not actually technically an accurate description of what the case was about the case was decided under a completely different legal framework announced by the us supreme court in the  called the unconstitutional conditions doctrine it applies to any attempt by the government to force you to give up any constitutional right in exchange for a discretionary governmental benefit that is a substantive due process forced to give up your fifth amendment right to not have your property taken without just compensation that's sort of where this case is because the all the takings clause simply protects your right to be compensated for an otherwise valid exercise of the police due process clause is addressed to the validity of the police power it's a separate clause it addresses separate issues is there any case though that you can cite as to even assuming as an abstract matter that there is a substantive due process claim that transcends or cover something different from nolan said any case anywhere anytime where court has actually held that there was well you're honor i mean first of all there's the waltz case which we do cite in our materials which was a case where a exaction decision was made that it violated due process i would also point out that all nine justices of the u s supreme court in the case acknowledged that unfair allocation of public burdens stated a due process claim and that's a really important point because what you had was the majority acknowledging that they could have brought this under a due process concept and you also had the dissent arguing that it could have been brought as a due process claim and it's really very simple the reason is  it's what it is under there and with all the remedies i don't think it's ex orsen leveraging in place power the issue in so far as in ministration whether this was an administrative thing where  the issue concerning a specific year limited to the specific constitutional provision rather than to generalize due process notions whatever those may limitless they may be and how much they may be in the eye of the beholder i would call attention to the cases on page forty of our brief where prescott and bills of like jackson basically in bills of what jackson is a fed third case says if there's no substantive due process taking scase that would protect a specific property right not already protected by the takings clause and in that i would