i think that portion of the case really is that simple straightforward it's when we get into some other arguments and issues have been raised that to me it's going to confusing i get a little twisted up so tantalising that we have to start with the mind day before the city council had to call that i had a deadline before they could get it on the river about so there's absolutely nothing that occurred in those under nine days certainly nothing was rusted registered voters the city he also mentions then your argument whether you're focusing more on the time that it was too late by the time the petition was submitted to get it done any ballot before november you know all this was taken care of them four of them and what extent is your been focused on that and to what extent is it that before in addition before that date occurred your client had in fact turned over all the pages of signatures so that it was understood sufficient signatures if you had never beauty hidden the other signatures denard you ever had them separated him from the petition whatever and  city was never aware of them and the date comes in november would that have been a first amendment violation and i'm under my or is that interfering with the right to circulate honor the way i understand it in the description mire of why the supreme court concluded that the circulation of the petition is core political speech is because it involves interaction of citizens the petition circulator is going to people and if your client had interfered with the efficacy of a lease the part of the process covered by mark which is getting petition signatures signatures on the petition is that potentially a first amendment violation and he corrected it so i'm wondering is it the fact that he corrected it in time is that why my or is it relevant or is it just because he what he did was after the petitions have been circulated my understanding the way i've been approaching this yar is it's because his actions took place after circulation was complete once the mr johnson and the other petition circulators submitted those petitions to the city they were no longer circulating them among the populace that if they were done it was now part of the city charter and the texas election code on what was to occur with those assuming that  delay from april sixth april twenty seventh in producing all of the signatures it's undisputed that as of april twenty seventh the county which is mr had all the signatures and again that's months and months before the deadline for the city council t file suit challenging that petition he found that lawsuit approximately eight days later on the full six mr johnson's counter claim was filed in full twenty first and so it was filed in between  with ill will withheld some signatures but then when the countersuit got filed i thought better of it changes of mind got scared and filed the rest that's a subjective intent and i still think because of the timing issue there's a very big problem that if the right that is being asserted is the right to get it on that november or perhaps a subsequent ballot any interference done on april he did correct before well before it could be impacting mr johnson's right and i as my time start to take down i think we have to at least even though i didn't brief it extensively i think we have to at least touch on rightness still had months and months to act and the outcome of the ping state court lawsuit could well have decided that issue if the court decided that city was right it couldn't be on the ballot as a matter of law if the court said the city was wrong within the city council had a ministerial duty to put it on that out so say that something this arrest did interfere but that right at that time it was speculation it was uncertain occur which is the definition of right facts and what we've had this morning is long extensive arguments about the facts in the defendant is asking the court to construe all the facts in the favor of the defendant that's problematic in any appeal but it is all the more problematic in this appeal because in two thousand and four this court decided on bob kinney versus weaver when you are appealing a qualified immunity case the factual findings of the trial taken as stated and as you've seen from the briefing we've gone back and forth and just as a courtesy and the completeness of the record i've shown that all these supposedly undisputed facts are in fact very much disputed but the bottom line remains the court if you want to call intercepted withheld harvey want to phrase it that intercepted some of those petition signatures and he held those signatures from the city clerk he started producing a piece in the old first when i was hired by my client and asked what was going on he turned in some of the signatures i threatened to sue and he kept dragging his feet and then finally when we filed suit he turned in their remaining signatures there is an essentially seems to be an argument of the facts in the argument seem to keep shifting from moment to moment that there was no harm done  burns the one nine hundred seventy six supreme court case which says the last the first amendment freedoms freedom minimal periods of time and questionably constitutes a reputable injury and so while this city attorney is withholding and to the ballot box and so looking at the constitutional history or the supreme court's history on this i would remark is not the best case terms of being on point if you go back to the earlier cases for example in one nine hundred sixty eight  was williams versus rhodes was one the early supreme court cases where the supreme court held that there is a first and fourteenth amendment for third parties to get on the ballot so that's where that term access to the ballot comes in so it's not just merely a matter of as in my or your circulating petitions is a broader issue of access to the pallet to the ballot through a third party if you're trying to get your candidates on the ballot and  thirty four the libertarian party was trying to get on the ballot i believe that was in texas and this court said the first and fourteenth amendments forbid a state from using its regulatory power to unnecessarily burden access to the ballot now in those cases you're looking at a balancing test to determine if the regulations are reasonable burdens on a party or groups access to the ballot i would define the defendant to come up to any reason with any reasonable explanation for withholding the signatures if i could use an analogy make sure you've moved on from rush over to mars you still on us but most mars case  you have the initiative process you or whatever the process was there you became limited that way but there was no interference with that in this case you know i'm not disagreeing with your reading yourself into some other case law reading so it is they could have eliminated this altogether there's no obligation to have this kind of process so does the constitution involve merely because the city  is that then take you to the cases that you want to see to deal with when we should really dealing with states primarily i guess vocal governments to having elections are you trying to see who the candidates are going to be is that what we're talking about here is that principle arguing here is that under meyer clearly the city charter had created this rider now the first and fourteenth amendment rights to teche to the exercise of the right and in there's the broader principle of many of these cases that i've cited that the states can regulate their elections and nobody disputes that but once they set those regulations first and fourteenth amendment rights attached to getting on the ballot to having access didn't do it the typical way i didn't walk through the front door with a gun in the mask i have ducted employee and forced my way in through that door and so therefore it's not really bank robbery by any competent city attorney who should know that you can't i tampering with the government record for one thing i'm coming i'm trying to see how that interfere with the first minute rights because if i'm wrong please strike me i thought it was while the city turning was withholding stagers the petition still got to the city council and they had no reason to think they were in adequate number of signatures and they directed that a lawsuit be found that had nothing to do with the lack of signatures that's where the factual dispute them than that is their version of the facts is correct but they had not completely resolved the issue right then then the you did have to file suit to get the signatures but that didn't really affect what the city hanson was doing it doesn't seem to me they'd already filed a law suit saying we're not going to put it on the ballot and then the signatures it seems like to me the lack of signatures was never an impediment it never came into play one way or the other as to whether this petition was going to be placed on the ballot or prepared to act on the merits of it one way or the end of so i'm the missing link to me that i don't see is how your clients first amendment rights were affected well because the city council saw the petition and i never questioned the lack of signatures it was always to this petition was always addressed by the city council on its merits and that's what i'm having had of this the lack of signatures have anything to do just the city council deciding on bases have nothing to the signature that this isn't a proper initiative petition or whatever you call it under the charter and oh you'll get a court to say that and  time of that and the fact that for an independent reasons which judge owen is in asking you about it and you know has given money back into that analogy it's that it doesn't fit the charters requirement and we don't have a court say that  you can deal with the signatures you want to or not but you're going to lose your right to be on the ballot if their lawsuit is successful based on subject matter that the script of the two don't necessarily i slate each that you've got to look to trust that from our perspective or the perspective of the trial court adopted is that mr us and the city council were desperate to keep this off the ballot or using everything at their illegal but in terms of an actual first amendment violation i don't see a causal connection in this case between the the the period that a lie in turning the signatures over to the election people and that it didn't ever affect anything that was because the petition was fully aired it got resolved it did not keep it out of them that it did not keep from seek counsel it russ did resulted in i completed the first amendment violation here i would just i guess my concern is if the government is free to get criminal charges brought against oh i could go into the this is a crook ability any of everybody is like that i wish we could do that that's why it was the private right of action for civil rights because unless my client going to case this the corruption in the county is not good stuff that's why we're here and so now is the government is for you so why let's just hide the signatures and we'll try this of this and this is a last resort they will say there aren't enough signatures and if we get caught the authority to put on the ballot in the city council never it never crossed their mind to keep it off the ballot because of lack a signature that i adamantly disagree with that's that's going with their version of the  a reason we're not going put on the ballots the lack of signatures and they had plenty of time to put it on the ballot before they chose both sides aside to settle it so i don't see how there's any causation between what rested which may have been illegal and wrong resulted in a first amendment violation because it was up to the city they were fully informed within plenty of time to do what they thought was correct in it they did so that's that's not the evidence but well your honor i mean what is the evidence them the whole point he did not affect their decision whether put it on the ballot or not they made a decision about what to do that this petition totally independent of any knowledge about adequacy of signatures fired lots of bad things should happen to him but the question is is it a first amendment violation when he did not have the authority to put it on the bow somebody had to hire me to vindicate his right to get this on the ballot and i think we're looking at things retroactively again say oh well we fixed it before this became an issue in november but somebody had to hire me to make sure this was done really had to how are you in your honor when your heritage is none of our business but there's a clear to a judgment and if that had been successful that if they need a lawyer to defend that and they had every right in the world they would regard it as the first amendment violation to say this is not proper subject matter for national so i don't and then with fairness to your  i think i would start a job by addressing some issues about the signatures and in the city council  this jackson the council members affidavit as i recall as i understand it says that mr ross never told us that he was withholding signatures never told us about the number of seniors that got submitted to the county elections in  and again and accepting that is true the lack of signatures would be a reason to keep the mission above the ballot so if even if mr russ failed to inform them that the county elections in the district are didn't have enough signatures that doesn't cause the harm of keeping it off the ballot because that would be a reason to keep it off the ballot not took place and on the ballot and the lawsuit itself i mean speaks for itself it was on the grounds and under texas law which creates this initiative right that was not a valid legislative act in that initiative and therefore under texas law there was no right to the initiative on that subject i mean yes you're taking actions to keep this initiative off of the ballot there isn't some briefing on appeal also about retaliation for the exercise of first amendment rights is that claim actually in this case it was not in the amended compl your honor and in the response to summary judgment there was no analysis of the elements of retaliation claim that's not true at i believe it was in the response but there wasn't a detailed analysis and that's the first time it came up and john doe number one be read and in the district court order the only authority cited is my or the current and not for the reasons we discussed previously i assuming it applies to this situation i don't think it's