defendants concede is the applicable standard the mr kaplan's constitutional claims turn on a single factual dispute did he engage in third party contact or not mr jadwin has consistently disputed that allegation and he has submitted to fish an evidence into the district court record to support six different arguments as our brief lays out in support of his position more than that he's created a credible competing narrative to that of the prison and this is thus a classic question of tribal fact did third party contact occur or not and the district court fundamentally erred in granting summary judgment the key point of contention i believe with us and goes inside at this stage in the briefing is what was the rationale contemporaneously offered for the the no contact orders mr chapman prejudiced by defendant failure to provide him with notice of evidence against him prior to the meeting so i understand your honour's asking about the procedural due process argument that so in a practical sense i think it's what we would be asking for is relief in this case if the judge if the court only ordered found a violation of procedural due process would be he would be entitled to a hearing and he would be allowed to actually present his case and rebut it it's probably true as is always the case with procedural due process cases that the p could do what they wanted anyway procedural due process just get to procedure to make clear you have two claims here want to proceed your signal due process claim in the substantive due process read it and just can't question what was directed at the procedural due process and that that entails the the claim or his little dispute over the telephone who listened to the telephone call or the dealing deals with his wife or his former wife it deals with the appropriate grievance procedure at the prison related to the restriction of his liberty interest so our claim is that the print the supreme court prisoner due process have outlined that the procedural rights to which you are entitled are two portions of those are crucial you are entitled to notice of the factual basis for the restriction and two you are entitled to some sort of an evidentiary hearing in which you can rebut that claim what happened here was they just said this is quoting from their summary judgment motion you can hear is we're going to have a hearing that's the notice and then at that hearing he was not permitted to defend himself he was there he was there we're not disputing that he wasn't there it just wasn't an opportunity for rebuttal and so we'll consider their record say though about what was he told was going to happen there but as the records say so the record says that he was told that there was going to be an f r m t hearing say anything more what is the record say does it say what was going to be discussed or it's actually unclear i mean the notice is the record has these kiosk notices that his counsel are sent to him and those contact his wife that i mean both his wife and his son the son both of those things were imposed so let me be clear what we want what he would should have been entitled to is if they're going the basis for their imposition of that order was that they thought he engaged in third party contact and so for him is that wife through yes exactly that he used his wife to contact his victim daughters our point is that he needed to have notice of the factual basis for that allegation if they think he committed third party contact when how who who observed it and that detail was provided at the hearing the hearing notes say that you used patricia to contact the victim daughters on january twenty third tw easier to to to so they say that that that's when they told him what was going on but that's not what notice is notice you need to have notice prior to the hearing in order to head if they had told him or happy for with that have been enough  i'm sorry yes if they had told him that is what argument is that's what notice is notice for choir's notice of the factual basis for the imposition of a charge and so he should have been told the details of the no contact  because that's that's how he can prepare a defense if he's told no contact occurred on january twenty third he can then go out and do what he tried to do here which was get evidence of well who can listen to my phone calls and it actually allows him an opportunity to have a you you actually engage in third party contact is the first thing he does is he writes a letter a note to mr hubbard and says where is this coming from you have yet to show me proof give me the date give me the time are nine title to cross examine the so yes they have these concerns but the basis for their order was that he did commit no contact and when they do confront him with that he says where's your evidence and they have yet and i know we've talked a lot about the procedural due process argument but i would like to return to our our point there is very simple the basis for the president's order that was contemporaneously articulated was that he committed the he actually did contact his victims through his ex wife that is the basis that in the record if you are t to two and i want to read it for you because it is crucial this is what the notes say he was told that these conditions were imposed because the m d t had reason to believe that he violated the court imposed no contact orders via third party contact at the e r to twenty two that is the justification that in the record the red brief has a lot of new justification and those are post hoc rationalization so it's aren't available under this court's precedent and walker versus sumner and once it's just that which is whether or not have to determine whether or not he actually did use his ex wife to contact his victim daughters between november of two thousand and eleven and january of two thousand and twelve that is the allegation that the prison relies on to impose these no contact orders and i thought the person also relied on the fact at least with respect to his his wife and the daughters the prison just relied on the district court order the contact with the victims ok so that we're agreeing we concede that that that his judgment says he cannot have contact with the victim so why can't the prison is part of their penal business tending to this fellow just we're going to carry that out the victim but that but the bail ledge that he did so through third party contact so that's why there was i mean there just implementing the order but i fact he did the basis for their order i mean the prison the court's judgment and sentence prohibits contact with his victim's yeah and section four point five there were also civil no contact orders that were lifted which would suggest that the courts did not think that he should be disallowed from contact with patricia or his son courts had an opportunity to pass on that question they initially did it and those were lifted ok here the prison has got a ms they could not under the  mr chapman so as we get through new arrives at the prison and they do their processing and they look at the judgment they look at the victim what the judge what the criminal judge ordered they say no contact and seems to make sense that they would say all right you're not to contact your wife you're not to contact these victims there you know they're it's a family unit i appreciate that your honor i don't think that's what they did so i think what your honor is suggesting is not the rationale but there to kill it if they didn't say what they were trying to imply i thought they were trying to implement at least with respect to the daughters they were trying to implement and carry out what the criminal judge had ordered that that's right but they extended it past the daughters and applied it to patricia who at the time he had reconciled with and was attempting to remarry and his biological son and wasn't there something that he wasn't just have contact with minor children period we're not objecting to that aspect of it were the son even getting to that application of it that he wants to be able to have contact with his son and patricia so i take your point your honor is that a prison could view that when you have pr whenever there's a court order preventing contact with daughters that a logical extension of that is that it should extend to the whole family unit that isn't the rationale that the prison used here that's not what the prison said the prison didn't say that they said you used patricia to that this is not free i quoted to you from the contemporaneous notes of the orders that were imposed they don't say we think you will i mean the red brief has convenient paraphrasing where they say that that's what the citations to the record are that the prison had concerns about him doing this but that's not what the actual contemporaneous evidence in the record suggests and as long as he has created a genuine  honor i think that it is true that if he wins the procedural due process claim and not the substantive due process a trial it would get him process for an order that already in effect and so maybe there's not that much to it but it's very important going forward because if what the person decides to do say they lose this no contact order and a trial a judge orders it vacated the prison may decide to do this again we can see that that's possible they can try again they can actually articulate these just vacations in a new order but then it's very important that he have procedural due process rights in the subsequent proceedings so we still think it's important even if not as practically relevant for this case in this case we think the substantive due process claims are stronger ok i think you will hear from the victims the district court correctly granted summary judgment here because mr chapman failed to show that defendant's actions did not serve those two legitimate interests i want to start first with the procedural due process  issue that was discussed in the opening well it the record isn't as clear as it could be on this because i can't tell exactly from the record whether mr chapman was ever has he ever been informed of what specifically do we have the i don't know that way of saying it meeting if he was not specifically informed of the evidence against him your honor there's no requirement that he be informed of the precise evidence prior to the hearing there's never been a requirement of that in the prison context but in this case he was given notice that they're going to be impose additional conditions through two messages sent by the council or those are out at the yard to sixteen and to seventeen any had a conversation with the counsellor going to be imposed so that if we don't tell him the basis for that is not in the record your honor how i say when we reason why we're doing this is because we overheard a conversation that you had with your wife or in that conversation us to her to relay messages to your daughters there is nothing in the record to that effect your honor however what is in the record is that the prison has had these concerns basically the entire time and i appreciate that and i understand it because i understand kind of how the process works but was he told was he alerted to the basis for that for the reason there is simply nothing in the record and part of that is because mr chapman was not raising it as forcefully in the district court as he was as he is here so that could not have been corrected how well i mean there was let me ask you in these administrative proceedings in the prison system i thought the prisoners had a chance to sort of respond to whatever action the prison action prior to the hearing he did attend the hearing and it was discussed that their basis was these know how she's supposed to go and do whatever kind of investigation he could do or make contact or do or prepare i mean it's just it doesn't seem like it has the flavor of of of a really full and fair hearing their first first of all you are think the appeals process where you can ask to have that reviewed by a third party and in fact it was automatically reviewed by a third party in this case who was not involved the initial decision that is part of the procedural protections that make this sufficient process even in the discipline i did that when i went up to the next level did that person say this is the basis for you know this is we have this phone call we have this we have this tape recording a court of this phone call and you can listen to it and now explain why we're doing what we're doing there's nothing the record to that effect your honor however there is that they affirm the conditions that mr chapman raised his concerns and his arguments so multiple prison  they still have a chance to have i understood i thought that's what that's what the case law is and they have to have an opportunity to do but or to respond and to be clear has to be meaningful to be clear the defense position is that it was meaningful because he was given an opportunity to participate in that discussion and it was explained the basis of the conditions and he was given an opportunity present his case the fact that the prison officials disagreed and that they believe they had a basis to impose these conditions does not mean that that's a violation of procedure of due process  to well first of all your honor under state law there is a restriction on what where those recordings can be distributed how they can be distributed they cannot be just filed in court there needs to be a court order to file it and i guess arguably even today give it to someone that's not the department of corrections so he told that it was based on this conversation when did that come out well first of all i want to clarify the part of the defense position is that there is based way more on one single phone call however the phone call was discussed during the february meeting were where that's indicated in the record are two twenty one and two twenty two but again this is about the entire process by which the department had their concerns with mr cha contact that process starts with his judgment sentence which imposes significant conditions on mr chapman which limit his ability to contact all minors and additionally to the judgment only really relates to the daughters no your honor i disagree the judgment indicated to the judgment say you not have any contact with any minors yes as a commute condition of community custody mr chapman did try to contest that issue in state court on our criminal implemented during the prison term his initial judgment that resulted from his sexual assault of this two biological daughters said no contact with those two girls but also no contact with minors  correct and as the way that it was phrased that was interpreted to mean the biological son who was also a minor at the time correct yes you're on because there's three biological children plus i believe a stepdaughter that was a little older that was the ex wife's child correct your honor and so the two biological children were was it was there any factor in terms of because obviously the ex wife had initially caught the defendant inflict granted tillich with his biological daughter i'm understanding that there was a gun came out and he was ordered out of the house but then the ex wife allowed him back to attend a dinner party and then he was out i mean a birthday party i guess so there were some concerns that the  the ex wife might not be the best protector of these children even though she ultimately did contact the police yes you're she didn't contact them immediately when she caught him right yes it was a couple days later and that was part of the concern that was part of the concern in the initial prohibition of visitation that's the entire sequence of events i was referring to when mr chapman came into the apartments custody the issue was reviewed and eventually there was an imposition on just visitation with his ex wife and that that imposition of restrictions on the visitation which is that he are to thirteen talks about the concerns about mr chapman's ability to protect visitation so they took a kind of intermediate step with where mr chapman continued to have contact with his ex wife through the mail and jape and e mails and the phone calls and then when it proceeded and they had additional concerns in february that's when they imposed the across the board contact and also in february i would like to point out that there in that time  chairman actually did have a civil no contact against mr chapman but then at one point she was going to remarry him too right yes your honor but then that's no longer the case yes sure so is that of concern to the prison that if she would remarry him after committing these acts on their biological children is that is that factored in to whether she would be a responsible person in protecting the children it factors into the prisons this is about the is terrified of him at this point rebuttal four points your honor the first is that there is authority for the proposition that the notice has to be factual that isn't will first of mcdonald's from court case which says the function of notice is to give the charged party a chance to marshal the facts in his defense that's on page forty one of our opening brief another point defendant said is that they said listened to these phone calls that if that is in fact true he has created a genuine question of material fact as to help or hurt credibility at e r for twenty eight is a communication between mr chapman and the head of the century i t at the prison where he says he memorializes a conversation re says hope it would not have had access to the phone calls during that period of time so this is a credibility dispute his plain old position is that mr helper is lying and that is a case in which it's a genuine question of material fact it's important one more point your honor should pay as you were surprised to hear that minor children were covered by the judgment and sentence the judgement sentence has community custody conditions i agree with the council but he's in custody so why would the judgment and sentence have to say you know while he's in custody he can't have contact with minors that's sort of the assumption right ok so when he needs out in the community these are what we want to retain is only dealing with community release i don't understand logic more precise we read this language as being about physical presence with a minor child so what that would imply is perhaps that would imply a visitation restriction in prison that would be the equivalent judge fisher is that just like when he's outside there is a limitation on his presence with minor children the analog would be that he cannot have the same physical presence with a minor you are pro bono and we very much appreciate that so thank you thank you we need to we need to thank you thank and just because the subject came up on the news today our questions from the bench don't read them as putting anybody down it's the whole interaction on the oral argument is for us to get a final handle on the case we read your briefs we know what's going on and we have these questions and sometimes we get a little emotional when we ask questions but we fully appreciate what you lawyers are doing and because the commentary today in the press of was well there was some tough questioning for one side or the other that's not going to fly the result thank you all thank you counsel we appreciate your arguments and the matters to me didn't we all of us appreciate the fact that lawyers are willing to service on a pro bono it's very helpful