been applied to the senate and i patterned policy now in roberts vs united states jaycee's the us supreme court stated that the right to intimate association and the freedom to choose quote to enter into and maintain certain intimate human didn't understand someone to be claiming he was not intimate with saying i thought the question really was which president is more important to the louisiana deputy than debating case or does applicable and on point and i believe that so because i believe this supreme court decision in j c states that the right to intimate association is a fundamental right and then this court held in the debating society including a debat term the blocking was dealing with marriage which seems closer to the jane doe and your client relationship then the whole club is well that's true your honor with respect to the actual facts of the case i guess the as i just mentioned it's all position that given the fact that mr lewis is right that i'm an association is a fundamental right we submit that the proper standard review is strict scrutiny and we do that and we put forth that proposition here are based on this court's have i know you didn't argue this but in the alternative the same as to make that this type of relationship the ten however ten year stable relationship in which this man dedicate himself to his partner and her children is more like a marriage type relationship and under the state constitution intimate association would be stronger in some people's eyes but i certainly believe that relationship i think that that would qualify as an intimate association and therefore woods would survive any level of the policy should be  level of scrutiny the question st st we have to do we look at the rules and just by itself or do we say was mr lewis then it from having intimate me some people being quarantined in place that's making it harder on them well i would say that's an impingement on that guy and so the question is directed substantially where does that fit in the future because i'm not here to still would say though and he still employed it he's not you know starving or whatever and i'm not making a lot of that and i'm not making light of losing the job you love and whatever but i'm just asking where is that line if you that other job with the men of the police department he had to start over the deputy with a substantial loss and pay so the fact that yes he will be able to find another job he didn't leave his relationship those are those are true but he had something like that at the moment but i would say that any policy that condition you implement solely on the basis of your relationship with someone else i think you're going to be subject to at least some level of scrutiny and in  relative of mine within a certain degree as my last clerk and so on and on i mean there's a lot of me and my nepotism policies out there in the world and to say they all have to be subject to strict scrutiny of favoritism or preventing you know issues like that from arise and i'm certainly not suggesting that every nepotism policy will matter what would would have to be struck down i'm simply suggesting that those policies you know should be looked at to determine whether the interests of the state and in acting as policy is sufficient such that they're entitled to impinge on the fundamental right of association or right of marriage or whatever that relationship policies that none of them prohibit the relationship between mr lewis and jane doe simply because she was a pi a convicted felon and fact is as i believe good standards recognize lose your honor the medical police department hired mr lewis with full knowledge that his spouse she thinks his girlfriend the woman he's been living with grover ten years was a convicted felon i'll submit that the quandary ok well that's what i was trying to clarify my mind how the judge was aware or not specifically about the a minute because that's what i understood it was part of your  opposition otherwise i'm not suggesting that it was him imperfect in any way i just i was just trying to get to have it was teed up front and center because of your argument that the court didn't address it head on in of just one and you know was it focused on in a specific way to where you know there is or did the other side specifically point or argue b was it kind of subsumed within the overall falling in opposition to which the other side such that dad might account for the judge not even mentioning it yes it was listed after my reasons for why i thought the most and to dismiss should be provide additional information with regard to the right to intimate association claim selecting an oarsman claim and the overbroad claim i believe that's are all right thank you  first of all just just for the visuals in the room with you this is my associate cody acosta in mourning aren't more impressive here well again good morning your honor it's been a number of years since i've been able to appear before this court it's always an honor and a pleasure and i appreciate the opportunity to hear in these unusual circumstances that we find ourselves i'd like to kind of repo kiss and get back on what you really latch on to what is i think the question here and with respect to this issue we will accept for purposes of this argument and this this issue before the court that mr lewis's relationship with ms doe is intimate and it is close and it is you know has all the marks of a marriage and everything but name he's living with her he's raising her children so for the sake of discussion let's assume it is it's him and i will i would suggest if it is should be treated just like marriage well i don't want to assume that i'm not sure if the courts have ever said one way or the other that just living with a woman or a man if you  and just pure friendship yes absolutely judge it is it is a close and intimate relationship we will assume that and the conceded for purposes of today's argument but that is not the end of the analysis because this is not the case where the state of louisiana or the sheriff for that matter is telling mr lewis if you get into this relationship we will use the power of the state the laws to punish you we will put your life and liberty at risk that's not the issue and that may be the cases and that may get you the strict truth if that was the case but it's not just a judge hayes pointed to this is no different from a priceless standpoint than an anti nepotism calls or purpose policy provision which says you can work here but you can't work here and also mary your supervisor if if this was a county government or a school board or a sheriff's office just one just the same as in this case where it's the chair to say you can work here but you can't work here and also have a close intimate sexual relationship with an inmate or as are someone who is a known convicted felon and mr lewis doesn't dispute the fact that miss doane is a felon it does always known she was a he only disputes that because she's she's very close and intimate to me i should be able to live with her being a felon and my job should be put at risk and that's not the law and we have the district court listed a number brief or in the out in his complaint does he say i had no idea this policy existed what he alleges is i've started dating this woman in two thousand and six or seven i believe and then when the new sheriff took office which is share current chair there was a facebook post that said something about a newly promoted cast which he took to mean that relate to him and then he self disclosed the possibility that this was an issue and then an internal an seventeen somewhere around january i believe and again it didn't name him but it simply said a newly promoted captain which that included mr lewis is a new captain promoted by incidentally by the current  so that was in january and in may of two thousand and seventeen mr lewis was called into internal affairs confronted with the information the ms doe was in fact a known felon and he was asked if you are in fact living with her have polled it is precedent to that effect i don't again i don't think there's any case law out there that says government cannot make a difficult choice for people with respect to their partners it is not to say that we're going to lock you up or deny you the right to marry in the one you so choose the issue is that is government have a legitimate basis to require people to make a choice whether it is the love of their life or is it the j change you kind of touched on that with your questions about and find that this is a policy that's a choice that people are confronted with all over this time through all the time government makes people make those hard d choices that doesn't mean their own constitution here this is a you either live here tap or you lose your your wife well arguably that's true but just as in the case that we talk that are in the district courts where you've got ice and ice and bart stevens plumber the the the border patrol's case which is cited in our brief which is be james versus dale decision out of the federal court appeals court  c that essentially government has a right to make these hard choices to its employees and anti fraternization policies are legitimate exercise of government's prerogative which is to which is to make all of those really clubs that we said are fundamental rights of association and in our state constitution we give at least intermediate scrutiny to affiliations with someone who's going to tuskers wife well i would suggest a good judge of that this is different this is not the same case this is not the government imposing itself on the members of a club saying you either do this or we will fire you we will put you in jail you would do what we tell you to do i e allow these other people in the your club or the full force of government will come down on that's not the case here again the cases throughout the land on  distinction which is it's not the government telling you you can't do something if you buy a late we're going to come down on you make you pay a penalty montero earlier your your liberty the government simply say you can't have both you can have our patient and also the job and that is a choice that has been recognized as legitimate throughout the land departments of corrections have the same choice all over the we're all over the country where the baby and the cases are in the in both our briefing and in the district court's opinion which says you can't have department of corrections in employees marrying inmates and that's been a legitimate finding and a legitimate exercise of government parag it is all over this country for reasons which are readily apparent we don't want our inmates in our correctional staff get married because obviously that's the calls the whole system to be questionable is this inmate going to be treated the same as everyone else is this guard going to do her job or his job to this to the extent we would request because that has got is he's got his wife on the other side of the understand it or judge i would simply suggested that's nowhere in the record whether i know the plaintiff said that i don't know what the man of the mill public policy is frank we don't really know what that you know any policies are beyond the sh louisiana absolutely yes your question the reason for it i agree but it also suggests that it's not a direction substantial impact on his right because it's not left homeless or without any ability absolutely absolutely you're out of that that goes back to the heart of it which is we're giving him a choice you would be able to bring out a trial we could but frankly i don't think it should ever get to that point your honor based on the law based on the precedent based on cases throughout the country that all recognize that at the gym a government interest is not going enforced in this case because strict scrutiny is obviously inappropriate prior precedent i would disagree with you on i think those cases that we talk about the debating society that's not a clear precedent that is not that is not the state's saying you can you can have a relationship or you can have a job but not that is not the case that is those other cases that you talk about whether the  government's coming in and telling you you have to do something or we will take your money or take your liberty that's a huge distinction that a kid cannot be overlooked that's the distinction between these cases that i'm talking about and that sad i don't think so government telling you your life and liberty and your and your property is at risk if you don't do what we tell you to do this is simply saying you can't have the job and the relate the prohibited relationships you have about this one of the other your choice your liberty to choose what we can get we're not going to do give you both just like a federal judge can hire their son to be as long as you can say well i'm not gonna be a federal judge anymore so i'm going so i can go get a job because in this court you have that they stayed on the job but that's neither here nor there i guess i was simply addressing a point made earlier i really don't i'm not obviously an expert on that i tend to think that there are nepotism provisions throughout government on all levels federal state and local and they're all valid because they serve that legitimate government interest which is we don't want government to become a bastion of family connections we won't government to be public servants and i think and the district court was correct in the specific those the procedural due process under the one under one under the th amendment and yet in the district court it noted properly that there was no property interest alleged brief or otherwise and thus it was properly dismissed with respect to equal protection under the th amendment the court here the district court here correctly noted that the plaintive has to allege and ultimately prove that he received a different treatment than others similarly brief we have the actual policy there for the court to look at and i don't know how the policy ever be less based it states where mantic or intimate personal or other close relationship between an employe sentiment that we all know what that means and what is the definition of unknown felon inmate or other incarcerated individual obviously we all know what those those individuals and that policy is not but it is the best thing i don't know how to share that ever make it all the constitutional challenges are maryland official capacity claims have to fall then there's also the individual capacity claim and the district court correctly noted that because of the lack of any clear precedent in this case that the share but nevertheless be entitled to qualified immunity that really was not briefed by my opponent so i think that argument is weighed and the last i've only got two minutes so let me just touch on briefly this failure to  is not an absolute to depict defectiveness of the district court's ruling because the denial of a lead to a man is reviewed under the abuse of discretion standard a which is a high standard as the court no doubt is aware and that's found in your own the carroll case from two thousand and six and there are permissible reasons for why the denial of or the denial of lead to a man and that's under the fold and united states supreme court's decision for my team sixty two and some of the things some of the reasons why one can be denied a leap to a man still a bad faith dilatory motive in futility let's look at the facts that are in the record the plaintiff filed a motion to compel on october th two thousand and eighteen asking for information about a whole host of employees and other individuals that have some connection to the sheriff's office and they've made that there was an order issued by the district by the magistrate court which was never appealed to the district court on plaintiffs did nothing he did not amend his complaint he did not do anything else to say ha ha now i have my equal protection claim fully briefed and ready to go i meet a man while also he waited eight months and then when the district court to amend his complaint i think he would he had a right to do never did he never either put in his opposition what he would offensively he would do to cure it he would have to give names races by how they were treated differently than him never done that never on employer it may not without substantial justification condition employment on the relinquishment of constitutional rights there are certainly cases that there that say that the state can't force an individual to choose between exercise and is fundamental is there was the nine month gap between things when you could have amended file you know what you intended to minute set or set or he says basically you said i don't it did not formally filed a motion to me and so just respond to that you are if i'm not mistaken my motion to my opposition to the motion to dismiss was submitted before the most of the compelled mr congo's was referencing and in impractical but only other hand it's abuse of discretion is is the standard so that's why the question is to what extent and how you know it's all kind of teed up so the judge can deal with particularly because your argument in part is the judge didn't respond to it and they did not that he didn't respond to it and that's what triggered my query of ok does the judge really know that's what you have as opposed to peeling your opposition to the motion but not really reading or viewing it that would then it is some requests to him in the pleadings themselves but i mean you've answered what you did some issue to repeat the question but once coun mention this timeline i just want to give you an opportunity to respond to this nine month timeline that he says basically you said oh no that was a thank you