could constitutionally impose a three percent surcharge on only the from work plaintiff has seen us to subsidize the racetracks while exempting the other five casinos that do this is sting and the key question we all agree is how to properly euterpe from the supreme court's reasoning in that decision because the classification in the two thousand and six act which the corner held is the same as the classification in the two thousand and eight as it is based on supreme court said that the statute does not explain why they used this classification it was clearly a compromise because when they tried to pass the legislation the first time and charged online casinos they didn't pass and th is compromise was put in and the supreme court said it doesn't matter why the compromise was actually done instead the question is is there any reasonable basis for this class cation and it's the defendant's  forward with a reason that classification and here in the two thousand six hundred case the state and the interviewer said the reason is that the fork is senos who are above two hundred million because that's what the supreme court sat and the supreme court said and two hundred million was a reasonable measuring stick for the legislature to use him to decide about it you could afford it and below it you could not and again we don't know dispute the two hundred million selection the final issue that the supreme court decided is that it was logical for the general assembly to apply that measure instead based on two thousand and four retrospective rather than to do it because and i will admit your honour's that we argued that that  reasonable in the two thousand six hundred one what happens suppose things change and the supreme court said it was reasonable at that time there was no basis to think you would change and the a only for two years that had a sunset so we get to the two thousand and eight at the question is only on that third prong that the supreme court decided in two circumstances have changed dramatically for the casino industry by november two thousand and eight when this new act was passed and the new act imposes a surcharge for a period of three years absent certain events happening it's continuing to be paid now and it's likely to go for the entire three years through two thousand and eleven and the events that have changed were first of all in business then in two thousand and eight the economy started to go down in september we have a financial crisis in the economy fell off a cliff and that had a profound impact to gether with the smoking situation than the general assembly has been in two thousand and six when it appeared likely that the a g r from two thousand and four was going to continue the same line here we have though if you take the supreme court's decision as face value two hundred million is the point below which you're really not able to pay to see and that's why we say this is a different the steady argues that now maybe they really weren't talking about two hundred million maybe they really just talking about the four highest grossing casinos in the state but the problem with that analysis is you're saying that you can base the classification not on some objective measure the ability to pay which a two hundred million dollars a t r limit gives you but rather on who the four highest in the state happen to be and i submit to you that that is not a reasonable classification the fact it's inherently arbitrary  i submit your honor that based on where the two thousand eight act was passed that the failure to take into account that the change in circumstances shows us that what the general assembly could not have been doing this it all happened afterwards that we would be happy much more difficult time but the fact is that there were these dramatic changes in the business environment in the casino environment before the act was passed and the fact that the legislature could look at those monthly a g r figures and see at least one of these dizziness isn't going to make even for two business downturn they want you to see you they might they might have the same thing but i think that the point is you're gonna get when you're looking at the classifications here you can't say they could have done it another way that would have resulted is logical to use two thousand and four as the measuring one and a time when you know about this situation and whether the the waiting dollars classification system can't is that if you don't need two hundred million then you can't afford to pay it but here you've got a situation where you knew one of these casinos wasn't going to make two hundred million and yet you  back to two things for and that's not rational and what it shows you is that the reason that the basis for this classification could not have that ability to pack instead they're targeting the fork is as it's like you do the legislature sometimes does when they want to hit only cook county or or give only county benefit they see any county having more than five hundred thousand people well here it's these forecasts you knows we want you to pay and seniors were doing well they were all over two hundred million and there was no reason to believe when the two thousand and six there was put into place that they would be any difference in this relatively short time whereas by two thousand sufficient deference to the legislative determination the court has repeatedly held that the uniformity was not some street jack it does not impose strict scrutiny of some nearly use in furtherance of their rationale of dividing between see those who are better able to afford workers who are and those who are less able to absorb world war there is a very little difference between this statu the legislature should have created something that had a reset provision or a product out so that if there were any of that the xenos whose adjusted gross revenues in their current year or immediately preceding year went below two hundred million hours then necessarily they should have had the ability to opt out and because of or to be excluded and because of the lack of their exclusion the whole structure is voided its entirety you can argue apply to anybody even the at the scene of that are making the most money would be exempt from it will be converted the interest in one case into a straight jacket now they are misreading it as saying that anything below two hundred million dollars is not unreasonable the supreme court didn't suggest much less fooled that that was the case and to the extent that the planners and i want are you saying that we have a different do it disagreement about the interpretation of interest one i would agree they are misreading th cases holding that two hundred million dollars in in you will gross revenues is the be all and end all of affordability they didn't say that they said that is even reasonable bas to the extent that the emperor's casino case doesn't fully resolve this case yes it's a different statute some of the circumstances of changing it none of us who has a long way to resolve this ca because it improves the ability to absorb rationale it says that a single measuring point certainly for two years is valid here we have three and a hell of the at the two hundred million dollar number was reasonable they use the word measuring stick i'll just say cut off point for that terminations by the legislature it was not coming upon the legislature in that case to intice it may every potential future change in advance that m mate their criterion appeared to be no longer even the reasonable fit and here we have a three year sunset provision subject to these these stock traders so that the tent because you know goes on line or additional but if they can do that then why are they looking at the recent relevant data and say that for the full year two thousand and seven is the is the chart to the back of the appendix in this in the state defense brief shows that through two thousand seven the same four casinos that the supreme court refer to is the casinos considered continue to have considerably higher revenues than all the others they've all been tracking essentially in the same way for nine years there was no change was a reasonable for the legislature of that point to made the assumption that for the for the next three years that their situation would continue to be the case and i think that for the plaine that the new facts that the legislature was aware of in valley the statute it puts puts the argument on its head it renders a disservice to the general sense because they were aware of those facts they nonetheless the horseracing industry is still struggling these same four casinos are the ones that are still in the best position to be removed for this we're going to attack three more years under the statute that was a reasonable revenues of in these casinos for the next one hundred years these poor are always going to have to pay the surcharge is nobody else would i think that there would be an argument about a facial challenge to the statute but it's important to know here really what's going on with these little too late this is a facial challenge it all rises or falls on the argument that the two hundred million dollar figure was a talismanic amount below wish no constitutionally reasonable determination of the ability to absorb could be sustained by the courts and it's going to you know the the the legislature's inability to predict with perfect certainty for the next three years exactly how the revenues would play out renders the whole enterprise unreasonable i think th pleading tree the allegations is true but it's still legally insufficient in light of some of the matter here i think it does boil down to that we judge it wrong please it could be as well as just says fifteen provision yes here i think it does boil down to the suffici you know you have an arbitrary cut off you can't vote until you're eighteen years your point eight percent alcohol you know you're legally unable to drive i mean arbitrary in the sense that you know bizarre and irrational that asked the standard and here if the legislature could reasonably h bed those casinos who in two thousand and four had adjusted gross revenues over two hundred million dollars and they had some facts in front of them to show what the seven experience had been that those same senos were in the best position to be able to absorb the surcharges for the next three year period if that terminations was reasonable then the statute is facially constitutional that is essentially based upon these allegations what the circuit will if i just add one more question and that is with regard to the collateral stopped short of really moved away from that we did argue that in the lower court i was responsible for writing the brief in this court i discussed the issue with the circuit court counsel june two thousand and eight is then coming for the general assembly in november of two thousand and eight and you've seen some of the excerpts from the legislative debate in the breeders they pass it in november with  finding that said we're going to reenact the provisions of who in two thousand says end term invalid in two thousand and eight so and that happened in november of two thousand and eight so at that time they voted to reenact and extend this statute and retain this two thousand and four e g our standard for the classification they had classification that had been affirmed by the supreme court wan the determinations on the classifications of the general assembly they can't come in here and say we can draw the outline much better which is really what you're doing i mean think about this hypothetical question what if the re still have these events that are being argued about by the bows in two thousand and eight when there really demonstrates is i don't think there's any question the schedules valley is going to think there's any question that the general assembly acted rationally when they had a warm on the old supreme court are two findings in emperors that are just dead in the decision in the first one is when the supreme court says plaintiffs have a natural fit there is no real a substantial difference between downstate casinos and us the casinos which were the ones that have e g ours over two hundred million as one fine evening and the other morning they made the very end of the uniformity section of their decision they said we concluded point of said failed to meet  of demonstrating that there is no real and substantial difference between the two to casinos those are the findings that were put before the circuit court and cost the course a that is c r yes it's fine all that i want all the way to the u s supreme for change circumstances sure not as a matter of black letter law but in the world of constitutional litigation the changes that they're suggesting occurred really are not mature so i think the court can affirm the eight i had just seen the emperor's decision but that didn't give it a free pass to make a determination and to make classifications that didn't meet the conformity class that they need certainly have thought oh well that the supreme court said it was ok to use the retrospective numbers in two thousand and six but there were no changes here you couldn't use retrospective numbers because circumstances change and you knew picked two hundred million and as the last one which you cut it otherwise what you're left with is saying that it's kind of a stalled feeling that we think really you know based on the past nine years and based on this you know they're there when percentage and based on this is that you for should pay and you file you don't have to but that is not an objective measure and that's what the uniform was designed to prevent is from somebody singling out these people who maybe didn't have the political clout to be able to protect themselves in the legislature and that's what justice jackson says that's why you have that so we have to have objective classification and they picked one two hundred million the problem lies in two thousand and eight that they didn't apply in a rational fashion and that she means that what they were doing was not making a determination based on the re if it was argued in the circuit court and maybe was argued in a little bit of a backwards way but the argument was made gee if this is your argument that only our person has a claim and we sa right we wouldn't want to have a situation where they could say well the top fifty percent of the new tax increase the top fifty percent have to pay an income tax increase and the other fifty