them the michigan state police has no preference record list the district court erred in determining that they are not for two reasons st mr haikou complaints no ordinance contract or other rules of mutually explicit understanding  contrary lieutenant's wife and mcintyre did not have a fair in clear warning about what the law requires accordingly for those reasons the court should divorce reverse the lower court's denial of qualified immunity and remand for dismissal this case now your hon how you create i mean it sounds like i take it this is that in this trade of well concept and i'm just not sure i understand how they're created are they generally binding and so forth i can address that your honor so in the process for creating modifying resending a and official order is more of an informal process or not promulgated pursuant to the michigan in the district of procedures act rather work units are responsible for continuous review and revision or creating new official orders century what happened is that work units will propose an order or propose a change to an order the office of professional development will review it at that order and then they'll send it to the affected parties so for example say a bargaining unit and then once everyone has reviewed it and it goes to the director of state police for a view if he approves that or she approves that it's on posts on the internet so they do not have the fo context you're out of the work group i believe and my understanding of it is that it would be people who work in the area that the official order would affect but for example in regard to special order forty eight it would likely be people who deal with telling a wrecker services maybe many commanders things like that now your honor going back to luka st is monroe county again i think that that he is really is at the heart of this case and lucas involved a towing company that was removed from the county telling list and in that case eligibility to remain on the list involved a number of factors like i said hearing quitting companies location maintenance of insurance maintenance of certain types of towing vehicles you had to actually contrary in light of the nature and language of social order forty eight the plaintiff here does not have more than a unilateral expectation of continuing to receive the benefit of remaining on an s p s no preference list so your interests looking operations procedures for the use of record services it then goes on to say included are operational guidelines to provide a fission and equitable delivery of qualified and courteous record service to protect the safety of people and property now if you go to the preamble of the official orders and this is the preamble to all the official orders it provides that these rules and regulations are intended for guidance of members but they may be informed of the operations of their department their responsibilities and the code of ethics they are expected to observe and the preamble also provides that these rules and regulations shall be followed except under circumstances or in situations deemed by the director to be in the best interest of the department to do otherwise so these actions taken together demonstrate that m s t official orders necessarily involve discretion i think if you look at the language of official order forty eight itself in regard to establishing the no preference clas  it sounds like he he's got a company that is on the list another list piece that's bad if you've got that kind of service that seems very strange the suppose that explanations for taking him off this one list don't seem to be easy to find so that's a little unusual i find myself just wondering if this is just can't be worked out well your honor it hasn't been able to be worked out so far government entitlement and government entitlement is not provided due process protections if government officials may grant or deny it in their actions and that's town of capital rock in this the th circuit has said the same a party cannot possess a property interest provisions that they're supposed to file follow but i think what this court should be looking at is whether the official the nature of your orders and whether the discretionary and whether being on the no preference limits is discretionary and i think if you look seem to be in your view any particular reason to have this order in the st place and it does seem to lay out things that would cause the hotels upgraders to sink that there were some rules and regulations here  as any other towing operation than just summarily removed the way this one was but without any impact on the order itself i mean that order still stands it's just as far as this company is concerned nobody had to follow it sort of looks like am i wrong you're correct there at the time of discovery no other company has been taken off the list however i would point out your honor and i'm not quite sure how relevant it is for your discussion but and but i think it goes to the discretion of the list official order forty eight dollars since the time of cases started has completely changed and provided that people can be taken off the list essential of the department and that's provided in the preamble it says these rules and regulations are intended for guidance of members so that they need to informed of the operations of their departments so you know in a perfect world members of the the point at which this plaintiff was removed from the list the order had been changed so it had not your honor so if we accept your view that it's absolutely discretionary because the order could be changed you're simply saying that there's no point to having the order at all because it could be changed but it doesn't need to we can just change it day by day without doing anything formal at all and so it's sort of a crapshoot here from the point of view list in the st place and they certainly have discretion and then pursuant to the united states supreme court and this court you can't have a property interest in that let's and for that reason i would ask the court to reverse your honor thank you the director has the power to issue official orders how they how they internally go through that process is is not stated explicitly in the statute or the rules as far as i know and i don't know that it's particularly relevant but that doesn't that just means they can change them when they wish if there's no threat that can be said there's no statutory requirement of notice in time and then that means they can change them with  held and unless extenuating circumstances except a record of service shall not have their contract cancel and a written notice shall be sent describing any complaints that are made and the record services shall be notified of any established point and other words that there is a property interest in being on a list like this won't well i would tell me what the best case is maybe that's the better way to put it what's the best case for that idea we cited qualified to be put on the sweats and it's reasonable for them to rely having gone through those so to speak those costs that the order is going to be in force with respect to when they can be even moved the order even says protected here as a matter of of a constitutional law because that's all it's whining when the towing company takes that kind of risk knowing knowing that it's going to cost a lot to get out a less and knowing that the department has had stated through an order that that both officers under oath they work they were compelled to obey even though they did it had t retired to the office or they didn't have the discretion to just ignore the forty eight so that created in my client's mind a reasonable expectation that these rights existed and there i take it this is just not one of those cases that can be worked out i mean just seems very strange doesn't seem to be just about your client because there's another company that's on the list i i quite agree with you it's i can explain why i agree with you i totally agree with you but i don't i can explain why i would say that one thing is absolutely clear there was no process at all given to my clients they simply got a letter in the mail that said you're out and that and attempts to get an explanation whenever forthcoming my clients have made an attempt to get back on the left and their time to men met with complying with everything that border forty eight yes your honor is and i just in my rebuttal comment just like to talk about you know at the end of the day even if there is a constitutionally protected interest in this case i don't think the right was clearly established and to start you know lucas which says unless you can point to an ordinance contract or other rules of mutually explicit understanding you don't have a property right and in that case the court used the fact that there weren't references to a procedures for removal but the policy of lucas didn't seem to have the discretion that and the speed doesn't this case and i think more involve discretion and then we also have numerous out of circuit cases that say in order to have a protected property rights you need to have something more than the policy itself such as a law a regulation with the force a law or a contract so again the focus is on the discretionary discretionary nature of the policy order exciter off and then finally your honour's we have young published case for what it's worth corbis which looked at the predecessor policy and and said that it just didn't give rise to for quality and type of service he also noted as a lot of it was that what is happening quote is quality and type of service mean like there was an unhappy customer essential your honor official order forty eight says that you need to be professional and courteous in dealing with customers what happened like what was what were the specifics or was it just nothing more than there was a complaint there was testimony below that there were numerous complaints your honor to my knowledge and now when i go ok so i'm looking for specifics like what reasonable rates that customer self if they were being charged excessively and i do think that there are some some disputed facts in regard to him or what i'm talking about customer do you know that what was that your  one customer more than one customer do we know i think the idea numerous a complaint floor between heart and rockford i believe there was more than one customer and i do also believe that based on the either didn't exist there weren't enough of them and we say yes they are but i think those are disputed fact but i don't think that has any bearing on whether plaintiffs have protected property interests and remain on the list for that you need really need to look to a special order forty eight think your honor so in other words counsel what you're saying is that it doesn't matter any of the things that are in official or forty eight including that if there are complaints say they shall be investigated all that counts is that because this doesn't really have a formal adoption process this rule really there are there is no basis upon which the plaintiffs a claim that he couldn't just be summarily removed with no reason whatever that is your position ye both both the the lack of the formal nature of the order and also just the highly discretionary nature contained in the order and in the preamble so i can go back to my original question was why do they have this order at all well your honor i think the best case scenario they want people to be following these orders and there to guide wires in if they do follow the orders apparently they can be summarily removed anyway  y i think in vast majority of circumstances your honor that this order is complied with not was what i said it doesn't apply unless the city wants it so but ok thank you thank you we appreciate the