please the court james case but on behalf of the plaintiff i reserve five minutes it may please proceed to go on a limb here and tell you that i believe that our position as stated in the breeze as well as the merits of this appeal are so clear that you don't need to hear oral argument from me unfortunately it has been my experience that courts do not always agree with me on these things so i would like to open myself up to questions just in case you don't think it's as clear as i do can i address any questions i would not assume the lack of questions to mean we agree with you how do you how do you sell that any particular comments that were made over the years or  how do you so that that's what motivated the decision in this case where there are very clear contemporaneous objective reasons for the decision to choose the other because we have direct evidence in the form of a declaration from the city manager who was you know had a bird's eye view to everything that was going on because we have the same decision maker that is mayor hampton saying the same things beginning in two thousand and three that you see in the affidavit of ms kohlberg he wants black contractors there's only one ok he said it back then but he didn't do anything about it i mean he didn't substitute well he didn't have the votes to do it and he didn't have the composition you know the composition of the city council to do it but that goes to fund any case where we go back nine years comment of course if that was all i had i would lose your honor but the the law tells you you need to look at the evidence not in isolation but cumulatively i got that but if you even cumulatively have you found a case where they relied upon a statement somebody made nine years before the incident actually there's a case called cruelly versus carmike where they relied on a statement this court relied on a statement is an age case but they relied on a statement by  the decision maker when he was a kid that he didn't like all people in the should go to a concentration camp so ordinarily can it is that an issue if there's nothing else you bet your honor but when you place the the comment in context and you have all this other evidence that highly relevant and i think i think i put together a pretty good string of evidence dating back to late one nine hundred eighty three when they came up with a statute this is this is not the first time that this  happened to a contractor or employer well first of all how do you show that it tainted the mayor isn't the only one that had a vote have you so that it tainted the whole process when you have individual people saying look at you know i kind of went in in his favor but you know i mean is attitude was this story falls asleep in meetings and i mean how how do you show that none of that was the reason textual if that was an issue no plan agreed ever prove one of these cases the law says that we have to show that the person making the offending statement had influence not the determined of influence but if you have influence in the in the decision making process than that in this case would be direct evidence and i don't know it's not only may or hampton if you look at the affidavit of ms capella she refers to not only the mayor but city council members saying that they want black contractors they want to know the composition of the contractors that are coming before them so it's not just mayor hampton and beyond  the statements of mayor hampton we have an ordinance that frankly has no business being on the books but they don't just no evidence that they were acting pursuant to any ordinance well if you assume that you just have an ordinance on the book and you ignore it i can and that's the that's a defense position why wouldn't you ignore it if it's been to claire dunne castration by the attorney  because they don't care so the city of inkster doesn't care for its own constitution they're going to do it anyway because they want black contractors but maybe they're going to do it anyway but that's different than saying they're going to do it because of an ordinance there's no i we can't find any evidence that the ordinance came into play here other than the fact that apparently at one point it was on the books it was on the books there's no direct evidence that they actually said we're go if if the legislature passes a statute and for whatever reason it's declared invalid by courts does the legislature that have to go back and formally revoke or to follow this unconstitutional posi that's even more evidence that they don't care about constitutional rights they're going to they're going to use race or gender or whatever illegal factor to do what they want to have to close the loop by showing us evidence that said what that what they did was in fact following this and cats to to sort of policy or even motivated by the end cast policy and at least in my case i'm having trouble finding that i would concede that there is nothing other than the existence of the policy but you know throw that out throw the piece of evidence out and i don't think you should but i'd throw it out ok i think there's once we throw it out then it sounds like what you were saying  answer to judge white's question is now you're advancing a catspaw theory that because the mayor has some sort of influence and because he was prejudiced against whites therefore that infused the decision making process of the desire to have black contractors they asked about the racial composition of the people don't you have to show that at various times let's say that they did that don't you have to show that that's what was involved in this case don't you have to show that that's why they didn't renew it as opposed to cost savings and a whole lot of other things because otherwise this city could never could never hire of a black contractor over a white contractor or even a firm that had one black over a firm that had no blacks because everything they would do from now on would be tainted and that would be it but we also have proposed testimony her opinion testimony based on clear underlying facts that that's exactly what that hampton did but the standard you're seeming to oppose is is you not the one it would seem that we could never have a case of what i call and i hate to say a reverse discrimination  could it's the same problem it mean even if it weren't the reverse discrimination case if you slipped the races you'd have the same problem because ultimately you can't get around the evidence that the other firm believe more expertise for less money and that there were  complaints about your client is i mean i don't know how you get that's highly contested and you know whether it's the cost justification that they use whether it's the more capacity that evidence that they are saving that's not uncontested and we set forth good reasons why  some of it is just not true that's one way of doing it in other words it's not really what motivated them another is that it's not insufficient to to warrant the action well here look at some of the reasons that there are just a fin determination hampton says he would that he let the guy have the unauthorized information that has been convicted of a felony for doing that he didn't get to him francis who he didn't get the information from the local district court well there's not even clear whether he was even asked to do this and another guy says yeah he did the best he could to get the information so i mean every one of these reasons cited well you talk about costs and you know it's after the fact with the it was far more expensive to have the on brothers and and capello says that in her understatement waiting for you to take a breath you'll have here about  have is many black contractors as possible to replace you know the white providers and to support the community i mean wh problem and is not of those those are no evidence of discrimination in this case for one thing because those statements made by hilliard hampton allegedly made by him were made some as judge mckeague noted some nine years ago in connection with minority preference ordinance those around statements made out of the blue mr hilliard hampton testified that if he made those statements he made them in connection with minority preference ordinance that is not contradicted in the record in fact all of the of or other evidence suggests that those statements were made way back in time and that's consistent with his statement that they would have been made in connection with the the statement to aunt capella about the actual person involved to make sure that he got the contract i believe that that statement has absolutely no reference to race it's it may be there it may be that mary hilliard hampton had a preference for the the allen brothers law firm which of course is not a minority law firm it's has one minority member of  six but that statement is is similar to the statement that the counsel made about about the the auditor where the councilman can he said we're hiring this person we're not hiring anyone but him that's a statement of personal preference for an individual it's not a statement that has any reflection on the step back for a second a and at least interested in this because there's an underlying theme here that government preferring certain groups is i guess per se unconstitutional but the reason i'm asking the question is don't we to this day have the very federal government in which you're we're all sitting here this morning having many preference programs where they're p but i'm afraid i'm not prepared to answer that question we have proceeded on the on theory of of whether this is race discrimination that's what i'm saying that i'm asking that question because government having a preference it seems to me at least is arguably whether you agree with that or not is at least arguably different than whether somebody was discriminated against in connection with a terminations of a contract based upon their race i'm just asking in generally speaking even if they prefer to have minority contractors assuming that they are better qualified is that wrong this candidate because he's white and hire another one because he's black that's i think that's the same but here's my question did this did any of this amount to more than putting out notice asking for proposals and saying at the bottom as they often do minority and women and businesses are encouraged to apply was it was it ever stronger than that i don't think it was any stronger than that and i think that the evidence shows that this decision was made based on legitimate business reasons the evidence is overwhelming in fact of the city council members testified as to their reasons for choosing the allen brothers law firm those reasons were the breadth of skills and skills and abilities and that they felt that that would be a more economical alternative and they also felt there were really two theories going one was that they would be a more economical alternative if they handled only the same matters that mr economy was handling the second was that they would sort of get  out of control situation under control by having the alan brothers law firm handle more city matters so not necessarily that they would be cheaper but they would they would sort of gain control of the spiraling situation and wasn't it also true that alan brothers had done the same kind of work for half a dozen other municipalities yes the allen brothers had excellent qualifications we would ask the court and they were they were ambitious candidate i think that makes a difference between mr because me and the allen brothers they really pursued this contractor mistress because and he said or said to certain city council members i just want to stay on for two or three more years and he felt entitled to that position i think that there was a that was a very legitimate reason and that was never rebutted in the record why the city council would and the mayor would choose the allen brothers law firm but i have one final question i notice you use the you also use the terminology terminated i know that they asked for proposals there was this program everybody's got to submit a proposal to get a contract so was this a case of terminating his contract or simply failing to renew his contract i think that would better be characterized as failing to renew his contract i don't know that he had a kind i'm not sure if he had a contract that renewed every year that was renewed i don't know the answer to that to tell you the truth did he have a written contract he did have a written contract that want to have a termination date in it or not i am not certain of that standing here did you handle the rest of the case the linn county case know the wayne county case well it wasn't part of the case all part of this case the contract case was remanded to wayne county no i did not handle it i'm i handle the summary disposition in the district court in the appeal so there is a separate strictly contract issue that's going on and and unfortunately i'm not as familiar with that is as i'd like to be but doesn't it make a difference at least are you boy if they cut off his contract and mid term versus it became do and they chose not to renew it i don't believe it does because the what what where does he get the right to ren you have to be depriving somebody of some right that they had in this case based on race if he has an ongoing contract and they take it away ok we get that but if the contract was up for renewal and they declined to renew it where is he being even deprived of a right that he had based on race or otherwise if the contract was up for renewal i'm i'm i'm afraid i simply can't answer that question all right fair enough role i think that i think i have and i think i hope i've answered most of the judge's questions to your satisfaction i think that we have what we have here is a plaintiff who worked for the city for twenty nine years he worked with m hampton who is alleged to be the moving force in this decision to reach to to hire a new city attorney worked from with mayor hampton for twenty one years i don't think that i think if there were race discrimination to have occurred it certainly would have occurred before two thousand and eleven see now you're saying things that you can't possibly know when you say he worked for the mayor well did he have a contract we don't know did he work was a contract with the mayor was the contract with was with the city did the city contract say that he took directions from the mayor does he take you takes directions from city council and the mayor is considered as a member of city council ok so he didn't work for the mayor that work for the council he worked with the mayor there you go on your big difference yes i can conclude that i think that this evidence this record is overwhelmingly supports the legitimate reason and supplies no evidence that either the minority preference ordinance or any statements of mayor hampton made some nine years ago were a cause or a motivating factor in the in the decision to replace mr speaker me a city attorney did you have further questions the judge is just pointing out an allegation in the complaint that his contract they refused to honor his contract that required ninety days advanced written notice apparently to terminate yes we would and so did they did they terminate the contract without having given the ninety days notice our contention is that the issuance of the request for proposal was a ninety day notice and then by the time that they got around to wording the new contract had ninety days passed and you could send out an r f p and then you could award of the next day and you would meet the ninety do it wasn't the next day and i believe it would have been ninety days but i can't answer that with certainty or thank you what about the allegation that he wasn't even invited to interview i think this has to do with the fact that the allen brothers was in close communication with the city and so they knew what was going to happen at a city council meeting i think that's as simple as that were mistress because lee maybe wasn't in that kind of did wasn't having that kind of communication with the council members at that time why do you need to have communication isn't there an agenda that you have to post the agenda you just don't know what happened here do wells certain things aren't clear from the record  the first like to address your point judge mckeague and no it is not ok for the government to have a preference program especially here where there's no evidence of past discrimination against the african americans they have been running the ministry since one thousand nine hundred seventy and i would direct you to your opinion rather ferd versus city of cleveland there you looked at you know past discrimination past judicial findings in a mission by the city in a consent group we don't have any of that here ok so there is absolutely no basis for them to be making any decisions based on race we're looking at cases that deal with with consent decrees or judicial decrees entered into to remediate past discrimination that's not this case what i'm saying is you can't do racial preferences unless it can pass strict if they if they still if they request proposals to do this job why isn't that a notice that there that they're considering terminating is contract for the same reason the judge terminal said in the record below which is potentially terminating its contract is not terminating the contract and they did not those that was issued in january are or they didn't terminate the contract until july eighteenth two thousand and eleven so there was that doesn't really help you if the if the p is notice it is out and got his ninety days in and then the contract was german if it was ninety days then he would have been done a lot earlier he would have been march february march april you haven't done april that was notice but you're not seeking some portion of ninety days we are in the wayne county circuit court case the ok ending so we don't have to worry about that ok let me start with the statement that to eleven that she was hearing this on a regular basis one thing that bothers me that let me just lay it out and then give you a chance to respond to it under your theory if if we assume that there was some racial preference or animus going on here let's assume for our discussion that there is it seems to me that it would be impossible for the city to terminate your client's contract unless they replaced him with another white that's not true you still have how can they replace him with an african american even if eminently better qualified which i'm asking you to assume for purposes of our discussion because it would be infused with racial discrimination under your theory still have to prove your case you still have to have somebody saying it was the standard operating procedure for them to ask everybody that came before them whether or not they had minorities in the firm what percentage it was standard operating procedure for them to talk about how they preferred minority candidates just that might there's been lots of cases whether it's age race gender simply replacement by the person in the protected touristic doesn't outside the project to characterise it does not make your case for you and that's the same that's also true here you thank you interesting case the case will be submitted please call