ok you you may proceed with your honors i submit that the essence of this case can probably be found best in looking at the two thousand of the letter that was sent over to the preclusion is it is more harsh than even a summary judgment because you have no due process review of the lower decision of the court in this case we have a city court that lacks jurisdiction your client could have appealed the adverse ruling in the state court right no why not because it's a violation in fact when we tried to appeal we as a council pointed out on the other side everybody was a little bit confused we thought we had a case out of justice court a county court and it wasn't a civil court and it turned out there wasn't even a proceeding yet that they did in having a process for having a civil war case going up from a violation in the other court and in the circuit court and so fact just last week we had another one brought up on a different issue and when they finally found out they didn't have a process to get it up there i thought your opponent cited pretty clear statutory authority that said you can take an appeal i can't remember to what body you appeal but i thought there was definitely a lot of news in the feel if we'd done it it wouldn't have been of any use anyway because the you you agree you may have or you agreed for your client or somebody agreed that we yeah we might have done this but it was unfairly it was discriminatory enforcement so the lower court had to determine whether there was discriminatory enforcement or not and the lower court looking very hard very tough out it says it wasn't discriminatory now you want to come to this court and say it's discriminatory when you had the chance to talk about it in the lower court and that's what judge watford's asking you about are you see you're the one who said your defense was discriminatory and force meant you gave that to the judge he said or she said isn't right there was no discriminatory enforcement here next appeal was to the next court up to say that judge doesn't know what they devil are talking about actually you don't have a rick rid of review power authority i i i gan i guess i'm having a tough time i read the stained stuff that judge watford did and seems to me the pretty clear you do every view the review would have found best that they didn't have our position would be they did the circuit that said the court does not have the authority to make a determination on a discrimination matter  minute if the city didn't have the authority to make that determination make that dizzy make that to the court up above you're the one who brought up that it was discriminatory as to how the effect would ha because that was the whole issue of the case that they said it he that he was in violation of the city law and said no it wasn't because they had they gave another person a different set of circumstances that they never enforced at all and they only enforce against our guy and if you read my brief and all the information we have they discriminated clearly and they the city the city said councillors and so on said go out make an exception for mr green mr green has indicated he never did anything they just came to him and asked what the evidence shows so that was not an issue they needed to determine when they raised the issue that my client should be fined we said well no he shouldn't be fined because he is doing the same thing as the other person and should treat him the same as anyone else that doesn't make them give them the authority to make that determination now this is this the court the federal court did a preclude once your best authority for the idea you've now said to me two or three times that that court has no authority to make the determination they made all right the st one is is the federal court not in the federal court no ok it says or the fact that a violation proceeding has been brought against the defendant may not be used for the purpose of jurisdiction or equitable stoppel or be admitted as evidence in any civil proceeding so it would not be pre fine they don't have any civil rights determination they don't have any rights to determine or preclude whether there was a discriminatory act we argued that we shouldn't be fined the huge amount of money that they were trying to finding for only because he'd been treated differently that is not a under the statute i just cited your honour's that's not a basis to exclude or preclude his right to review in fact if you are going to in fact because this court of the united states in two thousand and thirteen dollars and a case of this be strictly construed only in those cases pipe applied only in those cases which are involved with the state claims there is no state claim here there is no called the city court yesterday court any court municipal ok but if you had been successful in taking out that defense i assume that the fine could not have been levied against your client right we're not the best true but we're not concerned about the fine what we're concerned about is they confiscated his property but i think what you're missing in this whole case for reasons i don't understand is that if you tender an issue an issue to a court and you have a full and fair opportunity to litigate that issue and it gets resolved against you even though you're bringing a totally different lawsuit involving totally different claims you can still be bound under certain circumstances by the adverse resolution of that issue right but by state law itself we are not bound to set up their  he said there was no jurisdiction to to make that determination no not not for a federal basis and then yeah ok let's all right but but if the court i mean i just disagree with you on that the court had jurisdiction to resolve the find the display did i'm telling you is that you did not cite those provisions in the district court so you forfeited whatever defense you might have had to issue preclusion seems to me you forfeited that by not really you can argue it on appeal so you're saying that's what i'm alluding to you and i want to hear what you want is your response  response to that it was nonetheless the court has had that brought to them by the defense and it is an important issue and therefore it should be applied because it does is it was it a state another does is something that preemption should apply to because it's have this that thirty to do that and the statutory provisions that were him raised by the defense point out that that is not to be used for the purpose of collateral estoppel or to be admitted in evidence in any civil proceeding and so that would include the federal court and then you look at the the narrow application of of the doctrine that was set forth in the supreme court in this friend's case and then you look at it and then we also gave a brief  supplementary brief the talks about and we have two issues here you have very reputable harm that should be looked at because here you have a city court this is all we're going to say there as they discriminate was not our issue for the city court but what they did is they said we're going to punish you for firing at federal court and federal claim and we're going to preempt you and fact we're pretty smart journeys down there and so we're going to try and find you and if you raise the defense there's a fine and our in our  in that proceeding the civil judge said hey i'm not going to hear all this i can't even decide this issue he was saying i can't decide a civil rights issue eve says that and then he will but he could decide the discriminatory enforcement issue then it goes one step further can i can i take it to another thing because i think i understand your argument here it seems to me that you claim some kind of discriminatory of fact one of the issues on the discrimination has to do with one particular party and that particular party was the one which was in front of this justice of the justice court if you will where do we mention the belfry claim oh i mentioned that in there just as another example of the it isn't in your opening brief and so therefore i don't understand  why i'm trying to figure out if it's not mentioned in your opening brief and i as far as i can say i looked into the state court findings and it wasn't discussed in the magistrate judge's findings it all focuses on richard's was never considered there we don't know what that was part of our argument in the lower court we pointed out to your talk in the district court yeah and i ok so you mentioned in passing then you came to the district court and seems like you mention that more than mentioned it but man when you came up here on appeal it didn't put it in your brief why not because a major issue seemed to be that the judge in the lower court had said that is the the federal court it said that we were present preempted and precluded from even making any argument whatsoever because it was a matter already decided that that  ruling was obviously an error because under state law we now sided even by the other side there was no preclusion based upon that and so what we have is like to like in the briefs that were you limit there is no sta e telling state issue here is a city court and there's no state issue there at all because the state laws come to the contrary and then you look at the great brief is that from harvard law school that i cited and in response to the defense that it was all preempted and then you look so that one of the basis is that they have to have a state issue that's impelling and they don't have one so shouldn't should have been preempted or shouldn't have the upper stanch and and then you've got the under on so you're representing the city folks yes your honor sara henderson on behalf of the city of sisters and nearly all of the individual named defendant mr andrew gloria is represented by my colleague mr hood for good so there's a there are countless directions i could go with this there's a lot of the big big questions about the doctrines that have been applied here but since i have very limited time i'd like to address the overarching proposition that mr glass has made that this entire appeal essentially is predicated on and that is that the decision by the underlying this case is void for one reason or another namely for lack of subject matter jurisdiction this is full of faults as is clear on the record and in the briefing it's also not relevant at this stage the appellant the the court clearly had jurisdiction over the code enforcement proceeding below the appellant is incorrect that the city of sisters did not otherwise have a municipal court or have jurisdiction to hear this case in fact i believe in appellant opening brief he discusses the fact that the justice of the peace for issues that issues county justice court was actually not sitting as a justice of the peace he was sitting by pursuant to an intergovernmental agreement as the municipal judge for the city of sister so we have to look to something that we've cited in our supplemental excerpt of record at the very beginning that the city of sisters has created a municipal court and has created the office of municipal judge they have sent simply contracted that to finding that determination i don't even know if it's a finding that the that the city did not believe or that the court did not believe there was selective enforcement as to this s t c provision is that there so there's actually a couple where we're focusing largely on on collateral estoppel here not claim preclusion because of the inherent jurisdictional limitations below there's a couple things that we'd like to rely on number one the fact that there was a specific finding by the justice court that the other party that the plaintiff in this matter had had alleged that was similarly situated to him for purposes of his class of one claim although he does not identify it as such that that party was actually not similar similarly situated there was in fact a mistake made by a city planner years before that required this other party to apply for the same type of permit in error and that was discovered that was all aired in the justice court to my knowledge so there are two primary things here number one the fact that there were no in treating in giving in making them different in as i understand it richard's produce back in two thousand was given some sort of an exemption why can't he have a claim that that even though they were not similarly situated that that in and of itself was discriminatory might well here's a better question for what actually do we have any grounds to  agree with that but the question is in my view the question is whether there's whether there's preclusion or whether the issues were exactly the same that were decided by the truck the state court and the federal court yes your honor the issues in fact were exactly the same the concern about making these two parties not similarly situated for purposes of discrimination was largely the topic of the underlying state court proceeding most of what was there was is richard is richard's produce similarly situated and if not how did we get there well y know i don't i don't see the state that's that's my problem with the preclusion argument is i don't see the state i do see the state saying they're not similarly situated i don't see the state saying that there was  improper or there was no improper basis for making them not similarly situated i believe it's difficult to find your honor but it actually is included in the factual findings from the justice court specifically there was a finding that the city was under the impression before it determined that richard's produce was in fact permanent it was under the impression that it was it would have to require removal of all of these temporary buildings of anyone operating under a temporary permit there's a sentence in those factual findings addressing that specifically and i believe the justice of the peace referred to it as the key point was that the city thought that it was going to have to enforce this against both parties before discovering that the other the other entity was in fact not similarly situated  k all right thank you very much we will hear from your coll good morning your honour's johnson hood tourney for defendant gloria i want to clarify the letter that i submitted there seems to be some confusion regarding the statute that i cited so when the city enforces an ordinance it can go one o two ways it can go civil procedure out or it can go of violation through violation proceeding a violation proceeding follows criminal procedural rules and that's where the statute that i cited comes into play the other route that it can goes through a civil proceeding and that seems to be the case that's been made at both the district court and here plaintiff's counsel submittal response letter yesterday that were he says that yes the justice court proceeding was civil and criminal so we're over here the statute that i cited doesn't apply here i'm sorry what is your position is that it's civil on the civil side of the criminal side of the civil civil proceeding and that's how this case was developed and  the parties had not have not briefed or argued anything related to a violation proceeding in this case so you're saying that statute you cited in the twenty j letter relate only on the criminal side correct so they're not relevant saying you brought them to our attention but now i want to make clear that actually they have nothing to do with our case correct your honor there's some language in the briefing in the city's briefing stating that the justice co proceeding were violation case and there are separate procedural rules for violation case and that issue hasn't been briefed at all and plaintiff's letter yesterday stated that know th these proceedings were civil proceedings not the criminal ones that doesn't change the arguments you make does it no so the arguments remain the same that insert it's only thing i was trying to make sure of because after i received his letter i got the idea you are trying to say that might be criminal he's now saying it never was criminal so we're back to civil and that's where i that's why i analyzed it i just want to make sure that's where you are yes here it is current we're still on the same arguments but now for sure in the civil side of the court correct your honor and i want to touch on this so i'm clear because now you got me confused on the civil side issue preclusion can yes yes your honor and that's  oh i'm sorry i wouldn't mind if it was your health and i was sorry so the plaintiff plaintiff had an opportunity in the justice court to raise all these at all of these issues and the issue that he raised there in the justice court was it was my business discriminated against he believed that it was and the justice court said that yes the plaintiff did believe that he was a but he wasn't actually discriminated against and he had the opportunity to raise whatever evidence that he wanted he presented five witnesses numerous documents and so if he chose not to bring in belfry tower that was a tactical decision and it shouldn't affect the proceedings here but he did bring it in the district  question we're on the civil side and this you know as for adverse judgment is rendered against him fine as opposed some appeal that can be taken to a higher court in the civil case yes yes or say yes and that's the  let's put a minute on the clock for rebuttal for you if you want to look closely at the documents we see that we did not have an opportunity to review all of those issues or argue those issues during the period of time that this was going on they brought their witnesses in who were working for the county and they made these claims that the documents they found all gee he was made permanent way back and we didn't realize that you'll notice the hanky part of the documents and so on after they testified i asked the court for more time they didn't give it to me and i said no this isn't really a big issue anyway i don't have the rights to make a determination on civil rights that's not what this is about we were using the we were arguing that he shouldn't have since he was treated differently shouldn't have loses building because he the justice courts person said no it's not an issue i can make that determination now they're saying they could make that determination and in fact we never got that opportunity to argue in that and then they were in bad faith it wasn't until after we got more documents think we did argue that says well let's make an exception for mr green we don't want this to apply to mr green so go out and do something and they did they pulled the smarts we didn't get a chance to review it was in bad faith and they talk about that and we and in fact if we had determination regarding the civil rights cases just so confused they couldn't understand it and in fact we couldn't address it in a fair if we said they didn't have the authority that say that's great we'd be right back to where we are right now which is that state statute that says it can't be precluded because in a civil case whatever he decided was improper so we have a case now that is incapable review all the city has to do is go through this little rigmarole charge somebody with a fine and my client was charged for a fine because he didn't remove his building after taste food if that you get your building off there you're out of here but mr green didn't have to and if we get into federal court and in fact we will make a showing that that was a fraud and that mr green didn't it was just the way we said it was it was never made permanent it was a thank you also we understand your argument is just argued is submitted