was never pursued is that correct it is correct that there wasn't pursued the fact that it was not pursued is not a sufficient basis to dismiss this lawsuit for two reasons first of all  the threshold passed under plain and under utah construction is one that applies in any event and it applies under eliot and miller and  and plain as we saw it in our opening brief that requirement is the threshold requirement that is that the utah construction hast must be applied regardless of whether or not the river mandate proceeding over the defendants have the burden of proof on that issue and finally the critical factor is that the district court indicated in its own decision that it did not consider in frankly it rejected  was that that test was not apply it was tied stepped because the trial court was persuaded that the failure to pursue that remedy in and of itself clan's these irregularities now that is not the law the law says that still utah construction analysis must be applied and the court must determine whether or not this proceeding met that threshold test and so because the court sidestepped that there was an error that arose the  make sense obviously there is a stablish law on this principle where the irregularities are evident to the aggrieved party and the aggrieved party has the ability to raise those irregularities by means of the writ proceeding in this situation there were numerous or regularities that were not evident to my client at the time of the appeal proceeding nor would they be evidence by means of the normal discovery or even the exceptional discovery that's permitted in a written proceeding as is well established the the review that is typically that would come into play to allow the aggrieved party to raise fairness issues but in this instance there was nothing in the administrative record that put my client on notice or otherwise announced these is referring to is where i say last version is have nothing to do with pre hearing procedural errors like those at issue here that's that's all that i say there for the court as it said in its order of a couple days ago that we've taken the position that on an administrative mandamus we are a party is not permitted to get into free pretty proceeding procedural errors are simply not the case and we're not taking that position i'm simply contesting los aversion us agree there are cases allow you to do that almost certainly and but that's an important distinction there are situations where preferred seating issues come to light in the proceeding itself and one one of those instances in this case was that at the proceeding it came to be known that a packet of information was submitted by mr lamb to the members argue that that would be something that my client had noticed of and could have raised that as a fairness issue but that's one of eight or nine very significant irregularities that simply were not brought to the attention of my client nor would he have been recently on notice of these issues so just to clarify for you proceeding things certainly can be raised if they are within the knowledge and awareness of the the appellant or the claimant on a regular basis unfair and that's the other very important part of what of our presentation has in the first instance the threshold test of utah construction and flame must be applied and it was not applied here but then you go on to the next  e go on to the next level layer and you have to analyze in the fact that are presented by this case is it fair to have the principle of law that the availability of the administrative  of a demolition of a series of building components that were stored on property in jamestown the chief building official gregory lam determined that the buildings were dangerous and they needed to be demolished and on the issue of claim preclusion and that went to court on may fifteenth and sixteenth two thousand and one and the trial judge magistrate judge back ruled in favor of the county in issue t separate orders one dated january twenty ninth two thousand and two after the trial and then mr heller made a motion to alter the judgment and there was a second order isn't going through april twenty sixth two thousand and two among other among other findings the court found one that the ministry of hearing was conducted with sufficient safeguards to equate it with a state court judgment well that's the issue here you've heard councils argument invokes utah mr they argue that mr lamb the chief building official served as both a prosecutor and an adversary however on the hunger savic he hung the savage case that court held that it's not impermissible for a independent board heller argues that because lamb personally selected members of the board of the field the street an appearance of bias but this isn't an incorrect assumption based upon the following and undisputed facts only two of the four board members recommended by lam were actually appointed by the board of supervisors each of the board members testified that he was not paid by the county and he received no compensation no compensation or monetary benefits whatsoever these were volunteer board members the support member testified he had no prior business or from financial relationship with either mr lamb or happier and consistent with the rule of necessity under hung the savage and the uniform code for abatement of a dangerous buildings each board member was qualified by experience and training in matters pertaining to building and construction mr heller argued that there was a violation of rule fifteen for the rules of appeals and conduct of public hearings because two of the four board member said they went out and viewed the property before they issued the order of demolition and he said they failed to disclose this at the hearing that that was a grievous procedural error but the facts were that they just went to the property they looked at the property from a distance they didn't really inspect it and there were photographs introduced at the hearing that showed the building it was a it was a building that these were people drove by all the time was it was common knowledge in the community there's no prejudice by the board members not having disclosed that they they had already looked at this building and they were then there were photographs that show that anyway i think the more difficult question is whether as a board members appointed had jurisdiction i thought that was a pretty good argument that they were really grounded board members under the regulations well that point yeah mr heller has raised he's raised some issues he's made some arguments that they weren't duly impaneled and and we have evidence the undisputed in the record that establishes that these procedural rules were complied with and mr handler had didn't present evidence to the contrary and an addition all these members were approved by the board of supervisors pursuant to the uniform code so i think the question is not your evidence but whether he has a right to raise that issue and whether he had the opportunity to do so and secure is own evidence well he certainly had the opportunity to do so had a challenge the proceeding by ministry to read he was on notice of the hearing as he pointed out that there were there was a packet of information he was aware of other matters and ha say he could have asked for discovery that's correct and so what you're saying if i understand your argument at that point he had the option of of leaving the federal court going back and getting discovery in the state proceeding but he chose not to do from that is page ten thirty four footnote three it starts with miller cites perhaps the ancestor for the proposition that he's not required to exhaust administrative remedies prior to filing a suit under nineteen eighty three report of second one of three that court states in part mandamus proceedings allow courts to flesh out issues of the factual components of the dispute including issues of procedural fairness disapprove of vesting tentative map for days before trial for reasons unknown the developer just missed a man in a faction the defendants immediately a minute their answers and move to dismiss the remaining claims the trial court agreed to do so on a adverse judicial ruling by remedying the wrong or mitigating the damage claim and that goes to the public policy rationale for judicial exhaustion remedies they cite patrick for the proposition that persons affected by adverse administrative actions were permitted to refrain from challenging such actions and some mitigation of damages by the government came became impossible through the passage of time or events and then present monetary claims the financial burden on much of the members of the fuel's board is undisputed and that that was regular in conformity with the law on the contrary mr lamb himself supplied us with a notice a vacancy that was posted less than the statutory period time prior to the hearing was only eight days before the hearing and it was so and the time for the vacancy to be filled grand fifteen days later which was something like eight or nine days after the hearing that's mr lamb's own testimony he made a patsy in ca i meant that he thought there was some other notice that one out but he never produced a notice and that is less persuasive than his own testimony that the notice that went out was not consistent with the this in conformity with the sufficient procedural safeguards that would be equated in a state court and a speed court in this in this state you cannot have a proceeding that goes in front of a judicial officer that is not properly you have the opportunity to raise that issue before superior court you started the mandamus proceeding but then you didn't pursue it the prior counsel that started the proceeding was not aware of any finding out his facts could he have raised that issue in the deceit in the state proceeding which was dismissed by the time that information was known the action was stale it was past the three years i don't think you understand the question obviously information it can run back on another that isn't that isn't the issue the issue is whether if you had been a lawyer at the very beginning and in the state proceeding would you have gone over and check the records and find out when the notice was actually done and found the facts with you i would not have there was nothing that put me on notice one would not do that you don't go and check to see if the judicial officer that you had of court proceeding in front of was properly sworn in you just don't do that and so yes the response is no i would not have done that nor wo any most reasonable practitioners now once you get that information is developed through a proceeding where you have a full panoply of discovery rights then you're in a different position and that's what happened after nine hundred eighty three was filed but i didn't have those discovery rights in procedure we did not because you are limited to the administrative records you cannot ask and that's critical it's in our brief ok the laws clearly you cannot discover past the administrative record except in limited situations and a limited situations are where the evidence is in the record suggests that there may be other evidence that would permit you to take issue with the fairness of the proceeding that was not the case here we did not have administrative records that put my client or his