morning welcome to the fourth circuit judge harrison i would particularly like to welcome the judge really we know your time is valuable and we appreciate your service to the court we already nail to your argument in our first you your honor may it please the court i'm here representing the city of salisbury in this case in which the city's occupancy ordinance is an issue and the occupancy ordinance provides that no more than two unrelated individuals can constitute a family in the zoning district issue which is our town so what we have is a district court ruling by judge march that the occupancy ordinance was vague as applied to the tenant  on the basis that the factual allegations were not plausible under its power strongly and that the occupancy ordinance on its face and as applied was constitutional and the court agreed with me that the ordinance passed the rational basis test but if i if i back up a little bit before the court held that it it instituted a telephone call between the parties and during the telephone call the judge asked if the city would be interested in settling the case and he said if you do not settle i'm going to rule against you in some way and so i told him that i would consult with my client and he instructed me to send him a letter letting him know what we intended and so during that phone call he asked me something about are the facts disputed and i said well we dispute the facts that are alleged in the complaint we were just moving to dismiss based on you know if you accept all the allegations of the complaint as true are we entitled to dismissal if not then the case proceeds forward you deny our motion that was the only issue it is not interested in a settlement if as the court indicated it is inclined to deny the city's motion to dismiss then the city respectfully submitted that the court permit the case to move forward to discovery and so that's how that was the stat is following this telephone conference and then judge maher's proceeded to rule on the motion to dismiss and instead of denying the motion he ruled on the legal issues statute yes your honor ok a procedural question about the relief that was granted because i'm trying to figure out why he he grins declaratory judgment that the ordinances  an application to these kind of mixed situations and does that mean that the ordinance cannot be enforced going forward against any landlords who are renting to these mixed groups while you're on and that's absolutely the concern of the city or was it but is there an answer like i don't understand the relief that was granted is it that this ordinance may no longer be enforced going forward against these mixed groups or is it just that the two thousand and fourteen order is void do you know what he did what he did is he declared it's my understanding that he declared that the statute was vague as applied to two brothers and a friend living together but not as applied to two sisters and a friend i don't under his interpretation of the statute was that if you have i understand your petition exactly i'm just trying to figure out from the cities perspective may you enforce this ordinance tomorrow against a different mixed group no because  and so is this just to talk about the statute our position is that the statute is unambiguous and that oh is it unambiguous because it states that the definition of family shall be one of the three following groups and then the first group is relate to unrelated no more than two unrelated and then the second crew is that there's one unrelated person you could read it that there's one unrelated person in this group of two brothers and the one unrelated person only if you allow the mixing because what happens is there are these three people that were the ten are not related because of the presence of the friend they're also not unrelated i'm sorry they're not only related because we've been confused no on it because it is confusing to try to explain that statute it's hard you would have to concede it's somewhat ambiguous at least now it's not it's not ambiguous at all and i'm sorry if i misstated under want to say allows two or more related persons you didn't have that with these tenants because of the presence of the third unrelated person cannot mix those groups under one b and allows a maximum of two persons quote who are not so related and quote because of the can never have an unrelated person not the the purpose of the statute is to limit it to two no more than two related person related or unrelated more than two related this is like who's on first this is a confusing statute now it's not here on arised i stated i thought very clearly that wanting allows two or more related persons and you don't have that because the presence of the third person is unrelated under one b it's a maximum of two persons who are not s the one person that is to really know that if you under want to be it's a maximum of two persons who are not so related the two brothers are related so they don't fit in that category you cannot mix the categories to have related and unrelated people living in the same and for the house position it is clear that you can't mix them you're relying on the language one of the following groups right in the interaction ok right in the use of the argument or one of the following groups that's what addresses the mixing in your mind exactly plus the use of a colon and semi colons to show that there are three separate groups the third group is a functional family under one c but adams housing did not apply for its tenets to be considered a functional family and so what's going to happen moving forward based on judgment as decision is that the landlords in the city are now going to be able to exceed the limit of two related persons and it could be more than three people it could be you know twelve people living in the same house is your question i understand your position that the language of the statute is clear but are you also relying i mean it does seem to me that even if it wasn't clear then it's clear now there's been an enforcement action it's been approved by the board is there a landlord in town who doesn't know today that you can't do this mixing now they knew it from newspaper articles from explanations issued by the city they knew it before this but they definitely know it now i mean for business purposes right you can clarify the meaning of the statute through enforcement actions right i would think so your honor and if you look at the order to reduce occupancy the the enforcement officer who issued that specifically wrote you know that this was exceeding the statute because there's no mixing of all the related and unrelated people allowed and so the senate was not unclear with this interpretation and then judge martz multiply it is there are by going ahead and accepting as true the allegations of the complaint not to deny our motion to dismiss but to go ahead and grant affirmative relief to adams housing and just miles went ahead and agree that there was discriminatory enforcement even though that was an unsupported allegation of the complaint and there is absolutely no proof of that and that's not the way that the procedural rules are supposed to work first of all and secondly i mean absolutely can't just accept the allegations of a complaint as proven fact in order to great relief to a party that hasn't even filed a motion and so multiple errors  and so in in essence the court created a fourth group that doesn't exist in the statute told us that we should have had a redundant provision that prohibited mixing and then said adams housing you're right the city has done all these horrible things and therefore i grant you relief and here's your declaratory judgment and that's absolutely not the way that the procedural rules are supposed to work and it denied the city its substantive rights in this case i mean we should have the right if our motion was going to be  respect to go forward to discovery to present the court them with a motion for summary judgment following discovery that gives the legislative history of the statute and how it had been applied to show there was no discriminatory enforcement they had not you know we had a right to because it's clear in his memorandum opinion that he relied upon those things in order to come to his decision well actually for transcript i refer to the adams claim that there were others in the community would reform it uses  you know for starters and then to show that those allegations of discriminatory enforcement and inconsistent decisions and i think there was an allegation of retaliatory inspections we had the right to discovery and to prove that all those allegations were false and judgements he just accepted those as true in making his decision in this case and you're supposed to accept the allegations of the complaint is true for purposes of evaluating a motion dismiss but not for purposes of transforming it into cross motions for summary judgment which is what he did but without discovery so in every respect that the decision was wrong legally as a matter statutory construction and constitutional law and then also procedurally with respect to how he proceeded so i think your honour's had asked for supplemental briefing regarding jurisdiction and if you'd like of address that briefly like i said the city feels as if it cannot move forward with enforcement now and that the landlords around the university are now going to try to rent too many more than two students and that the city will be handcuffed basically and its ability to enforce its limit of two related persons to constitute a family under one of the statute and so that definitely i think brings it before you as something that's not moot and secondly you know the city is not aware of what adams housing is doing or how many you know tenants it might have in one  point you know basically the city goes by when it gets tips which is what happened in this case they got a tip that there were too many people living there and so you know i think it was incumbent upon adam's housing in their so i'd like to address this issue at first if that would be appropriate with the court please do and in doing so i had an opportunity to review the court's order in which reference they the city going forward from applying its ordinance to any landlord renting in this kind of mixed situation some people who are related some people who are unrelated i think that this effectively enjoins an ongoing city policy situated landlords both the adams and others if your honour's persuaded that that disposes of the newness issue oh move on but i was prepared to address in one of the court's order which obviously presented concerns to me i wanted to focus on the two prong test as set forth in the weinstein vs predator case and incidentally by analogy the roe versus wade case which i think is  albeit obviously metaphorically relevant nonetheless attests fairly nicely here so number one this case like roe versus wade deals with a scenario that's very finite and it's gestation as they say in reverse has weighed in this case you have a one year lease so we prefer that it's foreseeable potence also very and with  adam specifically that almost any dispute whatsoever is going to head of a very difficult time surviving a litigation process such as this is going to be the natural expiration of a lease given the nature of the lease itself and given the nature of the salzburg community in which you have a very high rental population you have a sizeable student population and you have the industry in general which tends to keep lisa shorter as opposed to longer her residential purposes so i think that would satisfy the first part of done test saying that it's fair to conclude both as a matter of fact and as a matter of law that this type of case would not survive the ordinary that initially in our complaint that as a matter of fact this happened one time subsequently so we cited that both in our supplemental brief and i believe it set forth in the very tail end of the complaint the facts as well were that adams were required to terminate a second lease as a result of the city's ruling in the lease that's at issue in the court record so as a matter of believe that what set forth on page two hundred forty one of the joint appendix where the district court writes a footnote describing the procedural history of that phone call is in fact accurate but the footnotes that the city wanted discovery did after the card had been played so to speak that the ruling would be likely to be unfavorable against the city at that point discovery became desirable for the city we would prefer that prior to that point discovery was not desired by the city because it went for the her real juggler and moving to dismiss so while slightly outside the scope of the record i believe that you can read between the lines of this footnote and i represent to the court the judge must ask the parties whether for purposes of this motion any facts are in dispute at that point the parties agree that there are no relevant facts in dispute for purposes of the twelve b that was that is notice to you that it's go the likely outcome of this proceeding but the terminations of that phone call so we had an idea as to what was going to happen is likely why opposing counsel then wrote the letter that he did saying that if the motion to dismiss was denied the city requested discovery that as we've described it in considerable detail throughout the record you have a law abiding living relationship between two brothers and a friend there's no allegations to the contrary i do feel like there is a very serious  effect because the court in granting this sort of vagueness challenge ahead to get past the idea that the law is clear that in a commercial context like this we expect commercial entities to make inquiries if something is unclear and the district court said that doesn't apply your because of these inconsistent rulings it would have been fruitless to ask questions because nobody knows how this thing applies but in so his the reasoning in addressing the vagueness challenge was premised on the resolution of this factual dispute as to whether or not there had been inconsistent applications of the statute and that is very much contested right well i don't know that you have to deduce that based on discovery i think you can you can look at the s on clear commercial entities like landlords are supposed to make inquiries go to the board ask them i'm thinking of renting to this next group i don't know if i should what do you say and then the district court responding to that well established law says it doesn't apply in this case because of these inconsistent enforcement actions but what inconsistent foresman actions the city denies that there has been any right to the city also agree that the facts are undisputed at this age in the proceedings and i believe that on its face and based on the facts that the city acknowledged very early on in this process you can reach the conclu is no longer vague that the one thing that is clear given the enforcement action and then the order being upheld by the board is that at least going forward it is no longer an open question whether you can run to mixed groups should judge botches opinion be affirmed i believe at that point it would then be clear why isn't it clear now judgments and why isn't it clear right now based on h b a a hearing in which they adopted that original order saying you may not mix groups because that h p has taken a confusing variety of positions on that same issue which is reflected in the record alluded to by this court and is also contained within the allegations of our complaint that it's almost an ad hoax case by case decision making process so that it's not  has come out and said this is the rule if it's being unfairly in force now that's a separate problem that's a selective enforcement problem but it's not me i mean anyone can look at the answer to a yes no question can you mix the groups the answer is no you can't the problem it can be answered by the united states just for court and that's why i think it's answered by the united states district court it's a state law question i think the h b a gets to answer it and then i thought that maybe you were appealing constitutional issues and that's set forth in a very first paragraph of the city of salzburg brief that was filed in this case it was acknowledged agreed in fact affirmatively established by the city of cells very that the city of saul's very believe the constitutional issues that were appropriate for the jurisdiction of the federal court were at play in this case adams housing presented those same issues in the same context that these are issues that are constitutional in nature to can be read by one person one time it can be read by one person a thousand times and you're going to be no clear on that thousands time as you are on that first time as to what that almost impossible to read it from beginning to end it's that tortured and its style is that tortured in its wording and i believe that this court can conclude on a paper tech of that statute that it's inherently think i don't know any alternative conclusion i don't know the three people whether it's this court or elsewhere could read that statute and reach the same conclusions it's like  that leads to three separate equations that in itself is grounds i believe for judgments is wrong as judgments ruled it's murky at best and i don't know that one of the following groups living as a single housekeeping unit two or more people who are related or doesn't say or semi colon d up to a maximum of two persons who are not so related but why doesn't one of the following groups kind of answer this question about whether and it doesn't say one or more of the following groups some combination of the following groups it says one of the following groups and then it gives you a or b it doesn't seem that hard to me to follow right but language  or that is as true today as it was in two thousand and fourteen that today you genuinely just have no idea whether there's this ordinance permits mixing or not notwithstanding the fact that your clients have been served with an order that says heads up this does not permit mixing you and influence their decisions moving forward with their very next lease under similar circumstances because now they're on notice so they were on notice however they're on notice how is the as applied to them as set forth in their now is the statute has been enjoined going forward on the ground that it doesn't give notice but there is notice now not one i notice of any degree of clarity when it's inconsistent with current rulings that are in place within the same founders so are you referring to the fact that a lot of not before me uses any community we don't know whether they have a plot for received be the procedural posture of this case judge must set forth that the parties agree that the facts are unspirited adams housing would proffer that the facts prior to judg disclosing the lightly outcome of his rowing were understood and the record contains allegations as well as the underlying transcripts in which the allegations were dealt with that thing h b a citations set forth in the pleadings however the two forty one footnote spots would have to be given weight that the parties did not dispute that component parts at that particular that phone call that not only was the motion to dismiss going to be denied but something i guess a motion for summary judgment that wasn't made was going to be granted in your favor i think the specific wire that was used by judge boss was right and i believe the judge haas indicated that it was ripe for a declaratory judgment ruling at that particular juncture there was no dispute at that time until judgments suggested or leaned in the direction of the likely outcome at which point the city then follows up with what w police would be a test person too strong of a word but a chance to resuscitate what is the likely outcome by saying we now need discovery although we did not need discovery prior to knowing the likely outcome of this case and i think that's a fair conclusion that's memorialized by touch moss on page two forty one in the opinion in the foot just a quick question it seems like a lot of your arguments come back to this idea that there's some selective enforcement going on and right to the district court on the selective enforcement claim and there could be discovery in the district court could figure out whether in fact there has been selective enforcement here i would not argue that selective enforcement is material to the ruling on that now so i think my my address of selective enforcement was i think request of this court i think we can can i just at in that case can i follow up because i thought you were answered my i have a concern that this ordinance has been enjoying going forward on the grounds that people don't have notice as to what it means but in light of this in forstmann action it certainly seems as though going forward whatever was the case in the past there is now it is now very clear that nixon is not allowed and i understood your response to that to be no this is not new news because there selective enforcement is that not right i think that's a fair about all to the contention that it's clear going forward that so does in fact rely on your consistent force not moving forward just as a matter of course and i'm out of my time but if there's anything specific that this court would ask a man be happy to say no thank you thank you i think at least i would really like to know your understanding of what happened here and what this footnote means on joy depicts two forty one what happened with the phone call it says both parties agreed the facts of the case were undisputed did the city agree to that no your honor it says and not agree it says both parties agreed the facts of the case were undisputed and discovery was on unnecessary on the call both parties consented to the issuance of a final opinion however then you followed up with your letter how how do you how do you take that in a phone call i pointed out that it was a motion to dismiss the court was required to accept the allegations of the complaint is true that is not the same as saying the facts are undisputed discoveries are necessary i don't know how he could take that from what we discussed in the phone call and it ignores my letter entirely when it says both parties consented to the issuance of a final opinion in your view you can see in the issuance of a final opinion on the motion to dismiss any doesn't ignore your for your letter entirely because he mentions that the very next thing in the district court does acknowledge you then send a letter that if the motion to dismiss was denied which seems consistent with you understand in that the final opinion would be on the motion to dismiss because that's the only thing that was outstanding at the time then you still want to discover a correct right right i don't know how saying it's a motion to dismiss and agreeing that the court can rule on the motion to dismiss somehow transforms into party that had an you know motion on my motion to dismiss so it just went well beyond what the rules allow and what was at issue and when i say ignored my letter he obviously states that i submitted a letter but then he ignore the content of it i think you may have i think judge lee asked you this earlier but what could you clarify for me what discovery you think would aid the city at this but that's because it would stand to refute the allegations of the complaint that there was selective enforcement inconsistent decisions retaliatory inspections i think mr rahman repeatedly said during his argument that like he assumed as did judge march that there were these inconsistent decisions but there's absolutely no facts in the complaint to make that a plausible claim in the first place even if there were facts in the complaint to make it a plausible claim it can't be accepted as proven fact in granting affirmative relief to out of housing the proper procedures for the court except it is true in denying my motion to dismiss and then the case proceeds forward as is routine phrase means and so for instance if a comma is in a certain place you're trying to figure out what the phrase after the comma means with no border to formulate a person with the two brothers we are related the two brothers are related which would account want to twice they don't it's not a counting process if you're under one you can have two or more persons who are related ok the presence of the third person who is not related to the two brothers means they don't fit in group a group b is up to a maximum of two persons who are not so related here and after referred to as unrelated persons so who are the two persons not related to brothers they're related so they can't fit  group either because you're then you're allowing the mixing that's not allowed so in addition to the fact that it says one of the following groups living as a single housekeeping unit ok and in addition to punctuation you also have the definition of unrelated which is not stated there in the judge's opinion but the definition of unrelated persons as quote who are not so related and quote so we know that they're different we know that they're not allowed to be mixed based on all those things one of hypothetically i thought the statutory language you know it's it's not into hire really clear one could be confused about it i mean is that the end of the vagueness challenge for you or is it ok if it's not exactly crystal clear in this context where we're talking about a commercial regulation commercial entities who are expected to make inquiries if something is less than one hundred percent clear it's a civil penalty it's not a criminal case i mean how high is the bar here i would agree that it doesn't have to be you know you know when you're looking at ambiguity of statute the there has to be more than one reasonable interpretation of the term and we would submit that adam's housing interpretation is not reasonable based upon the language and the structure of the statute and there's therefore not ambiguous a lot of law on this right saying that particularly in the commercial context it's different in a credit brian a civil context if you've got a question about a statute if it's not drafted with one hundred percent clarity you should ask you should ask him for some reason you know these are unsupported allegations of the complain again that well you know we couldn't ask because they wouldn't tell us the truth or something like that what the reason they don't want to ask is they know what the answer is and they want to exceed the two person  they want to rent to more students so that they can make more money so i mean it's very convenient to say you don't understand and that you couldn't ask because it wouldn't of how that's not true i think it was very clear if you don't think the statutes clearer than yes any inquiry would have made it clear i think that the enforcement action the order to reduce occupancy itself the administrative proceedings themselves show this is what the city believes the statute means and how it should be interpreted and so it's very clear and then during the ministry of proceedings adams housing never argued that it was vague or that it violated their constitutional rights it was only later when they went to the circuit court state level in their petition for judicial review that they have for the first time argued that it was a violation of their constitutional rights and so the problem there is that they did not exhaust administrative remedies you have to bring those constitutional claims before the administrative body so you have that issue and yes it's a state court issue i agree with you but they want to head and filed a complaint that was based on the united states constitution equal protection due process it's so the the city you read remove it is did answer your