my name is larry barbie year i represent the village of even till and i'd like to request five minutes for rebuttal we're dealing here with a statute that the village of even bill passed for the health safety  welfare of the residents of the village of even the hill and then amended after the district court made its decision saying that because there was an explicit warrant problem for vision in the first so and it just said to the code in force or will have those remedies provided by law he wasn't prepared to say it was constitutional although we didn't specifically say it was unconstitutional but he did grant the injunction after that to figure out why do you continue to say that the ordinance permitted war search is assuming there are no existent circumstances when the language says as provided by law and you can't have a because it only provided for the remedies provided by law in a warrantless searches and provided by law the there never was a warrantless search and in fact mr lehman actually signed a waiver  he received his permit without a search but the court said that well that's not good enough because it doesn't say you have to have a warrant so the village of even they'll then went back to the drawing board and revised it amended the ordinance and now it says you can only enter with a warrant based upon probable cause or an emergency circumstances and the case law is your honor that will go up in the court of appeals it's the amendment to the statute that the court you consider that's to kentucky right to life case as well as a bench billboards a cincinnati case so both of those cases discuss that the fact that when an ordinance is amended after a ruling on an injunction the court of appeal should look at the new ordinance in the new ordinance specifically says that the property owner has the right to refuse consent to enter and it says if he does that then the code or force or i was the building inspector has a right to go and ask the person who is living there if he can enter or he can get a warrant and enter the home was probable cause and then he can enter on the warrant or he can enter emergency circumstances what's your take on the standing point given both the original language which didn't seem to contemplate constitutional violations in the reality there hadn't been any warrantless searches and why why why is this allowed to speak why isn't this just a request for opinion i believe it is a request for an advisory opinion i don't think the point it does have stating your honor and in fact i think there is it's clearer under the amended statute that it was under the original ordinance because under the avoid an inspection entirely simply by submitting an affidavit that his property complies have both of these people testify both the plaintiffs testified at the hearing that their property complied with the ordinance there's no threat whether it was there any evidence of threats of searches without consent you know without a warrant in other words if you continue to do that you can expect a search in the name that is there any evidence along those lines now on the contrary the building code of force or testified that he was a building inspector for the city of cincinnati for many years and he knew he couldn't go into anybody's property without a warrant and that he had gotten administrative orange many tops while you like the lack of standing problem is that your best solution you've got a new law that makes it crystal clear that whatever the complaint was before is gone and it wasn't standing for the original case and standing as much the first argument i was going to make and i agree with you completely i think that there isn't standing i think that for there to be standing first this is a facial challenge so plaintiff has to prove that there are no circumstances under which the ordinance will be constitutional plain of bears the burden of proving standing in order to prove standing he must prove that the injury is concrete particularized than actual or imminent and here at most the injury is speculative there's never been anyone who threatened to inspect any of these properties there has never been and inspection of these properties without a warrant the ordinance itself says the code and force are can only go with their property with a warrant based on probable cause or an emergency circumstances so if we're talking about a pretty  injunction we're talking about something where the injury in the future must be certain to occur here at most it's remote or speculative and if you look at the susan susan b anthony case and the clap clap or case both of them stand for the proposition that the plaintiff has no standing here and i think that there is a strong argument on behalf of the village of even dale and i think the mood is as well but i think standing since article three standing is a subject matter jurisdiction issue that the co will raise on its own i think standing is of something that has to be looked at first it's to make sure that the court doesn't usurp the power of the legislature and this is certainly an advisory opinion because there's nothing under the current warrantless search will not occur the fact that that could possibly occur is very remote speculative and i think based upon the supreme court law susan b anthony and clapper this case should be dismissed for lack of standing  difficulties of being on the court of appeals as opposed to the district court as we don't really see what's going on it just smacks that there's something something we're missing here as to why this lawsuit was filed not asking you to go way out of the record but these are some longstanding animosity between one of these plaintiffs and the village your they mad about something what's going on mr vander har work for forty eight years i think for forty years he's been involved with the village of even the first as a police officer and i think he was on council the when they were to and he's had i think it was thirteen properties all of which are at least out into those even though and when this ordinance was initially being contemplated they had a number of council meetings where they discussed it and mr garner who are caught up in spoke at these meetings and said it's because it's going to be unconstitutional there are cases out there that say these ordinances are unconstitutional and i think he thought that it was aimed at him i'm speculating a little bit there he didn't testify to that but he did testify to the other things that i mentioned and i believe that that's why this suit was filed because any did receive c citations for not receiving for not applying for the permit and he never citations for not having the permit they argue under the statute that the citation for premature but there was never a threat and inspection without a warrant that never happened but i think that the suit was probably a result of that i think the next argument your honor on behalf of these it will do even bill is that this is a mo situation just to make sure i'm getting something let's say you're right about standing on the fourth amendment and in the normal rule of something you know if there's a lack of article three jurisdiction and that was a problem with the district court the normal remedy would be to vacate the district court decision on the fourth amendment does that take care of this case or what's left i think that does take care of the case since the ordinance has been amended out there it's not the case will be dismissed in its entirety because there is also a claim against the building code in force or and the administrator there are claims against them individually that this case will not clued you're making the point that's not part of the plumbing junction so that just goes back right it's resolved in its own time right and that in fact has been all going to play just bought a motion to amend their complaint in the underlying case but was far as a problem area junction goes yes this or has it been changed this ordinance now clearly we think we thought it complied before with constitutional requirements but now we don't think there's any question about that so there's no standing here so this this far as the constitutional claim on the fourth amendment i think that should be out of the case completely the ordinance is constitutional what's the basis of the claims against the individual well i think they have to do with the citations and i think they're claiming that those citations were retaliatory for filing this complaint and things of that nature contest nothing to do with the inspections obviously we will argue that under the one nine hundred eighty three jurisprudence giving a citation is not a seizure for purposes of malicious prosecution or something of that nature but that's what those claims are generally going toward is concerned i think that the kentucky right to life the bench belmore case are right on point and they say legislative repeal or amendment of a challenge statute while the case is pending on appeal usually eliminates the requisite case or controversy because a statute must be analyzed by the court in its present form and the only time that the mood is would not apply is if there's been some statement that's made by the village of even deal  injunction is reversed that in fact we're going to reinstate the original statute and that hasn't happened this sort of there's no up thank you all right thank you very much honors the even they already know rental registration code that was in effect in september of two thousand and seventeen and the amended version that was passed in february two thousand and eighteen both failed to satisfy supreme court controlling guidance from about the standing that seems like only question whether there was jurisdiction at all what are your thoughts understood it was just said and judge sutton thank you for raising that question when the court asked by letter brief several weeks ago on this issue and frankly we strongly feel that our clients satisfy the standard that is laid out in the susan b anthony case that they need not expose themselves to prosecution to tout challenge what is clearly an unconstitutional statute as i think you have to show that there is more than you know has been more than a speculative risk that there's going to be an unconstitutional search and you have the language of the statute which judge mckeague referred to you have as i understand it a record in which there's been no warrantless searches and you have a record in which there's no threat of warrantless searches and and then to the contrary just to be clear they decided to amend it just to make what they thought was already clear doubly clear and i seem you agree right now it's constitutional with the amendment right well your honor we do not agree that at this point that they have satisfied the supreme court guidance of and see versus seattle when it comes to the language of the statute and i and i will get there and i understand this court's concern that that you in judgment he give both raise with respect to the standing issues so let me go to that issue is mr barbiere mentioned there are three clear elements that have to be satisfied in order for there to be a live case or controversy under article three which is the first the injury in fact issue the threat or a concrete or particular risk to a vial nation of a protected interest and some actual or imminent harm there where i think the village is clearly wrong with respect to this is there was a very real clear and present danger when it came to the fourth amendment rights in the fifth amendment rights of our clients that judge perry recognized in the record of the case i would point the court to the exhibits four five and are you focusing on the fourth amendment here tell me tell me one of the folks yes your honor at this point the focus is on the fourth amendment issues because that is the year end of the decision exactly that and judge parent did not deal with the fifth amendment issues but if you look at exhibits four five and six that were part of the record that every witness that testified in judge bear in front of judge barrett in the september twenty seven thousand hearing testified about and related to demonstrated that in the exhibit those were there so what's in the exhibit exhibit four were the twelve letters that mr vander horror received in june two thousand and seventeen notifying him of his requirement that he register with the village of even dale his within fourteen days of the date of the notice and it cites to section fourteen sixty eight of the property maintenance code so that doesn't make any reference to a search so what led to that does not tell us something in there that related as not specifically that the the language in the problem is the language of the forms that the village use differed from the language of the ordinance itself however in the if you look at exhibit six which was blue park place l l c which is one of the pla elsie he certified that he understood his property is subject to exteriors inspection prior to issuance of the rental permit so there was a limited search that was done by the village prior to the issuance of the permit but that he also understood that the property could be subject to an spit in your inspection and that it could be reinspected prior to any change of occupancy why does that show it would be without a warrant or lack of compliance of the fourth amendment mean you're building so much suspense up just how is the key language would look at whether the thing that really has something to do with the third you have to keep the key language is the the original ordinance from september of two thousand and seventeen anything in the documents you are pointing us to that says the property will be searched or could be sent that's simple those particular three documents none of those specifically say that the property  i was the best up there mike you know it's it's the test it's the testimony from mister mr mercer the building commissioner mr elmore who was the village administrator your south of whom saying that somebody that an ordinance can be unconstitutional because somebody thinks it is even if they have no basis for that it can't be the law no no it's the or it's the language of the ordinance itself that determines whether or not it gives reasonable notice to individuals that the property that they have could be subject to a search and under what circumstances and what conditions they could be subject to a search client thought but i'm not finding anything in the record that supports that bob the original ordinance itself which was what was  issue in front of judge barrett which is exhibit one which is fourteen sixteen when we get into the search fourteen sixty eight point one three says where it is necessary to make an inspection to enforce provisions of the code or whenever the building commissioner has reasonable cause to believe there exists in a structure or upon a premises a violation of the code the building commissioner is authorized to enter the structure at reasonable times to inspect or perform the duties imposed by the code that's fourteen sixty eight saying what are you reading that it's fourteen sixty eight seen from something judge barrett's exhibit one exhibit one which is the which is the september twenty seventh code that was in front of judge perry what what is exhibit one it's the code it is the code from september twenty seventh that's the same  there isn't it but that but this is just this is the same code that says the remedies provided by law to secure entry it is the way you read in that part well in that that's what necessarily leads to the next because then it says if the property owner refuses to allow the consensual search for the building commissioner to then come in then the building commissioner has recourse to the remedy to everything you first read dealt with a consensual search nothing unconstitutional about that on his authority to third reference the law if the law requires he's going to have to go get a search warrant well that's exactly and mr mercer apparently testified that he understood that but judge barrett was correct based on controlling precedent from the supreme court virtually every circuit virtually every state that has addressed this issue that you cannot simply rely on the goodwill of one individual who may have experience mr mercer could retire tomorrow he could pass away tomorrow there could be a new individual who doesn't understand what the requirement in law in is that every ordinance would have to say that you would have to spell out what as well as provided by law means and it would have to say that you would have to express the say you have to go get a war absolutely now is there absolutely is there a case that says that you have to use those words as opposed to as provided a law which seems to wholly subsumed those words certainly it does the camorra case says very specifically administrative searches are significant intrusions into fourth amendment interests and when those are conducted without a warrant process and procedure they lack sufficient fourth amendment protections what come our requires one to see requires what virtually every circuit requires is that you have to have an affirmative empowerment in regulation of the building commissioner we don't have that here you have to have a standard for the judicial or adjudicate of officer to decide whether a warrant could issue we don't have that here you have to have a clear notice and due process and a procedure available to owners and tenants to indicate that that had to be in your order i mean yes it does you're just i thinking that this is a fourth amendment standards comply with the fourth amendment then that might be problematic but that can't possibly be an injury that that well the the the real the real threat to are to mr layman the which the threat became very real one mr vander horror was prosecuted simply because he objected to what he perceived were the problems with these issues as he had done before the statute was passed and they have i'm sorry the ordinance was passed after it was the the idea was if he was well he was issued twelve twelve misdemeanor citations the ordinance itself allowed those to be assessed at one hundred fifty dollars per day for every day of the violation at the top at the time of the september hearing those fine them out of an annotation screw out of unconstitutional search correct there was there was no search of mr vanderhorst properties at the time that the the at the time that the suit was commenced there was an exterior search of mr lehmann's property by the time the suit had been commenced with what was the that at that that at the date that he had not registered his properties pursuant to the rental registration code that was the basis of commenced he had commenced that process on july twelfth by picking up the packets for his properties those as you can see in the documents and this is this was exhibit five in front of to complete and submit those documents to the village he was cited on july fourteenth so rather than giving them thirty days as they said they were going to give him they actually gave him two days before they cited him for a failure gretta still missing what's this got to do it for them in the tide of the fourth amendment is the day that he actually was cited was the day that he asserted his rights by filing the complaint with the federal court saying wait a minute this whole scheme this whole regulatory scheme under which in order for me to register i have to give up the rights for the building theory that the filing of his law was communicated to the individual citation so the individual could run out and he threw a citation to your client judge givens that's part and parcel of what we're engaging in discovery on now i testimony from mr mercer is at the time that he issued those there was awareness that a lawsuit had been filed by mr as by mr  so coming back to continue to address the article three issues with the last minute here there we do believe that in the record there is a clear causal connection between the injury in the complaint of conduct that is that the our clients have been required to compromise not only their fourth but their fifth amendment rights either in making the election to comply with the code or to contest those rights clearly there is shoes with respect to the fourth  and we would ask that the court affirmed judge barrett's determination there's no further questions thank you cases cited by mr read and they did not say that the language which was in the original ordinance was unconstitutional they didn't deal with order this is that said that it consent is refused to build the commission can act in accordance with the law or words to that effect they just didn't say they just said you're going to have to submit to the inspection that's why they were struck down not know where news was like was similar to the first even the ordinance was struck down but the now the ordinance goes well beyond because of all these other alternatives that they could do other than an inspection and it makes it explicitly clear that there has to be a warrant on pace to pop probable cause to do it inspection and then finally i don't have camaron front of me but what mr  that there had to be reasonable suspicion or whatever we did put in our ordinance that we had to have probable cause and there are other cases that say that's good enough to mark a beach case we say we actually that mark a which case is a third circuit case that said there ordinance was constitutional with respect to the fourth amendment and we copied their language and we do say it has to be a warrant based upon probable cause in the  language if you said you had to act in accordance with the law was insufficient as has been plaintiff's argument by the third circuit when we did the amended ordinance after right what what the judge said is he he couldn't say that it was unconstitutional or constitutional but the ordinances that had been up held had explicit warrant provision in them so therefore he certification from an engineer or an architect and added the explicit warrant provision based upon probable cause and copied it right out of the mark which case that has been held constitutional by the third circuit the only other argument i would make your honour's is that there was a mention made of an exterior search and the only exterior search testified that it was testified to by donald mercer he said to me he made that from the public right of way he didn't go on anybody's property to his exterior searches he only did that for the public right of way it's a village of even those position strongly rotters that there is no standing here that this case is moot insofar as a fourth amendment claim is concerned and we would ask that you reverse