here is important to frame correctly because this is not a case involving restrictions like communication with elected officials at city hall during a city council meeting or anything of that sort these were private communications one on one between the individual members of the citizens group and individual city council members that want on and these were communications about political matters pending legislation before the city council it is the type of communication that one on one communication with your elected representative that the supreme court has stated it is probably the most effective fundamental avenue of political discourse the issue with presented in this case is whether the city's obstruction of that one on one communication violates the first amendment the city and wal mart try to restrain the issue because they can't win the two that's truly presented they try to reframe the issue as one of one of the city's rights to control the proceedings at a city council meeting and they say it's a luminous cases that deal with that and similar issues those cases that have nothing to do with the issue presented here well could you assume that arkansas could you deal with the fairly sweeping language of the holding of night because there's an awful lot of talk in there about willing listeners and readers of communication with the government's right not to have to listen there is the element in this case that the city council members were acting we discussed in our brief the facts are that case and it was pointed out actually in the majority opinion in that case where they took issue with the sack that all they were addressing were limits on the rights of the professors a million ploys to communicate with the employer during the formal meet and confer sessions and the majority opinion went out of its way both in the text and in a footnote to point out that the employees had the opportunity to informally communicate with the employer outside of the formalized meet and confer sessions and it the majority pointed out that that that that one on one communication but after the initial rocky road it's been clear that it does not impair that informal communication so that was definitely an issue that was discussed between the majority and them and the dissent in that amendment right to speak but they don't have a constitutional requirement to listen you know absolutely i agree with the statement enjoy but specifically as applied to this case if the facts were that we went up and knocked on the door of the council members and said we would like to talk to you about this issue and they said no we don't want to talk to you that would be the end of it we didn't have a right to force them to listen to us but the facts of this case start these council members wanted to listen to us if you take a look at the record they say they wanted to listen to us i think was council member gurn and said i would like to speak with you about this but i've been directed by the city attorney not to so this is not a case where the council members the legislators the elected representative said we don't want to listen go away they wanted to listen and the city attorney assistant city attorney give them improper advice and directed them not to and that's why this case has nothing to do with that broad language that  you see in the night what happens in the context of the city council meeting when your clients make their presentation there's an opportunity to take  of ratification of the city attorney's directed the fact they were carrying out the calls confining communication through the formal channels and in the formal channel they had heard all they wanted to hear through the planning commission because that distinct you have to distinguish between the formal channels as you were and the informal one on one lobbying and what that vote was about or well i don't remember which form it was was so should we open up the formal process someone should we have a public hearing in front of the city council should we open up the record and that so  the council said no we don't want to extend that formal process that's vote was not a vote on whether there should be an allowance for one on one lobbying in the privacy of people's homes outside the formal setting present information whether it was orally by calling him up on the telephone or as in this case mr warfield brought a package of information and the council members returned it to him that he this package and read your information or i don't want to speak with you because i've had enough or for whatever you know personal reason that would be tonight but here the record is that these council members wanted this information i've read too much i've got six notebooks i've had it i'm not reading this that's a different issue but the issue here was that council member and the other cast members wanted this information but were erroneous lee directed by their city attorney that they would be violating the due process me the way the ok so this is a legislative matter not quite shaky additional and so there is no there are some minimum requirements i guess is the way i would say it that the minimum requirements are you have to hold a public hearing at some point the city council to me has to make a decision in the in the city of lake where they have a requirement that you go through a planning advisory board so those minimum requirements are there there is nothing in the law either the city state and certainly not the federal level that prohibits one on one lobbying above and beyond the minimum formal process that is set out in the city and state law city attorney says here's a process that we have make your complaints known to the planning advisory board don't comment so you know that she's right that that was a part of the opportunity to express themselves with my client's hat and that was them a minimum requirement of city and state law but city and state law did not impair or restrict the rights given by the federal constitution that they can beyond that have a one on one conversation with their elected representative and that's where the city council members party to the first of the planning and  advisory board were they those are just another one of the appointed citizens or yes it's an advisory board and and and then there was so they came down with a report and recommendation after hearing testimony and pre and their report recommendation goes to the city council and the city council of them was there a scheduled meeting at which it with them here or could have heard further information if  one that was a formally noticed meeting on the line right and they had the option but not the requirement under their city code that opened it up for public testimony and they chose not to and like mike says they can do that all right so and then in terms of before the public hearing before the city council there's no prohibition about approaches to city council members of least on a one on one basis that's right and if there were one it just like we have here two of those cases were cases where there was inadequate notice a third was a violation of the single title rule and and all those cases the state supreme court held that it was as of that the that was it got there i wouldn't this be more appropriate well of that i just wondering if there is no is there any evidence that the outcome of the ordinance would have been any different if your clients have been allowed to communicate with the city council members but i think that goes with that there's no evidence one way or the other certainly i think that goes to the heart of the first amendment and to some of these supreme court statements about that this is the most fundamental most effective method of communicating with your legislator is the one on one and certainly we believe that if we'd had that chance to communicate with them that it would have made a difference one point in particular and that we never had a chance to discuss with the city council the recommendation made by the advisory board we never had an opportunity to discuss with the city council the in final environmental impact statement those both both that recommendation and the final intact analysis were published after this those points i guess we were unsure whether they were going to open it up or not we knew that they were being very restrict those in and monitoring communication but i don't know that we had a firm belief one way or interacting folks not to talk to you could you tell me specifically how that ties into the first amendment is this type of prior restraint or what is your theory  there was no state interest and or staying i understand the state which cities interest in regulating proceedings at the city council meetings and that's why special rules apply this to the council meetings as stated in wal mart's brief but they have no compelling no interest at all let alone a compelling one in prohibiting constituents from talking with the legislators on a voluntary basis in the privacy of their own homes or who was the restraint the restraint of the city council or restraint of your clients or both it was both the  assistant city attorney both direct and the city council members not just speak with my clients and in a phone call that's reflected in the record mr warfield was in his words angrily and otherwise directed by the city attorney to cease these communications if the city attorney had a good reason for directing them not to speak i take it there's no binding authority on them to obey the city attorney there's nothing in the law that says in the law  community or the city this is the city to me tells you not to speak you can't speak they're just doing great well there's two things one at a practical level you have late members on the city council and if the city attorney first amendment protected speech and the search that communication from the city attorney certainly had a chilling effect this is very evident the record of the city attorney had a good reason for suggesting they not or telling him not to speak with that answer your first amendment don't have to know what the reason was i mean we under a prior restraint analysis you would first have to find a compelling competing state interest that was being protected and then it would need to be the narrowest restriction possible we don't have either of those are we don't i don't know what they're compelling state interest is and this is in the record that has been well the only interest reflected in the record we're you know the  right which which is not true i mean if i lobbyists you know the if the attorney city attorney gives in that direction is your case based upon whether the direction is good lower bad law suppose the supposed good law supposed the attorneys feature is right does that do with your case if the attorney said it's attorney said you can't speak with your constituents and have a with some hate to battle with hypotheticals but i can't fathom it you to fathom it's like the un it's like saying ok the u s attorney can tell a member of congress that if you speak with a representative of exxon you also have to speak with a member of  been decided with the city attorney's advice was correct or not well i think that's i mean in a matter that's the issue that's presented here there's no city ordinance you serve so if the but if there were the city ordinance precluded communication between the planning commission and the city council hearing that would be a local ordinance you might challenge the ordinance i take it exactly if that's what either of you or challenging or in the absence of an ordinance you're challenging the ad hoc advice if it please the cart my name is diana placate and i represent the city of lakewood and heidi and watchers the city attorney i'm sharing my time with jack mcculloch who's representing wal mart in this matter i want to get back to basics here and i think we need look no further the night to understand what the basics are is that we have a representative form of government and it's playing just curtains shows that they ha constitutional right before they can even go to the next step to show that there was government interference with that right always do have a constitutional right of expression and right to petition and you rely heavily on night and i'd just like to if you could focus on the practicality of the procedure here that was instituted in mind neighborhood we have homeowners association and each month we have a member of the city  council either the local representative or an adjoining representative i don't happen to go to these but i get their favorites and so i'm aware of it ok and each month the city council member comes to respond to the concerns constituents one of the concerns very active in our neighborhood is best buy going into a local neighborhood and before it was a walgreens and every time the city council member would be for the homeowners association they would be interrogated intensively about what the city council was planning to do on the permit process both of those projects  turning to instruct the city council members who are attending the homeowners association that they can go to the meeting but they may not they may not even though we'd like like to they may not listen to your comment  on any of the homeowners expressions of opposition to or concern about the project where am i wrong in my understanding of your position well i think by the mere fact that the city council people chose to because they were told that they couldn't listen to that you know there are lots of other issues that they might go there for but i accept your notion and that they were a willing listener so still i understand at least according to council that the city members who were foreclosed from speaking or two were listening to were really listeners but were acting in response to the city attorney's advise that they couldn't yes and i'm not sure but that i may have and the government interfering with both parties constitutional rights that are that's not what we had in this case what we have is people who are willing to speak but have no right to talk to the government policymaker and have them declined their willingness to speak was because they simply sided to go along with the advice of the city attorney even though that was just fine with them i think there absolutely is and i think that evidence becomes perfectly clear and i think it's on the meeting where counsel for bridgeport head who had already delivered a letter ahead of times think i don't care what your city attorney told you you don't have to listen to your city attorney you have constitutional rights as individual council people or as a group not to take that its vice council members got that letter before they even went to the final city council meeting where they voted on whether to take to close the record  and again at the time of that meeting council for bridgeport stood up and said  of yours you were a willing listener and then all of a sudden big bad city attorney says you can't do it in you chose to listen against your will step forward now make a record of protest none of them did they were all none of them were willing listeners to this there had been a long public process they had access to the p n p records including every letter all of the or code on this proposal unless they choose do the free the process is set up and lakewood code eighteen a zero two four two zero to give the city council as you've heard the discretion to reopen the record but typically the record and at the planning advisory board and then the city council looks at that luminous record including extensive comments over many months from the appellant's here and renders its decision this is the case in the last minute obviously the last few days before a council or not the iterable process were individuals council members were denied under the structure and from the city attorney that they would be violating the constitution if they were in fact to context are prohibited and indeed at the planning advisory board level which occurred on september eighteenth just two months before there had been an active exchange among council in the parties from the planning advisory board about the  necessary refusal of a member of the planning advisory board in light of the state law protections now ultimately this issue as to whether this was a question educational or a legislative matter was resolved by the states growth management hearings board many many months later and determine that it was indeed a legislative matter but the city attorney was acting in excess of caution at that point with respect that it should be the council meeting chilling effect from the city attorney there was a process to reopen and if we had willing listeners who wanted to listen they could have it that the motion of council member finnegan died for lack of a second so the council members then moved on and in the formal process at that point polls and lost so i'm just trying to understand the dynamic of how this thing played out i guess an answer then more directly your question is that the appellant's here are trying to create we think a kind of a fourth category  was a violation of the first amendment and then he indicated that in his view that he might lose his argument if what the city attorney did was legal you know we have this treatment these e mail statement we don't know what else to say we have the e mail statement and the position taken by the city attorney's office as to why they should not why they should not talk to these my question to you is can you support the position taken by the city attorney's office as an appropriate position under the law that existed at the time as we can your honor and that w nine in the state where unlike in california in oregon where land use decisions are legislative matters and you're free to lobby your council members in the state of washington most permit and cite specific land use decisions are quite  consistent application of that well as to the advice you gave the members of the city council i think it provides a clear basis for legal advice yes your honor that as i mentioned subsequently there was a growth management hearing board which is a state review board for these conference a plan amendments looked at this and it upheld the process and up till the action of the city council and in its findings also determined at that point that the action that was taken was legislative this was months later but at the time that that advice was given it was two months after the planning advisory board meeting where there was a long dialogue about the possible conflict of interest of one of the council members and one of the planning advisory board members who went up there and actually two of them and one of them had to refute and those are issues that only arise under the appearance of fairness doctrine they would not be implicated if this were a purely legislative action so the city county city attorney looked at bass and i think out of caution did not want to contaminate the record the process moving forward thirteenth of november remedy here as we've indicated lemon we purchase and we believe controls this and would require this is not an issue that was addressed below but would require looking at issues of vested rights and finality of prior determinations and those are issues which are of course all fact based issues on which the district court is conduct no fact finding yes  is below that you'll see the e mails from this pearson to this going in october thirty and the one below that from just some counsel vernon to this pearson was on october twenty ninth the one that says if you nancy i would be happy to meet with faith belief but if but in the end it wasn't correct advice as counsel also acknowledged it's been determined this was a legislative proceeding and therefore the advice was not valid and but i think it also relates to why you have to question