that afternoon your honour's that did not start out smoothly but may have please the court thanks on behalf of dr proctor i think that the briefing was quite thorough we went over again the things that happened in district court there are three topics that i wanted to emphasize  don't know if you heard me but i did want to reserve four minutes or four minutes as you know in the briefing i focused on the district court's characterization of the climbs which flowed also from the defendant's characterizations of the climbs i went back to look at the complaint and i realize that there are more paragraphs in the complaint that talk about the background the dispute between the parties over there verification process and there are fifteen paragraphs in the original complaint that actually talk about the elements of the two clients so it's sort of understandable that the district court might have thought that we were really trying to basically time on the verification process but it's the lack of notice and the restriction that is the real gist of the climb and i hope that i put that in the substantive counts well enough to make that clear the there's always been a problem of course t court does not have to follow the party's characterization but we really did try to emphasize that it was the lack of notice and course there is the underlying dispute about whether what they did actually fits the definition of restriction but i think that's more of a factual issue or did they limit his license did they restrict his license that's probably not appropriate for the twelve b six but i think that's been fairly well fleshed out in the briefing and i you know unless the court has questions on that topic i probably don't need to explain that any further than the other topic that i really wanted to focus on was the inclusion by the defendants of the other disciplines that they have imposed not they not these two defendants but the agency on my client and the lawsuits that he's filed trying to protect himself and i really don't think those are appropriate for those twelve b six status that were in i didn't file a motion to strike in the district court because those things are of public record i mean obviously if the court wanted the district or wanted to rely on them very very to look up their published cases or unpublished opinions but they did to me they what they do is they show the long ongoing dispute between dr proctor and this agency which i think works to our advantage to some extent but i really do think at the end of the day it was inappropriate for the defendants to put that in a rule twelve b status motion the other thing that the district court did in this is in the opinion which is docket number seventeen  stop accepting his or applications with his certification and that's not the gist of the constitutional violation that's a discussion about whether or not what they did was discretionary and our position is that st of all when you decide to reject all applications containing his certification you're no longer exercising discretion it's also not appropriate to consider that a discretionary at for purposes of immunity because they don't have the authority to exercise that discretion in the st place but it all boils down to this even if there was a rule or regulation that required him to cooperate or required him to respond in a certain fashion and he didn't he still entitle to notice and an opportunity to be heard before they take some action that impacts the full exercise of his occupation and that was the case we we discussed it quite a bit was green from the united states supreme court  that talked about the fellow that had a security clearance revoked might want to agency that affected his appointment i think actually in the private sector mr bostic i guess the thing about qualified immunity i'm to struggling to understand how there can be a clearly established right to help someone prick your something that's so legal under federal law the right is all of the property right is through the full exercise of his occupation the constitutional deprivation is the lack of notice i understand the and we talked about so much in the plane but that's you're talking at such a high level generality and for qualified immunity purposes we've always said you have to talk in specifics not generalities here in this specific is your client wants a right to help someone creek you're something that's a legal right it's a legal under federal law remains illegal under federal law degree and so where does that specific right come from that's where i'm stru had when i was standing in a district court and trying to exert squarest i think this exact discussion came up and i knew when i walked in the courtroom that day i was going in there to argue to a federal judge that  client was deprived of the right to do something that the end result of which was a federal crime i understand but this state right help someone particular something that's illegal does that make sense it does but only if you agree that the claim is there is well i mean michigan's prostitution has a due process clause and that's very summerbee federal sherrilyn go to michigan but we also have another sentence and one of our constitutional provisions that talks about  being treated fairly and all investigated and legislated investigations but again you're talking about michigan law yes but they didn't do one and and as you saw from what the defendants put in their motion we did not do well in state court and so what the the the the long term effect is you know we have a voter initiative in two thousand eight and then we we put some things in the in the complaint about political process attitude and the bottom line is your honor we're not going to get a fair shake in state court through the administrative process or our car climbs if it's not going to happen you're we're not going to be treated fairly but when the focus on you know the words this takes me back to my th amendment comparison if i'm if a defendant has a pile of marijuana in his house that's illegal under federal law but the police can't come in to get it without a search warrant and if he's driving down the road with a bale of marijuana truck was car the police have to either have a warrant or probable cause to search the car and get the marijuana in other words the th amendment still applies even though he's violating federal law and i think this is exactly the same as the what they the government doesn't have an obligation to help you obtain something that's illegal they just can't take it away without complying with the constitution but dr proctor's not obtaining anything the patient may ultimately attain a sure but he's helping someone he's aiding d and abetting for lack of a better way of this but he her and we and we've been waiting for that to happen but the problem is he's exercising his rights of his license under state law signing the certification is all he's doing we don't he doesn't michigan i now don't know the law on this but i assume michigan with prescriptions different doctors temperance plate the nurse can't prescribe certain narcotics correct in this you know correct so why can't michigan set up a process that says you can only prescribe this if you do these things that seems perfectly reasonable to me they well they can prescribe marijuana at all ever for any right no i get that  my point is is they can stop people who don't comply with their requirements from st driving medications and that's not unconstitutional right but there has to be a law or regulation that imposes th prohibition before the board of medicine can take x or and even when they do they have to give notice in an opportunity to be heard so that the individual licensee can defend himself and that's violation of federal law or federal federal constitution and that federal right is clearly established and we normally require you to have a case that says that so that all  reasonable actors would know that they're violating the constitution by what they did and hear the defendant say that they did not have reasonable notice of what they did was violated the constitution what's the best case that you have we can look at insist that this this put them on notice that all reasonable state defendants would know that what they did here violated other federal constitution and your honor that is the green it's g r page ten and i discuss it for a bit and that's the problem at hand is your requirements yanked by the military boards but that caused them to lose is annoying in employment i think that's probably my best warm you saying now that has its position as the lack of an alleged lack of notice and a restriction on his client's medical license his client's license was never limited and he does not point to any limitation in the complaint that was actually levied against his li with respect to the green opinion the green opinion is not something that's political to this case to refute qualified immunity in that case the plaintiff was completely something i apologize your honor i didn't mean to speak over your question no he did not allege that that was not alleged in his complaint but i would say that even if he had alleged that that would not  outcome determinative because he would still be able to practice other types of medicine and in fact the elements that go into issuing a certification for patients involve things like a physical butterly protected right at issue here there was no restriction or limitation on the plaintiff's license he hasn't articulated what he was unable to do by virtue of defendant's actions defendants were simply trying to implement this rather new statutory and regulatory rules scheme and were exercising their discretion in determining what was acceptable it's not regarding the verification there is no clearly established right to having certificates medical marijuana certificates accepted part particularly those that cannot be verified defend the plaintiff i'm sorry i'm used to being on the other side of these cases usually  so plaintiff is not does not have the authority to dictate to the department how it can can implement its verification system and essentially reading plaintiff's complaint and his briefing that seems to be really what he is most most upset about that he he wanted to dictate to the department how the information in should provide to him and how they should verify or it should  honor i don't believe that that is part of the lower court records but i believe that the reason i asked the question is the district court says or maybe maybe this isn't the comply and i can't remember but there's specifically that the department actually  actually stopped accepting i think it's a it's phrased in the future terms but i but i i do believe it was a two week period  my nd best case i think that a stablish is a right that issue would be a moody versus michigan gaming control board because in that case the gaming control board i think is the entity that issue a decision to restrict the ability of a couple of horse trainers to i don't know if they were administering medications or are actually what the details were but that was action by the board that actually had the authority to impact their license as opposed to a couple of investigators or our other people and you know bureaucrats so it's a little bit different but it does talk about the by yanking a certain part of their license how they were unable to work in their field at all which brings me around to this issue of a doctor proctor being able to do other things he most certainly could have he could have seen patients for colds and cuts and bruises and all sorts of things but if he were to continue certifying patients for medical marijuana knowing that that patient's application would be rejected but he took money from that patient well then the department would have come after him for lack of good moral character because he's taking money knowing that he's not providing a service that has a meaning judge givens the period of time you're you're pretty close i think where you got the one piece of information is from their citation to the court of claims opinion that dismissed the case because it was moot and there they said that it was because he had started complying they started accepting therefore his lawsuit was moot in the front of the court climbs but the issue of and i agree it was about a two week period but miss cruz announced he claimed that they started accepting them the st week of july but she didn't he was getting rejections well into july so you know that the trickle down or whatever the problem was but the overall time period was closer to a month now the just in and wrapping up dr proctor absolutely does not care how these folks choose to do their verification they can do it any way they want well and do it in a way t regulation says they can but what they can't do is arbitrarily impose rules demand that he cooperate when there's nothing that requires him to cooperate and then retaliate against him when he chooses not to do it the way they want him to do it and the real important thing which we alleged in the complaint is he never refused he asked for more information and he explained it would be a delay if you don't give it to me they chose not to they chose not to put their requests in writing and so that was the bar a big part of the problem he never stopped refusing and that's clearly alleged in the complaint with that unless there are questions i will wrap it up not where we appreciate the argument but given it will consider the case care thank you