prescott and although i don't represent them they apparently have sent a letter to the court clerk's office twenty minutes of the court's permission i'd like to say that it's good to be back arguing before judge lester and justice gina and although i lived in philadelphia for two years and worked there i never had the opportunity to appear before just pollock but it's certainly a pleasure trial is scheduled to begin next week a petition to revoke his probation was filed earlier this month and he faces a maximum of six months in jail and the last of his chiropractic license i'm sorry what is he a club owner yes your honor he is the he is the managing member of recreational development of earnings which is a limited liability company and just for clarification purposes the original it was originally filed under recreational developments of arizona by the original trial attorney recreational developments of arizona  managing member of recreational developments with phoenix and they're managing members of recreational development arizona and of phoenix however mr pencil is borne the brunt of the enforcement action cases of clients scientific experts are going to be applied to all experts whether they're going to be applied to lay experts and whether they're going to be applied to otherwise knowledgeable experts with specialized knowledge  i think it's absolutely clear let me just say at the outset that hanky controls this case this case is a published opinion judge still has published her earlier opinion she's published her last order striking the affidavits and if this  affirms that opinion i believe very strongly that it will create a conflict in the circuit between this case and hankies because i think it's absolutely clear that he control this case will have the most wide ranging in fact however on civil rights but against  criminal defendants who routinely rely on such experts experts were otherwise knowledgeable experts with specialized knowledge and with lay expertise and it's typically these exist and in criminal cases these defendants who are different result all right and she really cantina they were going to testify to this being irrelevant to the case rather than the fact that they might be experts on many subjects and where they had a man who was going to testify in korean business practices and apparently it was just a hobby to follow korean this practice and he was married to a korean woman and the court said that those obviously don't qualify you to be an expert on korean business practices however i mean i just moved into a new house and i happened to notice when i moved into the new house that there is a fire ant colony that has taken up residence in a crack in the pavement right outside the house and a trip across my patio every day for watched shows on fire ants and i may have read an article in nature magazine on fire ants and that doesn't necessarily mean that obviously qualified as an expert on the behavior or destructive ability of fire ants however let's say after my to schoolchildren and to universities and about fire ants that i was somebody who was consulted routinely by fire departments throughout the state of arizona and which twenty years five grand and off fire and farm the fact that i did not have a p entomology the fact that i have not done a specific scientific studies on firings wouldn't mean that i wouldn't be qualified as an expert under dog or under camo tie or under hanky i mean the case that i can teaching anatomy and physiology and at the fight physiology he's a visiting professor at rutgers university for fourteen years teaching human sexuality this new professor at n y u for ten years teach your graduate course exact school function of reproduction he's an age over substance because what we're talking about here is not scientific evidence what we're talking about here is what he testified to was essentially three things he testified to the awareness of sexually transmitted diseases by members of this other culture that we call swingers he also testified as to the practice of take taxed among groups of culture which is based on his personal knowledge and he described personal knowledge in terms of his years of teaching sexuality in this years of interviewing  you know the methodology used in the report if there was any list in tone to be liable well that's that's the main point that i want to make is that if you look at hanky panky it's very clear on this subject and hanky addresses this issue very explicitly affidavits of the of the province and i personally felt that with the amendment of the statute that occurred in two thousand and one that the over breath and the vagueness claims were worth appealing with respect to the question of whether there's an issue of material no it's mentioned on your honor and all i can say is that this case has cost our clients tens of thousands of dollars over the course over the course of the many years this has been going and it's just a question of resources and it's a question of whether we were going to submit a thirty two page brief or sixty page brief and i still teel that what'll happen is if this court overturns this trichords opinion and remanded back what we are going to do because there are a lot of other issues that are not in the record that need to be addressed i mean the previous trial council never to move to the complaint to argue the issue of enforcement in this case has been rigorously enforced with a single mindedness that would make inspectors a very jealous and we need to go back in fact next week we're going to be filing a new lawsuit that just talks about enforcement action in the equal protection issues relating to enforcement which were not addressed and if you remember the case when we consolidated and will have a single trial on i believe well that's that sort of a two prong answer to your question i would like the record to be better but i think that the record is adequate for you to determine that i think that there is an issue of material fact if obviously if this is remanded to the district court simply with what i really really want to do because the really only two people in this room obviously that i'm sorry one person in this room two people involved today the been with this case since the very beginning and i stretched over and watch the trial and i really want you to have an going to go through each of the four issues they're really for not the reason it's rance offset and explain you the posture in which those four issues currently are and it will help you resolve this expert witness question before you get there or what about assume there is i didn't address those because they're not grieved those and i'd like to go through each of those issues if i could and i don't respond in a more specific way to your question i think you'll understand why i gave the answer i  think the issues are before us i mean apart you think those issues are before the court and no your honor i don't what's before the court i think notice is important here is what council notice to the city was going to be argued before the night circuit he presented three issues which boiled down to really one issue whether or not judge silver improperly excluded the testimony of dr sure sir mr holt far as i can tell that's the only issue before you and that's the only i'm going to  those issues already been addressed by separate i believe ninth circuit panel we have four issues which are not i think ten or eleven were originally raised we have four issues let me just go through them quickly so roll working from the same starting that the testimony of dr church or mr goat which i sense the court recognizes judges are are simply applying that circuit live as it exists and i will go through some of that with you but i think it's very important if this stage you ask me only to address the issue which was raised in council if you would like i will certainly answer any question you ask me relating to any issue in this case i only believe at this point it's fair to ask me questions in connection with the expert witness test the first issue of freedom of expression the city's argument was that and this will address on your questions i think automatically the city's argument was that a business does not have the right of first amendment right to offer life sex acts as entertainment no courtney country that we could find and that includes the plaintiffs in the city and in the trial court could find any decision that held the reverse that in fact the first amendment to the u s constitution guarantees the right to same problem who are they but swingers have a core set of values and beliefs and those are such that the set of beliefs that other swingers recognize so judged so over in this context is trying to determine whether or not gold has something gold has something relevant to offer on now the issue no matter what they say this was the city's view it doesn't help plaintiffs with that argument because this type of conduct is not protected by the first amendment never has been probably never will be so no matter what goldie sure had to say on this issue they're not going to get over the constitutional hurdle the fact that the conduct they're offering is not protected by the first amendment the second issue which is to to offer this type of conduct because they they are they again they have this common set of beliefs ok well the problem with that argument is and this whole issue of been resolved a adopt the city's argot was which is in order to have the essay verses deal argument you must have protected expression as a predicate and that was our first issue so without that as a predicate we don't have this freedom of expression to her qualifications which i'll get to in a moment that was the second issue the third issue was the simplest of all and that is the right of privacy their claim is that they have a right to offer these license x and a semipublic places and that's protected by the so no matter what gould and church are say they're still stuck with they don't have a right of privacy to protect the operational life so i expect business offering life sex acts as entertainment so we're struggling here to find something to attach th have a legitimate basis into leaving that these types of businesses present the risk of the transmission of s t d nice and that is not a high hurdle for the city to clear we cleared it easily there was nothing short could of aluminite it that even if there is a little bit lower incidence of s t d's amongst waiters so what we still have a business that allows waiters and this is in the record swingers and non swingers assuming swingers are we have many definitions in the record a list assumes swingers are married couples that exchange partners while they are married those that form part of the client base customer base for these businesses and then we have other non strainers there so even if they were legitimate basis with interest in passing this ordinance and that's exactly what we did now there are many other things the chancellor has going for in this case as you all know the truck work is to be creative projects question making these decisions some of the cases that mr and the cited may fall into a gray area where had the trial judge ruled the other way the ninth circuit would have had to go along with that because if the trial judge does live with this case on the first things i try  viewed separately but i really think the best way to look at it is and that's why i took the time to get to these issues issue by issue if you could only make this reliability decision in the context of a particular issue so she's asking yourself if j this case i think that's exactly what she did and she did it consistent with harvard to hell and in general in the other night circuit cases as i read them myself i became more and more convinced this is going to be very difficult i would think for a court to look at what people are reliable again they need to be reliable in the context of something otherwise we're not really moving the ball very far so that's why i think the two are kind of related but she did not discuss relevancy directly and i believe speaking to her that she would like to be able to make a judgment what she had been told by the court the you eric somehow in your analysis of the expert witness testimony decision and i have a final points on that and i think the courts already know this qualifications alone do not do it that is the law you must happen methodology and we are not talking about the type of expert that had not come up with a methodology if this is generally where we're asking what is their discipline what are the qualifications of the stress this tell them here i am show me around and i will then repeat for you in the record how clean your club is and how i don't see an s t d as being transmitted out it looks to me like you're all sharing a core group a believes in this sort of thing you  so when judged over looked at these two reports and allies in the context of this case she couldn't find anything in there that would have been reliable enough to well back allow them to express their opinions in federal court and i think her decision was completely in accord with the supreme court law and the war on the ninth circuit and i'd ask you to rule specifically on that question whether or not charged over erred in refusing to admit the testimony of mr would call the court's attention to the statement of facts on page seven which discusses the issues and finally i call the court's attention to heap seventeen of the introduction of the argument which contains arguments discussions in case bob regarding  her versus the california department of corrections