where you are in your honor good morning can you hear me i can hear you can hear me yes i can and i believe everyone else is nodding you may proceed thank you your honor your honor good morning my name is amy had s this generated complaints from citizens and elected officials over time to such an extent that the city tried to end his employment in two thousand and sixteen after this was unsuccessful johnson was allowed to return to his job and continue there there are some questions here so thank you in terms of property interest ok to the extent we're talking about the inability to occupy the building in what way and that  hair there were there were ongoing meanings there were ongoing communications on this point and eventually the city accepted the more limited set of repairs that mr you'll bergs inspector proposed so in what sense were the defendants at full in terms of resoundingly th necessary repairs and then permitting occupancy i would submit that they were are responsible once they acted and city once the application for the occupancy permit was submitted that at that point it was the city at least under its existing policy that is dictated by the process and that occurred in september of two thousand and seventeen and at that point it was the city's responsibility obviously there were some things that  he wasn't given any sort of explanation about why there was the delay in that time if it was due to him or if it was due to other circumstances at the city order wasn't a fact otherwise he would have been subjected to fines and possible imprisonment in addition he did not feel like he did not collect any rounds from her except for i substantial and if he had been able to or if she had been able to resume her occupancy at an earlier time at a reasonable time in and you know after having been  hurt and allowed to address any concerns by the city he would not have suffered those damages in addition to which he did suffer he did suffer damages as well because of the expense that he had to go through in order to  protection claim at the summary judgment stage and there was a mention of an equal protection by omission in the complaint but no due process claim judge stat miller struggled to  identify the claims that were actually being raised in this case either in the complaint or in the summary judgment briefing and very generously constructed due process arguments here in his  decision entering summary judgment for the defendants but i'm not sure we need to be that generous you didn't raise a due process claim in the district court you didn't brief due process claim in a district court out appeal you're not challenging the ruling against you on the equal protection claim so what do we have left well i do believe a due process claim was raised on as as pointed out in the brief there is no just pleading as well as there is a lot an allowance in the rules for development of claims through the discovery process the the court did consider and did consider the arguments that any fact on their little bit because the generosity of your opponent and the generosity of the district court does not so you know this is not a complicated question about identifying what the particular property interest is and what procedures were due or whether there was  the failure to develop an argument and the defense can make an argument that the claim to the extent that one can be teased out the complaints or the briefings has been waived because it with sub standard i would just i would just submit that if the and defendants are going to argue waiver than they should have done so and at the district court level they should not brief briefing fully at the district court level and wait until it's up on appeal before raising the idea of a waiver so that it could be addressed before the district clear that the briefing was inadequate and bend over backward to construct an argument for the plaintiffs lawsuit here so you know there hasn't been a waiver of waiver if that's you believe based on the briefing that the plaintiffs at palance have raised a genuine issue of material fact regarding substantive due process and procedural due process based on the evidence that was pretty present to the district that the facts of the case justify not not considering an argument to be waived oh you're asking us to rescue the case for the poor thing in the district court i'm asking you to consider are the issues that were considered by the district court and the facts and the evidence that her presented at the district court level in which i believe support the procedural and substantive due process violations at least that there is a genuine issue of material fact and that was that that is raised by the evidence that is has been holdings should be allowed to proceed with the case in the district court erred when it granted  mr you up or to engage an inspector or a contractor to determine what repairs were necessary and of course that's what get to you and he managed to convince the city to accept his inspectors much more modest assessment of the sped up the scope of repairs necessary  that the city deemed adequate so what i've been trying to figure out is in what sense this charity over was deprived of the information that he needed to respond to the notice well st of all he was he was doing so under the threat of the raising of the building and there was no sort of protection that was given  raised order doesn't necessarily mean that that mr you know berg wasn't damaged in this case and that his rights were violated they i don't i can't get to what sort of hans's he was did not write the notice gave him an initial period of ninety days to take action and practiced the notice commenced a series the city's concerns so what process was missing it took a while but these things do well i but the fact that the city did not take time before issuing a raise or bar and threatening mr yule burke with the loss of the building threatening him with fines for renting or occupying the building and also delaying this process was not justified and frankly was rash under the circumstances that as they came to life that there was no bear to be threatened with fines and imprisonment for renting out the building or or for the potential loss of his building the law to run and what instigated him having to  going to be ready me please the court my name is jasmine bader i represent the defendant pallies the city of glendale and mr collins johnson and the appellate respectfully ask this court to affirm the district court's decision granting them yes your honor and i guess the issue that we had when trying to interpret the case mr hilberg plight an equal protection claim during his deposition he was asked you know the basis for that claim and he indicated that he believed that his property was treated in a manner different to similarly situated property owners after the close of discovery it was determined that there was actually no comparable property owners  whether or not i guess we could have filed a motion for a more definite statement but we believe through our discovery that the claim that mr yoo oberg was making was that is building was unfairly issue building code violation when other such buildings were not well you know it does raise and i that where as mr johnson estimated it would take one hundred and thirty thousand  raise the building was reckless under those circumstances and i would submit that the estimate so just for clarification of the record there was actually two inspections that occurred one was ordered by mr gardiner in january of two thousand and nineteen and that was by al walters and that inspection report actually highlighted many of the deficiencies that mr johnson found dwelling inspector and his residential home inspector came to the conclusion that the building would cost somewhere around twenty five thousand dollars to bring it up to code i mean i think it's our opinion that that estimate was disingenuous if sixteen thousand did it i mean you know that's nine thousand less and so i will submit that bat was just an estimate joining the deposition i asked good i said that sounds like a great estimate did you have that work completed and he indicated that it was sure he says building so i'm not sure if that estimate was ever accepted in that work was ever done i am aware that the next year over a year later in january the roof still had problems there were still structural issues and mrs gardner was still hane sums to get the building into compliance so whether or not that estimated repairs or that company work course was ever used it was unclear to me and it was unclear to mr hilberg well then have how did you how did i guess on the city's part and so i will so what basically what happens when you you know this part of this building sits in the middle of town there's not intel somebody applies for you know  inspect random buildings all the time the inspections on this building started because mr eagleburger had purchased the building and the building inspector drove past and saw somebody using it as a woodworking shop with the garage open so when he stopped and asked you know what's going on that prompted these inspections inspections that he had and that the north shore fire department had turned up all of these concerns however the city wanted to work with mr gardener and they did so and they worked with her over the next couple of months through the next year to get this building up to code and her commercial occupancy application that she submitted indicates that you know once you submit this it's your responsibility to ask the city to come back and re inspect and to ask the fire department to come back in reinspect so that's kind of where the city was at the the there were some repairs made however those repairs were all made without permits if you just put it addition on your house and you don't notify the city and it's done without a permit the city has no knowledge of well maybe they did fix the roof well it was done without a permit so the city had no knowledge of any type of i guess improvements that were being made if that makes sense  even need to wallow around in the fact in this case it's the extent that there is procedural due process claim lurking somewhere under the surface here isn't the material point that the raise order there's an automatic t r o so you you hold any damages that may be occurring and as a consequence of the issuance of the babri order and you challenge it that way and so the state provides more than adequate ample room host deprivation remedies and he didn't invoke themselves and of case then i would and i would agree with you i think that is a pretty big threshold dispositive issue of this of this case and i think that's been established and to that point i have no further nothing further to add and i'm more than willing to you know answer additional questions if if need be well and to the extent we're going to wallow around in strict building inspector in the city of glendale we've got i mean it's a pool of fish oils the city manager or the common council that want to work with homeowners to bring properties up to code so there's this sort of turf warfare going on in the city mr york or buys a dilapidated property and puts the onus on his tenant to fix it up and then gets angry when he gets caught in this power struggle between the very strict building inspector and the political officials in the city of glendale and instead of using his state remedy they can check raise in order he makes a federal case out of it where anybody with that understanding of the facts here i know i think you have summarized the case exactly and you know it's we concede that mr johnson was overzealous in the building code enforcement but that's not illegal and it's not automatic statutory scheme provides for an automatic t r o once judicial review was filed which was correct which would arrest any damages so to the extent that he suffered damages during the pendency of his raise order before it was rescinded he had an opportunity and a remedy under state law to halt those economic damages by going to court and getting the t r o well i would also point out that the city has disputed that the resort it was even a raised order and that would raise questions about whether that particular remedy would have than available that matter the question is if the remedies existed and they are legally sufficient that's the end of procedural due process claim i would also point out that counsel characterized mr jobs and actions as over property owners property rights is unconstitutional whether or not the building codes are valid or not there are there arose in the record an indication that he hadn't interfered with the sale of the mayor's home  another private citizen because of a building code violation which i've never heard of before the matter well i've never heard of a building inspector who decides to insert himself a property that's it's rather unique and i think kind of predicting of where things were going with this particular gentleman and for this reason we do believe that the district court's decision granting summary judgment and dismissing mr gilbert claims for violations of procedural and substantive due process should be reversed the district's court's decision dismissing the city from liability for his action should also be reverse