so called interest in traffic safety other than and denying the permit outright and that is the decision that the district court here held as precludes of effects in terms of collateral stoffel over over that challenge to or people like me to certain factual findings made by the planning commission it was decided an issue that is not the same issue the issues were not identical of the before the commission as before well maybe they didn't have to be but it was your client's counsel that made a point of going to the planning commission and said look we've got these rights under the federal statute in the commission had already made a decision on the nd application and at the request of your client's counsel went back rescinded that decision opened the door again to an extended hearing and then issued a new decision that spoke to the you shoes which it perceived your client to have raise what's wrong with  g what's wrong with that again is that the elements of collateral stuff are not met the our clients told them that if they would deny this that would violate these federal provisions you know the example used by and the constitution does not mean that the issue of whether they planted commissions decision i'll leave it really but and the constitution was before the planning commission itself it's too much  commission have to consider it making its decision whether the decision it was about to make would be consistent with what i do but when you when you raised the issue and told them to keep it in mind didn't they then have to whether to grant a special use permit or not under under state law you know it already made that decision and your client went to it and said you can't do that and that's what prompted them to do it again and to address the concern your client raised the amount not sure how we're supposed to take the action of your client and saying to the planning commission look we got these rights as anything other than a request for the commission to consider and address those rights while the planning when your client has said right you've denied my permit i'm going elsewhere but that's not what your client did them and if if the planning commission activity had ended at that point then i'd surely get your your point you'd be right they'd be nothing from the planning commission that spoke to the relevant issue but your client did not stop at that point or seek to appeal the planning commission's decision to circuit court instead your client said to the planning commission stop right there you can't do this we have this rights under the federal statute and then preceded after the planning commission rescinded the st decision with the subsequent hearing which seems to suggest ok these issues are now on the table and your client was pretty dissipating in the process of addressing these issues newly put on the table you're certainly right if the planning commission hadn't responded to your client's communication by reopening the hearing then there would be nothing that could qualify for collateral estoppel effect but your client sent them back for  a nd bite and now we have a factual finding in response to the issues raised by your client that the district court is saying well i'm now expected to apply this because it qualifies under hawaii law for the outer almost awful in that i mean that's that's that seems to me what the certainly what the the the county and the state have argued and you've been saying well it doesn't qualify for collateral estoppel because it wasn't the same issue and it wasn't in the st denial but it don't see how it wasn't the same issue in the nd denial because your client teed up exactly those issues well again i don't believe that the ultimate decision that denies the special use permit is the identical issue i would like to say that we have an argument in the alternative that this was is absolutely not a contested case here under a white law but wasn't the premise of your client's appeal to the circuit court that it was a contested case hearing the appeal stop all of you go to circuit court and say we've got a right to appeal because this is a contested case hearing i don't think you can come back to us a long time later insight never mind if your client took the position it was a contested case hearing court declined to exercise supplemental jurisdiction but me stop you there because even going to the district court trying to get it to act as the appellate body for the planning commission in i understand you shouldn't be expected to be familiar with away law i have the misfortune of being more familiar with why the law and i got to tell you it seems to me and it seems to me i've seen in the record this was lined up precisely as a contested case hearing that's how you get the circuit court to review the administrative agency decision and so except for a moment i may be wrong about that and i will take it back but if that's the qualify as a judicial proceeding and i'm saying my understanding of hawaii law is that if it's a contested case hearing your client may not have availed itself of all the opportunities that it could have in a contested race hearing but but the law here for nearly twenty years but that is certainly the understanding i had before and it's still generally my impression i'll go back and look but if that's the case what is there to your nd argument that this doesn't count as judicial do that to me to not have the characteristics of a judicial proceeding to not allow for cross examination out on worn statements made before the planning commission there was no hearing officer there was no representation by counsel at at the of material fact on that question that was that how the case was proceeding towards trial until the collaterals are the rest motions were made again and the case went to trial and discrimination claim i'm not sure that the issue since the court decided that there were genuine issues of material fact on the nondiscrimination claim precluding summary judgment prior to its decision on it extinguish the claim you've been talking about questions one into which has to do with whether or not plaintiffs all fire has a religion but three and four hours for a plate is treated differently than non religious or how many cars would or how many people would be there explain to me why we would give produce of a fact to eight counties determination of whether it legal determination there shouldn't be any precludes a back as to what the county i mean otherwise every county would just say well the least restrictive are this is the least restrictive means of  only entity that who committed the violation is the planning this is no one else is making its own actions and then when it finds that it it is just fine that's binding on a federal court but i don't think appoint a commission very clever nation w agree ok that's why those those factual determination that may be true how much effect this would have on sanitation how much effect this would have on traffic but that does not answer the legal question of whether those  planning commission's terminations that it had a compelling government interest based on the facts before it would consider the permit application and that the only way to protect that interest was to deny the permit as the least restrictive means they could have raised that in the nexus and so strategically we felt that it would be better to argue that we satisfy all the th circuit cases on prior restraint it really seemed like this the district court had already decided that there was a connection to religion and that a prior restraint claim was appropriate and so we really focused on the case law in the light circuit on prior restraint because we believe that that case law supports us and if you look at the cases like moreno valley limited travel seattle affiliate  our rule is it it's a lot closer to the cases that have been upheld than to the cases that the rule i disagree with that is i mean in this case it gives you satisfied we still have discretion not to do it so why go through the process we just don't want to give what you know whether there is some discretion even palmists recognizes that there's some discretion but the rule in thomas is very clear that you can't waive any of those requirements if it's inconsistent with the purpose of the statute and i think you know even in comics the rules apply very similar to ours you have to look for one or more of the guidelines it's violated and you can deny only on they could deny it if there is a violation of one of those guys that appears to be how the rule applies the supreme court has applied it in that way in the neighborhood board case people who where do you draw the line what if what if they had a one hundred we can certainly do that and furthermore your honor i do want to i'm running out of time yeah go ahead like the i like to focus on some other aspects of this case but maybe the procedural factors you know that you put in a case that you got to look at the basically check off all of the boxes that are in the th circuit cases so i think the court's got to consider that and ultimately the question is whether a court can review whether whether effective judicial review and be performed on rights so all of those procedural rules basically amount to effective judicial review and really the point is if if if a judge can review these decisions then content based discrimination can't hide  and if you look at these rules i think you know you'll see that that hawaii law really does protect against that kind of thing the procedural protections are there unlike the cases that were struck down in the other night has your honor that's the big been around forever there's several way supreme court cases how it lists an unpublished circuit court of appeals but it doesn't really have it doesn't look like it's ever come up that that judges have had trouble reviewing this rule or agencies have had trouble applying and so this this is a rule that been around a long time it's supported by quite a law the people who implement the rule of have really explain procedures look at how the rule has functioned and i think the answer is that our rule does not give unbridled discretion to government officials really all you need is some limits on this question you don't have the eliminate all discretion thank your honor a few short points number one i mean it's clear that the state has waived his argument at this point i think that there's a basis for such a holy which argument the  it under this section you don't get to challenge that section this is one provision it can look at the different provisions independently and say ok we're going to knock out this section but we can apply the rest of the