reason you just explained when we look at this is these findings of fact about this city manager and credibility and so if there was contrary evidence we need to know it and my understanding from adopting this policy or even if your argument really that they didn't follow their own policy the argument is there was no real poll all comers up until the time that it became a political issue that a politically m waived so can you address the waiver how you did away that you never presented this is squarely below and i don't think you you know there's some things that you didn't even raised on your brief here to the court so issue here and you had ample opportunity to squarely raise these and it appears to me that you didn't but i want to give you an opportunity to argue why these aren't waived our old closing argument is a pretense our whole closing and from what i can tell on hostility towards towards your the plane of religion and then looks like the district court determined that the arguments that you raised for the st pro the st time after trial there's there was no written policy right so we're calling a policy i think you might mean historical practice is that what you mean it in practice and then when your group came along i think your contention is that then the city came up with district court in this case took went to lengths to say here's the preacher order here's what you're going to be limited to if you're what you're saying in response to judgment is that the city reared off course and they raised you know there was mercury moving target  because it is critical to the court's weighting of the arguments presented today it is not just that the appellant waived the issues that populate their argument today and populate the majority of the arguments in their opening brief by failing to include those issues in the joint pretrial statement but the district court made a specific finding of waiver in the defendant to establish liability pursuant to menow the plaintiff was required to prove that the decision maker for the city was motivated by a discriminatory intent made by the city manager and the undisputed evidence in this case from the city manager from the mayor and from the only council person call by the plaintiffs to justify councilwoman class all are clear i believe in hialeah the court noted the appropriateness at looking at the contemporaneous statements made by the decision maker years to determine the intent of the decision makers so we have a legal distinction between highly in this case an important factual decision the mayor and the council individually and as a body made no and they're there provision in there their position is there then then everything changed and that way whether you want to call it a policy or practice things change and what he's really argue i think is a pretext i think there's a serious waiver problem here but this is  is an allegation that they were discriminated against and so so maybe it's fortunate you don't have to justify some of the other statements that were made by other folks who weren't the decision makers if we take the evidence as you know as you offer it here really know where the list came from she inherited the list she wasn't in the business of adding names to worse or taking somebody compiled a list at some point that is also inaccurate your honor no she testified clearly that she did add names  testified that when individuals who would meet council members and give them their business card and say we have a presence in the city it's got still and we would like to add our names to the list she added those of your question was that they had contacted the city numerous times trying to get all said twice and i think you just agreed twice again i don't want to go into that i'm not trying to trip you up i just said that's their contention they're trying to get on the list they were on a list and then they're the spend a lot of minutes on this now but i'm just trying to get what is your response to opposing counsel's contention that there was even though the exhibit wasn't admitted that there was other evidence that other groups outside invited place what is your best or the best response is that that's not supported by the only reference in the testimony to an organization not located within the boundaries of the city of scottsdale giving an invocation and the explanation by mr b s meyer's clear on direct it is clear on cro that that was permitted that invitation was made to the head chaplain of the preparatory cademy because the number of children and parents who were located within scottsdale whose children go to preparatory ca articulated this just last year in the city of oakland even if the court even if this panel would reach a different decision based upon the evidence presented to the trial court that is not people came in from phoenix to give this prayer as to the charter all powers of the city are vested in the council all powers article one section two they then delegate some of those powers to the city manager and even if the city manager  but it's the same thing so they look to these people who did not actually vote on these things because mr hawes right contemporaneous statements made by members of the decision making body is a thing