defendants in this matter and that summary judgment issue is nearly focused around the issue of the statute of limitations such limitations as it applies to conspiracy claim for st amendment many times to video clips in your briefing and i could find them in the record did you include these video clips in the record yes they were filed as a part of the summary judgment motion well that's some issues you have to have an in the appellate record deano if it's part of the record on appeal i can i guess i don't judge a i believe there were supposed to have been made a part of the record but i was unable to find them ok there are multiple references that are a part of what was included in these video clips that were evidence as exhibits attached to the summary judgment motion so well one thing that you do in your brief is you try to incorporate by reference the arguments you made to the district court your summary judgment motions and of course we don't allow that even in order to preserve an argument us you have to make it  right otherwise everyone would do that and they'd never have any page limits or word limit yes your honor and and in in that in response that i do cite in my briefing to the specific overt acts that should have been have to have been something that would chill an ordinary person from pursuing their st amendment rights absolutely judge would only have controlling case law that says being named in  as a matter of fact if you're upon review of shiro if you're to read the majority opinion and compare that to the dissenting opinion it appears like there are two different cases that are going on yes i would agree that in and of itself filing into the rd or a judgment action may be entirely proper and in the court reviewed there and i wasn't really made aware through that case whether or not it was city coun packets they were seeking a judgment on whether or not those were those fell into the open records act and how obscure that issue may have been i'm not sure but in this case there were no obscure  no obscure issues to be decided by the judge in the declaratory judgment action as matter of fact and the sentence shiro it talks about how the motivation or the declaratory judgment action was that this person embarrassing statements to about us and we want to prevent him from making embarrassing statements so we're going to miss declaratory judgment action that appeared to be the motivation intent behind i'm at and so i would suggest that shiro is fail to incorporate in the actual evidence before the court and that there was substantial evidence there to at least surpass summary judgment with respect to overt act was within the the limitation period because that's what the district court had a problem with is that none of these overt acts were within the limitation period and the only way i think it's possible is that in january  and seventeen a letter but the district court found that you there was no evidence linking f e m to the letter and you don't challenge that on appeal so i'm not sure how that letters coming in at this point i that because they are they are attacking the efforts of the where do you challenge it in your brief on appeal that's my problem i think you refer somewhere to some material facts that you assert in the district court but that doesn't do it for us  conspiracy and then you've got to have the overt act and you don't have anything within limitation period i'm not sure how you get there ok it is the reference that i include in the opening brief to the the attacks on the initiative petition that was being circulated at that time but the petition had already been signed by that time and in we're talking about different initiative conspiracy yes your honor how the the letter talks about a specific accusation in the body that talks about how the sewage cleanup  are false and misleading and that's while the f p m case was pending that's why that was being litigated so we should just imply concerted action and if ems involvement in that letter i believe that was an undisputed fact in the district court that they were discussing at the end little question what the face of the letter said but you've got to show specific concerted acts show the agreement between the parties and i don't understand how you're the face of the letter simply because it refers to f shows a specific converted sun shows a specific concerted action or agreement between the parties with respect to that letter ok and that was one in the city council meetings where there was an admission what we're talking about here is the action with some of the manor so now you're just switching to the statement it takes the city of the hall to do this we're now talking about the statement made at th city council meaning not specifically that but that is further evidence of the city's actions in order to and they actually say this it it's hard to imagine that city council says we need to stop his petitioning efforts and it takes a city as a whole in order to do that and that was evidence presented to the district court but it is the legal harassment  seeking as opposed to share where they weren't seeking damages or any costs or anything like that in this particular case they were seeking attorney fees they were so they were seeking to chill his speech and in effect bringing him before the court continuing to legally harass him was certainly have been it's of that in also the finding by the open records civil pills in the f b m are specific finding which was made a part of his record was that f e m a filed the lawsuit in order to prevent or silence howard sure from speaking out against city employees from the mayor and so that litigation was pursued loop legal harassment in order to silence him from talking about the city and that's a that's a unique finding in this particular case because one would think well you have the right to sue somebody because they call you a bad name but in this case that's not what happened what happened was a suit because he was commenting negatively about city councilman about the mayor who also happen to be the administrator of the nursing home on t manner in and it is that legal harassment that is prevalent throughout all of the conspiracy alleged in this particular case at the beginning of this matter  that's what i think is fundamentally important to understand about this particular case is you have an individual that is upset about his city government not able to i guess fix a problem with sewage rossouw it emanating from the from the sewer system it's coming out onto the street it's continuing to happen in the only thing the city does is they go to found the manor and they help clean up their property there's a mare in she's the only person that's getting any assistance with raw sewage coming out all over the place and that begins the case in so there is an effort by the city as seen in a letter or an e mail written from the city attorney to other members including the mayor where they say they're not going to comply with the open records requests i'm not going to respond at all and  that i guess is agreed to by everyone involved that agreement and not only that agreement but that agreement to not expose this business to i guess any to any embarrassment around all of all of with that and it is the legal harassment the filing of of a legal matter and it can be civil in nature as well there is no prohibition and there's for th amendment purposes for the medicine  so raves race class based discrimination and unless you have any of that here it is not racial discrimination here what i have not racial discrimination no your honor but what i have individual i have problems saying that word in individual in the actions our actions take in reflection of one's constitutional rights well that's just restating that that we do discuss it in the malicious prosecution claim our case law requires a criminal action we don't have anything like that here in in beatles versus wilson and discuss a vindictive prosecution malicious prosecution abuse of process type i didn't mean to say the use of process but but but that claim is brought again under nine hundred and eighty three dollars is not your malicious prosecution claim essentially yes your honor and beadle was not that it was a common law oklahoma case right it was a common st amendment retaliat essentially there are a lot of different claims that kind of bleed together or march but the essence is this legal harassment which continued well beyond the  and mayor clasen subject of course to the court's questioning of the court should affirm the district court for all the reasons of forth in our brief but also for a handful of particular reasons and one is the there was no overt act that was not time barred in this case of the nd is that as this court has touched upon a malicious prosecution clim and rd a section nineteen thousand and fifty three conspiracy climb has been very narrowly women did both by the supreme court and this court to racial discrimination or some sort of other class based act it would fall within the statutory period correct correct are ok isn't it fair to infer that where this is sent by the city when the mayor is also the owner of f p m that they that it was in fact an agreement to send a letter on behalf of both the city and f e m your honor i think there needs to be more evidence than simply the fact that the mayor happens to be the owner of a private business and if you if you read the letter your honor here here's i think the it is the problem the district court had with the letter and the reason the district court rejected the letter as an overt act is because the let the language in the letter that the plaintiff is upset about the letter quotes an allegation that the plaintiff has made publicly and it was the plaintiff who st associated the city with the nursing no by claiming that the city was funneling resources to the nursing home so it's the plaintiff who st associates the two and the city does nothing more than what i think any governmental entity would do they publicly refute the false allegation now i can't understand how essential e the city allegation of a conspiracy is substantive evidence that there is in fact a conspiracy well the sit near the district or kind of got that letter wrong it made some fact findings that were incorrect about the letter st of all is not t rue it referred to it being related to a previous on it when in fact the letter stated something about it but generating ject and generating funds or needing to generate funds to pay for the oklahoma t the plaintiff was deposed in the case and it's undisputed that the plaintiff agreed that the city had to pay for the socket the bishop in the city saying in a letter to its citizens that oh by the way we've got this audit everybody knows it's requested by the plaintiff and we're going to raise your your monthly charges to pay for that audit that was requested by this plaintiff it why isn't that retaliatory or potentially retaliatory your honor because why doesn't it chill his st amendment rights well it doesn't show his st amendment rights your honor because all it is is the city publicly refuting some public allegation that he's made and it's a little in my view have to it's telling the public that by the way you're all going to pay some monthly charge because of this allegation that was made and the plaintiff in his deposition did not  speech i mean we all know who the letters talking about you can't go downtown to the caf i don't think after this one well the plain i think what the court has to keep in mind a bit of a anywhere where the where a governmental entity is prohibited from refuting that an allegation a false allegation that's made about the city if you take it i think any governmental entity and someone sa the government this entity whatever whatever it is is funneling resources to a private entity can the government not point if it's about a future audit and not  audit how do you know there are false allegations at this point the city saying we need to collect more money for a future audit right why did they need to attribute that to any past public allegations that the plaintiff has made i mean the question is isn't there a fact question about what their motive was in sending this letter i sent your better argument really that f p m didn't have anything to do with the letter  yes your honor and there is no evidence that found the man or did have anything to do with the letter we had discovery in the case and there's no evidence linking fountain view manner to the letter it's a letter that the city sent and there was never any evidence that anyone with fountain view had any pre arranged plan to send the letter to draft a letter to go through the contents of the letter and again this made the statement at the city council meeting that he's referring about about needing to stop the efforts my recollection is that was mayor clase right yes what about them and she's i don't but i think there needs to be there needed to be more evidence on summary judgment i think when you look at a summary judgment standard and you look particularly at this what particularly at this letter it's all speculation and conjecture there's no evidence that there was any prearranged plan or that the intent of this letter was to chill a speech the the face of the letter which is all we have in evidence well how can you say there's no evidence it was the chill speech when she says if we can get everybody to come together to stop the petition i mean the petitions are speech correct so i mean it seems like there's an intent to chill speech that i think there's a there's a line between intending to chill speech and a public official at a public meeting commenting on an audit in a petition i don't think that the mayor leaves her st amendment rights at the door when she becomes a volunteer mayor to also speak publicly about issues in front of the city and i don't think that everything she says is just automatically attributable to fountain view manner which is a corporation which has other owners which has other interests and your honor the there is you know plenty of case law that talks about local officials don't leave their st amendment rights at the door when they become a public official  i think probably what's the problem here that nobody's really talking about is a conflict of interest i mean if she's definitely in the middle of this as the owner of this facility the plaintiff has spoken out about the use of public monies to help prepare the sewerage system for that facility and then she proceeds to say where she says in the meeting and a letter goes out with the city letterhead i mean really you don't think there's no concerted effort i think the problem is it's sort of a circular argument your honor in the sense that the plaintiff is the one who originally associates the two together and at that point it's really impossible for either the nursing home or the city to refute the allegation by its essence refuting the allegation you're talking about and it is the governmental entity and the private entity and it sort of sort of a catch plaintiff makes this allegation publicly that the city is funneling resources to the nursing because the nursing home's owner is the mayor and then when either the nursing home or the city try to say that's false that is not happening he says was hot you have now acknowledged a conspiracy by responding it's sort of a catch twenty two for i think the city and the nursing home and i do want to just talk about a little bit the record evidence that was brought up in his deposition the plaintiff admitted that the only city resources he saw at th nursing home were outside the nursing home service in a public sewer line and he admitted in his deposition that that was their job and that there was nothing wrong with that and it's also in the record that that sewer main service more than just the nursing home so prosecution climb under one thousand nine hundred and three arise out of an underlying civil proceeding grounded in the st amendment it was a st amendment retaliation claim in that case it was a pro se plaintiff who described the prosecution as malicious and that's the way the core refers to it as sort of an adjective and then in a footnote there's some dicta saying you know it's a pro se plaintiff if we read the complaint broadly he might be alleging a common law malicious prosecution climb your honour's if there's no further questions of me i do want your respectful of mr craps or allows him to address the court's fine thank you thank you your honors with respect to use some of the questions asked in regard to the letter with mr powers i wanted to point out that can you pull there was anything improper or unlawful about setting the six dollars surcharge that went along with the utility bills well i think the point is the statement in the letter you know you know why are the bases for this increase and you're below is because of this audit that's that's the chilling part improper we're looking at is the basis for the city's action ok whether or not the plaintiffs claim against syria support to the extent that any issue comes up that as to whether or not the surcharge itself was retaliatory it was an argued below and so that would not be the point there  in addition the the letter was directly responsive to the citizens petition which raised allegations of wrongdoing against the city so it was responding to those allegations directly which governments are entitled to do the federal government and state governments as well and if that were to deemed as retaliatory action against someone making allegations then it could cause problems in the future with future cases are there any other questions that the court would have for me i don't want to waste me any time i don't see any you're hearing ok well i don't have any other points to make ok thank you thank you all for your arguments