as i was preparing for my oral argument i wanted to answer the question why did judge ocker so quickly and definitively decide to label my complaint one for malicious prosecution instead of abuse of process having the gap between the litigation and district court in the briefing and this period of time to oral argument i was able to step back and look and i think and count one seventy four which is the nuisance complaint against mr stove or and the condominium association and count one seventy eight which is the state law civil rights violation we did specifically a way that mr stover on his own and on behalf of the condo association made f false allegations which instigated and caused the prosecution i think that's where i put my complaint in jeopardy and i believe that it's prudent and i will concede on this record that those two counts do need to be dismissed they i think they're going to run into too many arguments and trying to split hairs on the way i wanted to allege those against those private entities but non governmental actors and because i am i did allege that there were false allegations i can't explain under our binding precedent then how does that not attack the the judgment and the words how does the damage not come from the judgment so those two need to go and i agree with that and i think maybe i have to take some of the blame for not clarifying that and causing the mass of the district court level but beyond that i i just am at a loss as to the completely characterization of the whole complaint i just it just is not a malicious prosecution the the a prime example is on page fifty one of the condominium association brief to this  court maybe i'm speaking that might have been to the district court i believe it's this court they keep saying that we are challenging the fines imposed by the state district court after remained they don't cite  anything in my brief and they don't cite anything in argument anywhere because it's not true we cannot challenge the fines assessed by the state district court on  case is pure and simple but the late tactics the delay of service the arbitrary selection of dates and a avoiding the spirit of the ordinance which is compliance all to gain tactical advantages in the course of the informal hearing process what what in there is the one nine hundred eighty three federal claim violation of the federal constitution or violation of federal statutes what is what is the federal violation here the contours of abuse of process i want to argue there under the fourteenth amendment right you have any authority for that a fact that abus process is a recognizable one thousand nine hundred three clearly i have there we've cited to the cases where this court has said maybe and in several instances the you look to the various states for the elements but why would you why would we look to state law for elements if this is a violation of federal constitution or federal statute i think essentially it's just because of the states have developed it through of we don't want to just allow the states to deal with that why why why should we federalize this as a claim the procedural due process concept of the fourth amendment is designed to achieve fairness and i think when you get to a situation like this where you have if you have a violations i need to see if this state court proceedings were fundamentally fair that there there may be a fourteenth amendment due process claim but that's not what you're alleging you're alleging that they delayed issue in the citations whatever you just mentioned a few things and it was kind of their conduct not not not the state proceedings right you're you're setting that up when you say they're fundamentally unfair you mean the hearings in front of the judge up i mean that's a twenty three claim but i  i reckon recognize they were reduced from the original fines that were assessed but now we've got a level of fines you claim they're excessive but you miss it you cannot attack the state court judgment because that would federal constitution or violation of federal law here that you have so much so far you've just told me well there's perhaps precedent somewhere else but i need some better  now with all due respect your honor we are not challenging the forty five thousand dollar fine assessment after day so what's what's excessive about the fines and it was the fifty three thousand dollar assessment but it was excessive but that wasn't even levied because the judgment you appeal that you had a reduced yes ok so i mean how is that even case in controversy if if there was something that was reduced the behavior of the government actors caused the proceedings to be unfair it's that behavior stadiums were correct them i'm sorry the proceedings were corrected by a reduction in the right but my clients had to litigate and go through that entire process because the city was attempting to extract what could have been up to one hundred seventy thousand dollars all sorts of claims that are brought  well and i understand full well your honor that if you agree with me and send us back to judge jonker we may get to rule fifty six and he may say well ok i think there was a constitutional violation but i'm looking at six circuit precedent and you can't tell me this is clearly established in two thousand and nine but what i'm hoping to do with this case i mean we no longer have to do the sequential analysis undersells here of the versus katz i can't think of the  that said you can do either factor obviously i'm going to encourage this court and judge ocker to analyze the constitutional violation first and then we'll talk about whether it's clearly established because my clients are willing to put in the effort to develop the law if necessary to stop this if they can't do it for themselves and they can do it for the next sort of planets but that's the gist of what we hope to accomplish if nothing else one of the things that we think allow us to go back to the behavior of the government actors is how the proper analysis of the appropriate find should occur how this case is not in my brief but it's something that i found as we continue the litigation in the state court it's united states versus w c guy steel incorporated and it's at looked at the behavior of the enforcement agency and used that behavior to analyze whether a particular fine imposed was appropriate and there's a lot of parallels  that case is not binding obviously on this court because it's a district court but it's also not binding because it was directly within the case that imposed a fine but it it demonstrates what i was hoping to accomplish by bringing this case so if nothing else i would ask you to look at the concept of the behavior prior to the proceeding that caused the proceeding to be took that those remaining issues the sufficiency in the procedure climbs to the court of appeals they denied leave the michigan supreme court denied leave the u s supreme court denied certiorari we got this second set of finds we appeal that to judge cohen he refused to rules that are already ruled on the fines and are going to do it again we applied for leave the court of appeals they denied believe on december tenth of last year last thursday i filed my application for leave to appeal the new finds to the michigan supreme court but you don't have any other claims related to this case pending in state court not in rap  goldring noticed in the briefs where there were mention of rap realty which was mr rich parents that those all took the same path except to the u s supreme court those are all closed we got we got no relief at the state level for your honor scott holmes on behalf of the stove or at least lansing city center condominium association and hope in advance if i seem a bit nervous this is my first public work at any level ever  and i've already made my first mistake by not checking up at that if that's ok you know i can't imagine any attorney arguing before any court who's not nervous that's the natural consequence of  argument and certainly when it's your first time you're even more nervous so we welcome you as we do all eternity today and look forward to your argument are you going to be dividing your time yesterday daily and  finding that certain citations were invalid and that the manner in which the city of police enforced the ordinance violated the law and that's precisely what the state court considered and rejected before this federal lawsuit was ever filed each citation was valid and the city's conduct was lawful the city's conduct cannot be found on lawful without invalidating the trial court's judgment that it was lawful and that's exactly why the district court was correct in dismissing the claims under rooker feldman now the source of the injury is key to the determination the pelton made in their brief that the source of the injury was the state court's judgment assessing the finds now as a the state court's judgment is that the center of their claims and their alleged injury doesn't exist without that's not an independent claim and that's why the district court was correct in dismissing the has to be more than just at the center of the claim or in the area i mean they have to specifically back the judge with for the record feldman to apply and that's why the doctor has been applied so few times as it yes your honor and i think that's why you can't cite the very many cases from the sixth circuit arguments are enough that they allege other things they know the doctrines they're so that they a target not the judgment but something around the judge but i guess usually it's not directed  yes in this in this particular case though and i recognize it is a little bit different here where the really what the judgment is is its findings assessed and i don't know how you have excessive fines if you don't have the judgment the judgment is what is the is what the hoses what they claim or excessive fines the fact that you would have a ticket for fines that could be excessive if they were forced i don't think violates court the federal district court did dismiss based on that but they it on the fact that there is no recognized abuse of process claim in the six circuit but also the district court gave another  alternative basis for dismissal of the use of process claim specifically regardless of whether you you want to argue how it's characterized whether it's a malicious prosecution claim or abuse a process the district court found if they had not sufficiently pled an abuse of process claim even if it does exist because they found that the alter your purpose that was alleged which was to pay a settlement or find which was unwarranted that's not really a genuine alter your purpose and so they just the district court dismissed all hundred seventy three piece of process claims on that basis so the issue of whether this is a malicious prosecution or abuse of process interpretation doesn't matter because it was dismissed under either and both was litigated through witness examination through motion practice the court considered it in and denied and certainly the as the district court mentioned in its in its opinion  human and the arguments in my brief the only thing i do want to address though is the equal protection claim based on their appeal brief it looks like they're only alleging the class of one theory however a class of one theory of equal protection is not a political in a context where there is discretionary decision making and that's that anguished decision by the u s supreme court plaintiff has argued that that doesn't apply here because it's not a public employment context but that's not what the supreme court said in that case the supreme court held that it was not a proper challenge to complain that a subjective individualized decision was subjective in individual eyes it's a categorical rejection of class when challenges to subjective individualized discretionary decisions it's not a rejection particularly to the government employee context the court stated in that opinion right after that that this principle applies most clearly in the employment context the court chose their words very carefully there they didn't say only in the employment context they said most clearly which leaves which strongly implies that it leaves open the door for to apply this in other discretionary decision making situations so far i think i believe the seventh eighth intenser have published opinions which have applied it in the context outside of public employment there's numerous district court decisions the six circuit has applied and one unpublished case and that's five nineteen federal appendix nine eleven that's how vs vara in that case it was a student who a student athlete who was kicked off the asked about team and she sued under the class of one theory and they said that that even though it's not in the public employment context that's a discretionary decision making situation and class one theory would not apply so we would ask that you would apply that here to bar plaintiff's claim harvard even if even if you find the inquest does not apply the equal protection claim was still properly dismissed under  allegations in a complaint must be enough to raise a right above the suspicious suspicion level or speculation level at the plaintiff only asserted john genuine scuse me general speculation about  the all teary or purpose this is not enough to survive equal protection there's no allegations that they were treated differently than other people who violated the housing ordinance i think this is this is basically as you've heard they've one citation for each of the plaintiffs and many months later issue seventy five eighty five each for i guess for every day that there was an alleged violation and i know that the argument that there is in  emotive and irregular irregularity as to the actions of the city but the record reflect why the city pursued pursue you know pursue the matter this way while it's my understanding that they did an investigation those allegations were addressed by judge by the plaintiff made a post trial motion based and the manner of investigation the manner in which notice was provided and the denial of the right to jury trial judge paul ruled that he found that is the typical of the way the city of the lane thing in for this or you know i can answer that i don't know i know in this case they did they did in an extensive investigation i mean east lansing is a huge campus for you know it's one of what the top ten top ten campuses in the country as far as student body they you know they they have a they have a lot of these issues so it's my understanding that they did the all the investigation consists of two events a police officer going to a wild party on november one two thousand marrying and the code compliance officer mr dutch are going back to the premises on january twenty sixth two thousand and ten that's it that's the investigation in the meantime and we submitted some of these in district court there were significant number of e mails and four days in between nothing else except the communications between the private parties and the government actors to answer your other question about routine i i hesitate to go on i don't want to going to argue facts that aren't in the record but discovery here would be a real eye opener for this court and the district court  i disagree with my colleagues about the district court would have had jurisdiction over our affirmative claims in the state district court i'm sorry the state district court would not have had jurisdiction their court of limited jurisdiction moneywise they don't have equitable jurisdiction we simply could not have counter claimed in this particular circumstance under michigan law i also disagree with your colleague about my our equal protection kline i'll have to stand on my brief but my recollection is that the complaint and the briefing in the district court also set that up as a purely arbitrary and capricious approach under the due process clause of the fourteenth amendment so if i'm wrong i'm wrong but that's my recollection is that we had that acknowledge it in the district court and here but the behavior of these city officials was such that we need the ability we being plaintiff's attorneys in  three actions to curb and hold accountable because the conduct occurred to pre hearing and it set up the whole problem for the outrageous fines that were  imposed and when you're talking about a completely diminished why lation so thank you why do you need a federal remedy as opposed to state court as a former state court what's wrong with michigan  resolving disputes like when we came back for example on the after re man we still complain about the fines judge kalat simply refused to rule i don't you know it when you get appeal is really we did for you but then it's over but after the state circuit court from district courts by leave and they said no so that's  mean you know i'm somewhat sympathetic to your claims here but my my problem is are you really have a right to be here in a federal court that's all and i fully understand and we're hoping to develop some some law that says in the future we his staff but if you have not perhaps there would be some benefit for the three of you contacting him to see if these many disputes that you have state and federal could somehow be resolved outside of court that's strictly up to you to pursue not spells not suggesting that you do that or requiring that you