two series of errors really that stemmed from several misconceptions on part of the district court as regards the current result in the case which the loss of three hundred twenty four units of low and very low income housing rent restricted for fifty five years and the loss of h h d c's entire investment as well the errors we point to the first is related to the trial  involves not only low income housing but involves marine areas construction pollution water facilities things like that harbors marine us so it's a generic kind of a kind of authorization to do a local review our response to that is that there may be instances in which the city there may be in effect from the location of a low income housing development particularly very low income housing however the city is constrained by state law to follow state law and in the instance of state law under sixty five five sixty five five eight nine point five of the california government code the instances in which the city may turn three of our brief opening brief i'm trying to find a specific one it's also in the cities brief as world that there is a wholly apart from preemption the california supreme court i believe has spoken in a couple of instances that the planning and zoning provisions of state law do apply any time they're considered a definite actual development and there was a development has been identified and that is really our facts here so the question would become fall in your honour's line of logic is what would you're making some kind of argument that this violates california law what happened and it went down because it didn't make britain findings for something what i'm saying is that sixty five five eight nine point five i believe would have applied in this proceeding because there was not an a the cases would be that there is no preemption for disapproval so you're saying now the regulation does not say there is no preemption for disapproval well i'm saying it's silent on that topic so the implication legally would be that that developments they must comply with those statutes here so that kind of magic in california no it's not automatic because you could still positive facts whereby you could comply with sixty five five eight nine point five and comply with and there would be no conflict also down yeah yes with that situation the well for instance there's a catchall provision under sixty five five a nine point five that says if the development of low income development violates any existing health and safety regulation which was in effect at the time the project came before and it was applied all projects they could use that as a reason the federal government the field so the extent that their purpose is exactly constant the state purpose which is to facilitate the financing and development of low income housing occupied in alice in wonderland territory what are we talking about intent is not required as part of a disparate impact crime a facially case and this circuit and i think that's pretty clear and that wasn't required in the jury instructions ok all recognize the legitimate reason defense here the jury was instructed without objection on a legitimate bona fide the government reason finance the jury's special verdict found that there was a legitimate nondiscriminatory wesen for the decision to deny financing my perry treatment i just got through saying you in fact objected to the legitimate government defense instruction with respect to disparate treatment you didn't make any objection to that obstruction so far as  you made the the objection with respect to disparate impact well but whether you did or didn't ok and you don't dispute that there is such an animal yes clearly all you do no no i'm instruction is worded where it says that it only applies if you find that the city has violated the fair housing act intentionally asked to the following protect the categories and then it goes on and says if they have these other since we've been talking about discriminatory impact issue only that there was very substantial evidence of intent as to discrimination against families with children or admissions that the city wanted to keep the development out because they're going to be so many children living there they try to justify that by mentioning school facilities once again i point out that that's a business that the city is out of unless your owners decide to put them in that business in terms of a tear for a loan but they're certainly out of business in terms of what the california supreme court said about that issue and then also the city did identifying that it has a policy of requiring all the low income housing to be in one section of town and that also has serious implications and some of those not only in terms of a factor in fact but there's also some case law that says where that impact is so dramatic constitutes evidence of intent and in one go if you have a jury  yes i've been trying to stay on the fair housing act all the way through i'm trying to explain what i believe with the interplay in terms of state statutes and what the city's range of movement was on on explaining what's legitimate reasons were i e does the city get to c the fair housing act i don't think does say that but i think the logical implication is that in the situation where you're talking about a hearing where there is no preemption for disapprovals and by implication didn't comply with the california statute so therefore there is no different than if i got that right there's no defense except those that were provided under state law yes that's right and the disapproval situation in california but m good morning it please the court my name is doug sloan representing the city of fresno in the former counsel members who were dismissed from the case our plan is that i will take fifteen minutes of our sides thirty minutes and the remaining three counsel each five minutes with respect to the issue of strict liability i think the plaintiff is arguing strict liability here they're saying that the city had no choice but to grant these bonds which were authorized by the federal government and that if they don't grant the bonds and if in any city the poor are disproportionately minorities there's automatically going to be liability that could not have been what congress intended when congress said look cities  cities we think that you know the local conditions better so we want you to make these decisions because we've had a problem with how these federal bonds are being used and at the federal level we're having a difficulty we're think they're being abused so we think you know the local conditions better so we want you to make this decision for us so they think delegated federal power to the local authorities and our position is that they did specifically preempt state law through the c e o far that the court mentioned and if that's the case then state law that says whether the city can or cannot grant the bonds is irrelevant and if you follow through the line of reasoning that plaintiffs or pursuing here it would only make sense that there must be preemption because there's a limited amount of federal money and he's bought in this mom program that can be distributed if the plaintiffs are saying well in the state of california every single bond request must be approved that doesn't work because not everybody there won't be enough money for everybody to go around so when you get to the one where the city where they're out of money and they deny the bonds then they're automatically liable for impact so looking at congressional intent it appears that congress is simply delegating its power to the city and when it does that it could not have intended that there was strict liability for doing what congress said that you're supposed to be doing is making an up or down vote on approval of the bones and i think it's important for this court to make that clear in this case because what we have are developers going around the cities and telling them you don't have a choice here that you have to grant these bonds and if you don't we are going to sue you and by the way we're not only going to sue the city we're going to sue all of the legislators are going to sue all of the people that speak out against the project which is what they did here  and that dovetails with first amendment in this case we've got not only the plaintiffs arguing strict liability for denying bonds with the federal government says that you have a choice but they have chosen to sue individuals who spoke out and this court has expressly said that you can't do that in the white man and other cases they  legislators who are doing exactly what they are supposed to be doing this is not a case where there's any evidence of retaliation as there are in several of the cases that the circuit has decided with respect to fair housing and  than first and protected activity and majesty the courts specifically said that nor pennington immunity applies not only to citizens but it applies to officials and entities as well and in that case with what the court said with respect to whether or not there must be some additional showing of intent in an impact case specifically where as in this case the u s congress has said you have to make the decision the reason is all of the prior cases the circuit has decided where back to keith versus volpi where the court said we really don't know which way to go on this but in this case we have lots of evidence of intent anyway so we don't really need to cite the circuits are in disagreement right now as to whether there should be any additional showing when there's an impact showing here as in here talking about to make out  whatever how every pre ops in even gamble yes well the court has said first of all those weren't federal mandate cases and second of all the court has said well a plaintiff can make a showing of impact without additional showing intent and it appears to me that the court has never said this is the only way to do this and this is the first time that as far as i can tell the court has taken up an impact case where there is this federal mandate and in referencing the only congress case out of south dakota that was affirmed by the eighth circuit of the court there and i think this is a persuasive decision because it discusses the ill of saying you know federal court or federal government you have said local government you have to make this decision and then allowing a fair housing impact claim simply because you do what you use the discretion that the federal government gave without some additional showing it just doesn't make sense and the court in that case said that it appears that the local authority is not the one which caused the impact it's the statute itself which was criminal action and impact but if the court were to decide that well we've got a federal mandate case where the government the federal government says you have to decide this you need some additional showing you have to plead something more than purely impact and at the summary judgment level you'd have to produce evidence of something more than just an impact because it wouldn't it would frustrate congressional intent to allow lawsuits to go against cities when you're doing exactly what the congress not only allowed them to do but required them to do and other was these decisions are dumped in the cities lapse and they have to spend millions of dollars defending these things when congress has said you've got to do it so it would frustrate congressional intent to say that you can win millions of dollars in an impact case purely because there is this almost intuitive impact upon racial minorities who are disproportionately eighth circuit didn't repeat what the district where it affirmed it but it didn't repeat all of them and regardless i think it's persuasive and i think it would be a good idea for this court to decide the same thing to make it clear that in the types of cases and it may be a relatively few number of cases where it comes up in context of a test for application but in those cases you at least need some additional showing and in this case there wasn't because the jury decided every way possible that there was no intent to discriminate and even at the summary judgment level we're saying there wasn't evidence of intent to discriminate at least admissible evidence  trial level we did prove that there were legitimate reasons the jury believe that i don't think the reason disputed facts with respect to that so we do it on the ground but i think as far as good precedent to limit the number of additional lawsuits against city on cities on this very same issue it would be a good idea for the court to make it clear and this is a good opportunity to do that that you need to show something additional when there's a decision pursuant to a federal with respect to the proof that the plaintiffs have discussed with respect to intentional discrimination it is appears clear to us that even the evidence that they used or attempted use to show intentional discrimination first was not admissible these were the anonymous comments of the audience and then there is no evidence that the defendants in the case amendment and then the same applies to mr mathieson the council member who was the defendant and then there is no way the city can be liable because not only is there immunity for the comments in the chain of  anonymous individuals mathieson in the city because even if my thesis had intent to discriminate he's only won a five council members who voted to deny the barnes so my point is that  verdict by the jury should be held regard lists of any claimed instructional error because it would be harmless fare i'm speaking to the standard of how many council members should be required in the instruction for the jury to find had intentions criminal for the players to prove their case in this case we're saying that it doesn't matter because the jury specifically found that even the target didn't have any intent and the city can only be bound by majority of the council members so therefore it's impossible that the city and be responsible for intentional discrimination and therefore the verdict should remain intact your honor your honors we believe that it's most here for the  thank you my name is nancy jenner i represent former council member christopher ninety six i would like to direct the court's attention to jury instruction number eighteen and jury instruction number eighteen sums up all of mr mathias activity relating to the wellington project all his activity was legislative in nature in titling mr m to immunity under bogan versus scott harris city if i who falls in the city and white jury instruction number eighteen states legislative functions include but are not limited to the making of law on policy regarding municipal affairs adopting rules for future governments making decisions about how to raise spend allocate public monies and government benefits engaging in debate on public issues such as expressing views about a matter before the city council for decision gathering and receiving information about such a matter seeking support for or activity that is outside of a protected area well yeah but i mean if you if you were to say that the whole case were were more analogous then the conclusion would be not entitled to legislative immunity because there there was a in effect that zoning type decision with respect to a particular use of a particular piece of property which i assume is the distinction that you would be relying on absolutism san pedro you had a long type decision being made and so which ones closer but i think the type of activity that mr mathieson gauged in doesn't come close to those cases and when you look at what he's doing in terms of circulating flyers coordinating meetings responding to his constituents those are purely legislative in nature and he didn't do anything else outside that in fact what was clear from the videotape of the test for hearing that the jury saw which was the council members trying to keep the audience calm and give everyone an equal opportunity to speak their  fundamental basics for first amendment protection because that's what they should be doing is encouraging open and public debate and that's what mr mintz he's did he should have been granted immunity he never should have been forced to sit through a month long trial in federal court he should have been dismissed on the basis of legislative immunity qualified immunity at least because how could he know a newly elected council on some instructional error that would be we would ask that you don't need to ever go there because that judge wagers two thousand and one decision granting summary judgment he got it right the first time that should have sta this court was inclined to send this back it wouldn't need to because had that judgment remain intact it would have been over then and that's what should have happened good morning my name is howard saga sir i was intrusted with the defense of eleven individuals who we likely refer to as the citizen defendants who were sued simply because they spoke out at a public meeting a organized their opposition to a housing project during world war two norman rockwell painted the four freedoms and one of them it's a picture it's imbedded in my mind is the picture of the person in the town hall speaking out and that was the freedom of speech freedom of expression the greatest generation fought that war to reserve that freedom among many others and i think the battleground shifted little warfare was raged upon these system within its for doing nothing more than what norman rockwell depicted in that painting their conduct was purely political speech  form protected under the first amendment and for that they were subjected to a lawsuit where they were nine million dollars for traveling twenty seven million dollars these were first time home buyers in fresno a first time home buyer is modest homes not like the bay area here working class people they do not have the resources to engage in that type a legal warfare with developers and reasons i couldn't quite understand doc did saying that the first amendment did not trump the civil rights of her housing laws when it's the reverse those laws cannot take away that first amendment right ultimately when this court reaffirmed existing laws and i have a lot respect for judge wayne jury he's a great judge we just disagreed on this case i did not see this new law i did not see man of steel or white versus lee's being going after people for speaking out against a housing project that the law was well established in one nine hundred ninety four that that was protected conduct that those citizens were engaged in if you're ethan you were right where the amount of attorneys fees that the court's discretion i think here we were entitled to attorney's fees unfortunately the court applied the long legal standard one that we fought to get through summary judgment one that unfortunately carried over into the attorney's fees because under white versus lee these rights were established at least in ninety four this lawsuit was filed in ninety seven and i think that the case we cited under the california statute ten twenty one point the other cases there clearly show that we are entitle to the a few days and i think the issue here is how much and so what we're requesting is that your man back to the court with instruction to award fees in the court applies this discretion to in place of development there was never any case against mr compton after four years of litigation the totality of the evidence against him was that his name appeared on a set of was a member of a temporary action committee which of course mr compton denied so while there may have been an issue of fact as to whether mr compton had membership in a committee  that was in fact immaterial because under the claiborne hardware and barnes cases we know that the mere fact of association it is not enough in this case it was never any evidence that the alleged committees possessed any on lawful goals and clearly there was no evidence that travis compton had any specific intent to do further an unlawful goal know the it's our contention also that the conspiracy claims are also legally frivolous in that as pointed out by judge reinhardt and in white versus lee the law was clearly established as early as one nine hundred ninety three four years before the plainest filed their lawsuit in this matter any speech by mr compton even had it advocated discrimination in housing which compton vindicated first amendment rights that under the city in fresno versus press communications case that means as a matter of law this litigation affects the public interest and confers the benefit on the general public and as in studio fresno travis compton he had little choice but to defend himself and in doing so he defended the rights of others whose protected activities are subject to attack by any developer who would seek to squelch legitimate community opposition to their projects so if travis compton is unable to recover attorney's fees and costs doing ok they would have you believe that they were choosing as occurred in san pedro tell a case i know something about because i litigated that case they were facts if you go tell us that there were multiple products multiple projects excuse me and they were the city was given the job of allocating federal money the reason we lost on immunity is because the city was actually choosing among those projects which ones might go for we made a subspecies of argument did not prevail on that issue but that's what happened there here they were voting up and down only on wellington so just like the maui wedding chapel case and lifespan peter hotel that was also the reason that none of the council members really should have gotten immunity in our judgment they really didn't qualify for it because there was  history of decision up or down we then were going to go the next day to the california debt allocation committee in the state allocates its debt the district judge actually seemed to subscribe to the idea that the city could sort of allocate the state's debt by deciding who went in the pool but that's not really accurate because no matter who is in the pool if it's been all for his own project or no fresno projects the state was the one who was all kind of going to ultimately make a decision as to whether the financing went forward and on whether with the state's debt was up on but what is actually going on at the circuit levels they apply the ordinary impact pretext analysis and only congress facts were more like sand phaedrus to wit they were suing the state allocation committee for not allocating them credits on like again our situation where the city was going no money into it nobody in the history of the city ever been denied a check for the city wasn't allocating one single far thing of its money zero on that in terms of try to claim rights under the city was not lobbying any other part of government here so massey is not a political and white was a case involving homeowners who were investigated by hyatt for merely speaking out what they have not revealed to be an argument i can fish should have had to this that we claimed that they breached the stoppel certificates and induced others to do that in our clients relied on that before they put up a lot of money to buy this development  activity here that we were engaged in which is developing low income housing my clients that everything right and they end up with nothing because the city wants to rely on a lot of reasons they're illegal under federal law illegal under state law and even if you take away the entire discussion that we had in my opening remarks about the sixty five hundred nine point five you still have the pretext analysis which is exactly what only congress goes through that's the circuit so that's still there the problem here  to oppose this development and we did also allow individual people that you have anything that what they personally done in some instances we did not have the names of the people who made to specific remarks in so i think it's closer to nine you know but and how much as you heard there what about housing put into the project what was the cost at that point i'm working from memory the best my best recollections would have been something around