be reversed and the case remitted the basis of the case is a retaliation in violation of first amendment rights of my clients and one of the retaliation consistent retaliation consisted of a number of different things including failure to allow my clients to have access to the city failure to allow them to participate with certain inspectors was there anything in the record about the usual access to it and there's no obligation for any city an official to talk to your client right correct all right so the question is is there anything and in the complaint regarding the usual i mean i would agree with you that if the usual practice was anybody who comes in to talk to him they're throwing him out that that would be arguably retaliation is there anything in the complaint to say asked for that getting what i do believe the obligation is to treat all of its citizens fairly in a someone comes to the city and asked for a permit for a building or is in the process of completing a building and suddenly it's you know that's not i was talking about my client's business endeavors they're involved in real estate development they're involved in running an apartment complexes and there have been withdrawal of services or the refusal to allow my clients to have the services that they should have and specifically if you look at the allegations of the complaint we have alleged that that was a conscious decision that was made by the city attorney to prevent my clients from having any communications with the what evidence is there that there's an admission of one of the city officials that he was there's pending litigation i've been advised by the city attorney not to speak with you anything else that's correct well in addition to that because there's no another start with a situation in which there is no constitutional obligation to talk to him so then your to have to show that he's being retaliated against you have to show that he would otherwise have gotten this but he didn't get it because of x so you have to show something about otherwise would have happened yeah i believe we did allege your honor in the complaint and i'll have to pull it out but that there was a that there is a duty with respect to the ongoing building and business endeavors  clients were engaged in that they are being treated fairly as anyone else would be treated in the community that happened up to a certain point but at the point of time in time where the city attorney instructed the city officials to no longer deal directly with my clients all of my clients activities had to go through the county it or the city attorney and there was no response a city of tucson abide by the arizona's open meeting law so any citizen can come to a regularly scheduled meeting of the tucson city council an area complain that me they may have with regard to what's going on in the city piece of the them correct yes any satisfactory result their constitutional right to get a particular result i think there's a constitutional right not to be discriminated against i think there's a constitutional right that you can't be deprived of services that are provided to all your citizens simply because you have filed suit against the city and that's the essence of our our action ok we have a retaliation claim in a minute and an equal protection claim class of one correct that was what the basis for your protection equal protection claim is basically the same that there's a fundamental right not to be discriminated against just because you have filed an action of the first amendment and that if you filed a civil rights action mike mccurry for the city of tucson and the defendants various cities facials and i can go through the counts one by one i think the court has properly identified already the fallacy of the first count because that's not retaliation that alleges a straight claim for violation of first amendment rights and it has the fundamental problem that all of them have which is there is no right that's been he's been deprived of yes he can go to public meetings city of tucson has a regular agenda item that is called at the audience where anybody can get up and speak and he's admitted he's gone to that he has no right to a specific response and as you go through the  if he were to allege that in general oh any person who called a city council member was responded to but he wasn't i mean there's another problem which is the reason but suppose the reason was because because this post was passed lawsuits are not present lawsuits so we're not going to talk to him that would set a claim he seems to be missing the allegation as to you protested at a at something i mean there is a way you can set a course of action like that but you need an allegation as to the fact that something was it was withdrawn that would otherwise have been given even though it isn't require hundred three but if the for example within our skis have not filed the lawsuit but carry protest signs up in front of city hall day after day that was the basis for city officials not meeting with them that organs about where were you we conduct city business here i'm not going to talk with you stop protesting you know and think about where that stated cause effect i don't think it would because i don't think there's any constitutional requirement to having meeting or personal discussion with a city official until now it's something where you know people saying the city of tucson is wonderful the city council in its members or heroic in everything they do in this particular councilman agrees to me with the pro tucson protesters but not the i'm toying with that's it a cause of action i think that would be dangerous ground because i think you'll find almost every legislative branch is meeting with one side far more often and often exclusively than another side on numerous issues even if the evidence was that the only reason that the council person didn't meet with the protester was because there were protests but the protest is over some issue affecting the council and they get to choose who don't think this city council is doing its job there are a lot of people that think that and i think if everyone were able to require as  a first amendment out there that if you know they're they're putting street lights in front of people's houses but we're not going to put the street by in front of your house because you protest i think that's getting there's no constitutional right of any that a body put a street light and funny or out i think it's getting closer to what would really be a class of one claim but by the way it's not a class of one claim it is a first member chali ation claim you don't have to have a constitutional right any attorney is going to advise their client not to speak if you look at the facts that are alleged on the face they are very reasonable the only fact alleged is that one of the council members said i was told not to talk to you during litigation there's nothing at all unreasonable about that the facts about the other council members on the first amendment is that they didn't respond to emails and there's no constitutional requirement that a council member respond to every email that they get there's nothing that says that these there's nothing they can show here's somebody in our exact situation who did get those rights so i don't think they've shown any sort of first amendment right but there  issue was whether or not the counting charged a thirty foot four foot easement for them as opposed to similarly situated people who had only a fifteen foot easement so you first of all did have somebody similarly situated you don't have that in this case you then ha easement here you don't have that i mean first of all with constituent services you have these vague things of they won't respond to me and i think the allegation and this is unlike any other citizens i'm sure there are thousands of citizens to my hypothetical if you were setting up street lights and you said i'm not giving you a straight like because i just i don't care i just we just hate you and we're not going to your street like everybody else realized how we hate you and i think that would be similar to all that  confessed he doesn't have to but your honor on the on the building issue what he alleges as a factual matter is that his client diff disagreed with the legal interpretation of the building code with the way the city enforce the legal that he doesn't say there is anybody else similarly situated who had a legal disagreement with the city over how they enforce their laws he doesn't explain why he didn't seek any legal administrative or judicial remedy at the state level for what that legal disagreement was and i think more importantly the court could go to the public record and the public records that are available to city  tucson show that in fact the permit was revoked in two thousand and eight two years before the statute of limitations in this case it also shows that it was revoked for a violation of the zoning code for having built too h this is dismissed on that are correct but there is law that the court can look at the public record and the plaintiff has cited that law but in any event i think even if you just go back to the fact alleged in the complaint itself that he had a disagreement over the legal interpretation this guy the problem is we have a complaint here the complaint says that it was done under false pretense all for a spy for a challenge or a so that's why we never got anywhere near this with the district court because he thought that it was all out for a different reason that was the argument made by the plaintiffs in their response to the motion to dismiss they first raised that they were relying on the first amendment in their plea on the fifth amendment in their own pleadings they didn't raise the fourteenth amendment in their own pleadings so the court was responding to what they raised when they raised on a general matter general rule is that what matters is the factual allegations not what what clause of the constitution but we had the first motion was based on rule eight which is the ball problem that there are no real facts that are alleged even in the motion to re consider ration even as we go through all the facts that are in both these two cases there's nothing that supports any claim for equal protection or class of  just to follow up on some of the things that were just discussed we do believe that we should have had an opportunity to amend if the court felt that there was insufficient facts that were alleged in connection with even if you didn't request it yes in addition to the allegations are that the building was did not meet the standards to permit was pulled the allegations of the complaint were that that was done for the reasons that there was discriminatory treatment and