number seventeen twenty five nineteen rita johnson versus timothy morales oral argument is not to exceed fifteen minutes per side mr allison for the good afternoon your honor as i'd like to reserve two minutes for a bottle i think your honor and before we begin i do would like to make one correction to my brief in preparation for the arguments today and page twenty nine in my brief i wrote the sentence all of these should have been dismissed at the pleading stage obviously the word not should have been in there and i want to make sure the court i was not trying to concede anything as part of my briefing before the court one important point and i was here two weeks ago on another case involving the same judge from the same court involving a similar procedural posture where this case is that we are at a twelve b six stage and i want to i guess if i can leave nothing else coming from out of this oral argument today i want to pound on that the loudest and that no answer has been filed and no discovery has been permitted in any of in this particular case and the court had these original complaint the first amended complaint in the second the proposed second amended complaint in the midst of the battle of while this either but at the same token on that is that after my office became involved i started investigating these aspects of this in a straight of hearing system huge amounts of due process procedural due process problems came out as i continued to work on the case isn't just collecting evidence and doing dishes all aspects to us the arguments on coming before you today are as one is that the original the first amended complaint should not the first three counts of that should not have been dismissed and should have gone to start the discovery process also my office as part of that essentially reincorporated those same three claims in the proposed such an amended complaint and that it's essentially more due process problems selective enforcement and substantive due process in preparing for this argument today there's a lot here there is a lot going on in this particular case but at its core is you've got to have a fair hearing before someone who is neutral and detached that's that's got to be the baseline of in a ministry of hearing is there any administrative appeal after i mean do you have an appeal to the court what happened the position of the city in the ordinance says you can appeal to the circuit estimation the way the court rules apply michigan no appeal out of the final decision of the appeals but at the administrative appeals board that may be contested by my opponent on that aspect but my ruling my reading on that is there is no  such basis going forward and you didn't try and we didn't try you know we did not try and in the reason being is i don't think the law supports it there is no basis for me to go in and ask a circuit court to overturn a city administrator system the city cannot legislate how the states how the state court system anil's itself in that respect and there are no city courts in the city of saginaw and that respect and so if you're talking about process  if and when the suspension might terminate the lack of clarity falls to me as well as i read the notice that came from the city manager morales the license is suspended you had a hearing about whether that license to suspend it would go forward there is no basis in the ordinance that i can find to reactivate that license back i can tell you today sitting here today greta johnson's cafe is closed it still remains closed there's been no opportunity to reopen it in any way shape or form since then opportunity to present one's case that should be suspend it's only a three day period that's correct now the problem is the decision though on the hearing wasn't made to sixty seven days later though so i want to separate out i think the cases at least as i read them peripherally deal with the issue you're entitle to hearing i think that it's implicit in least in the decisions of that they're entitle some kind of pre depravation hearings you're entitled to a decision on that hearing as well because if you a post deprivation hearing because at this point this is a post deprivation and she was ordered shut down monday morning the eight after the events that occurred on may the sixth there isn't there is essentially nothing that can occur until we have that particular here my post there was no emergency basis i know the city has pounded on this thing that we can protect the l c of the moral welfare of the community and i don't dispute that's the police powers of government but you can't just come in and say i hereby as a city manager decide you don't have a dog leash on your dog for example therefore i'm going to kick you out of your house and kick you out of the city because it's in the safety health and welfare of the city to have a dog on a leash you don't get that current blondish authority that's where guideline for us that's where my another no argument has come in here in the state in the respect that there's no guideposts or standards going forward for city manager morale us to make these determines the nature of the hearing i looked for it and i think it's on the record what convince the h r manager to allow her to have her business back reopened again and a problem and i'm sorry what do we have you do not you do not and that's one of the with judge ludington is he made a lot of jumping a lot of bridges to get to that conclusion that as to what actually happened at that particular and you have and the other then your burden of proof argument based on the show  battle of well this all is falling down i am challenging the appeals board adequacy be able to conduct that that part of it the hearing the appeals board in the hearing officer work essentially in tandem as i understand it but you're making arguments at least as to the due process i mean it depends upon what this hearing is is it is it meaningful is it you know something where she had a chance to make her point that this was she had nothing to do with this and this you know all the things that she's alleging or or was that you know was it just well what do you have to say if i may i think it's just what do you have to say because and the reason why i would point to that is look to the origins and look to what i  in the first earth in the first and second amended complaint is there's no standards for what she what she has to show cause what is she supposed to show up and do and so she is a citizen i mean part of the part of due process is having notice and the opportunity to be heard the notice part is notice what you actually need to be able to do at that particular hearing and the but she was notified of the ordinance that they relied on correct there is and that is in the notice and then do i understand correctly that this hearing panel is this appeal panel of three persons they they basically get the transcript of that hearing my understanding of that again it was there was no explanation as to their process there's nothing in the ordinance as to what their processes would understand they were presented with dennis jordan's findings and the written findings he made in june of assuming july of of the  year the problem that have them right but that we have i don't believe you have them in the record either white why don't we because these were not issued at the time that these complaints were actually made and that's why i started the beginning by saying these complaints were made in the heat of the battle as this case unfolded none of these things were available at the time when these the first amended complaint in the proposed second amended complaint were provided for this is right on the heels of after the first hearing and the second hearing we didn't have transcripts at this point by the time i showed up to judge letting ten getting him to try to halt this administrative process as being one that's as we call it a sham in this respect the what's important of all of this is a lot and in iran as i know there's a lot here i've thrown on the plate of this  but what the problem is that goes to its very core is that rita johnson as a citizen has to be able to know what it is she supposed to do as a citizen first of all what was her obligations in running her cafe that goes to my substantive due process the city said some gangsters came by and shot up the front of your business and they punished her not the gangsters that violate substantive due process you know what they're trying to get around is they're trying to make this hearing system to paper over the problem that well we'll give you the opportunity to try to fight us on this except the the judge was out before she even walked in the hearing officer was was was a neutral detached she wasn't there the burden was on the wrong party i mean everything was set up incorrectly to cause her to fail before she even opened her word even even brought her first witness brought anything in that respect the hearing officer accepted dentist or excuse me city manager morale is his conclusions system is a mess but you see i can't tell if you're challenging that or if i mean it's one thing to say ok the whole thing's a mess but then we look at your claims and your specific claims are that you can't or that it  process to have a subordinate do this you know that's a very specific claim and it may not have merit and then another one is that the order just so cause you know shifts the burden  i try to find out if if you're objecting to the hearing itself and then i don't know how you do that because it's well here's my here if i may make my  my intention was this was i think the outcome of this particular administrative process resulted in a sham an improper conclusion i can't just come to this court and say they mistreated hearing officer made a bad decision right what i have to show is the process that would lead to that ultimate decision is tainted by problems what problems are they tainted by and they're all the ones you're listing we've got a hearing officer that's conflicted we've got the wrong burden we've got i mean just the list goes on and on and those are the various proposals procedural due process claims that i have made to you to say this system from the get go and all these various aspects is defunct so that because there defunct in the beginning the final decision is suspect is correct that's there is based on the pleadings alone but what we've stablished in our brief and what the court truck or correctly found is that there was no claim pled that could provide any plausible relieve based on we're looking at with respect to these procedural due process violations one of which is the fact that they talk about that there was no neutral arbitrator to be able to preside over this however we're faced with a situation where there is no evidence no factual additions about why there was no neutral arbitrator except for the fact that the arbitrator was the subordinate of to morale as the city manager even the cases that that brother counsel presented for that though however do not establish that that relationship  itself alone creates anything in fact to the case of the case law that's that's been cited for our brief as well as a counsel's brief to address the fact that there is additional additional things that a woman does not do it we're looking at is there something that affects the person to become be unbias and be able to make this decision based on the facts that are presented what is what is the business on there faced with i or let's assume everything she says in her complaint is trail some clubs came along and shot her her business and the next day two days later she's told you have to shut down and she's told that she has to convince the hearing person that she shouldn't have to and i don't know what she's in she's some section has cited so what are the rules i mean what what does the city what are they relying on what do they have to show to shut somebody down like that the city has to show that there's there's some element of the action that requires that to be carried out because they have to protect the health safety and welfare of the general public in the area i mean that that that's what the ordinance states i don't want to split hairs but the other thing is we're not looking at a situation where it's two days before the license suspension was issued the shooting happened on may seventh in the morning the suspension came out on may eight so we're talking about may seventh occurs early in the very next day the very next ok but still what number one what's the urgency is there is this like the fifth shooting or is there any reason to believe that there's a some association between the business and the shooting what your burden to establish this i mean there is somebody is likelihood edition here one hundred percent your honor and that's why that's why we look at this suspension immediately for the exigent circumstances of protecting the health safety and welfare with respect to this there were previous incidents at app or near this this establishment the per the i don't know if we where was the record of all of that your honor that would that wasn't stated i believe in either one except for that i think that was included in our in our brief to this honorable court and with respect to what we don't decide on briefs we decide on the record what one hundred percent your honor and how do we not even have the record or the findings of fact of this of jordan i mean it's not we don't have any of that and that's correct your honor and with the how do you dismiss us on a twelve b six this woman's life it was taken away well first and foremost once again and if i could take a wanted a time well we'll start with the neutral in our board i don't really see how there's any any allegation fact whatsoever to show that mr jordan was not neutral merely because the fact that he was an employee and his supervisor was tim rouse the city manager i think that that's done then we're looking at the i guess we can address both what the what's making the determination and with respect to that the there was evidence taken there was testimony taken the ms johnson had every opportunity to be able to cross examine people to build present her own evidence the dennis jordan made his decision based on the facts and evidence and testimony that was presented out at that hearing beyond that the only requirement for us when we're issuing or when i'm sorry when the city's issuance ultimate's her nation is that the they provide what the what facts they looked at and what they are what facts they base their determination on and the determination we base that on the fact that there were i believe a city officer who had had previous experience in that area has knows about that business and you saying all of this was presented at that hearing yesterday at the at the administrative hearing and did the the hearing pretty quickly anyway i don't the record shows why the city would want to do that i mean why not just you know have a hearing in three or four days before you deprive this woman of her livelihood your i believe the i when we refer to the extreme circumstance i believe the record does reflect about the sixty shell casings found at the scene the gun violence in this one shooter from from i'm sorry i'm the one shooting from from this particular incident that we're at work discussing it apparently is unrelated to her business well i mean though with respect to unrelated to her business though those people were there for a reason they weren't shooting at the residential apartments above above her house or something absolutely sure sure in that in that sense yes you're on your own you're absolutely right it's unrelated but what we're looking at is with respect to the fact that they needed to address the situation that occurred immediately and we i would say that they run the risk with not protecting the health safety  welfare of another gun violent incident happening in that three to four days that's why that's why the suspension occurred immediately and then right after that we had the hearing within the five days to allow to allow her to be able to determine basically put on her case you agree that for purposes of looking at the property interest or probation hearing it's sixty seven days or whatever is the relevant time period till decision and not when you actually well yes your honor but what we're looking at is with respect to the opportunity to be heard that's that's what the procedural that's the process to do is whether they have a fair and impartial hearing to be able to present their other side of the option is that you get a pree that's that's right that's what we presume normally is you're supposed to have a pretty depravation hearing yes your honor so why i mean i don't understand why you couldn't give this particular person  of deprivation hearing before taking the business away because your honor to be able i like i said first of all we had a hearing that was set that the scheduled in occurred five days after i did then the decision didn't get made for three months or two question but i am looking at it also in the sense that what good is it to have a provision hearing if a decision still took a few weeks to be able to make a determination and she's operating in there's another incident there's another incident we're dealing with the situation of not being able to control the health safety and welfare think in that case so i think that the exigent circumstances are present here how long had she been in business i believe brother can so can can answer that better but i mean she had been in business for i have been at least five or six deprived her of her license based upon some random act of violence that was unrelated to the operation of her business well that would seem to me from correct about the complaint to labor council mention that there's a lot thrown at you there's a lot of procedural history with this case but i believe that was for a motion for leave for the senate to file a second and complain that was the substance of due process or right there and i'm not i'm not trying to qualify but i do think that that  makes an important distinction but i was denied on the basis of futility so we still have to look at the twenty six s you absolutely and what we what we looked at night and i believe judge one thousand correctly point out there is no allegations for what was arbitrary capricious there's no allegations to establish what the city did that was so outrageous to establish a subsidy or due process type of issue when they proceeded with the hearing they suspended her licen and that's how when there is nothing no allegations about that of discrimination no allegations that they singled her out no allegations that there was some kind of extreme measure taken that the allegation is that it was arbitra capricious absolutely your honor but concludes really geishas without any factual support well but she has facts are facts are that this thing happened at my premises that have nothing to do with me and they close me down the next set you're right you're right and then your answer is well that's i think if you're saying that's not enough right for yes you're a big because all she all she alleged was that they they shut down her business they didn't allege that that this was done outside of the statues they didn't allege that this was done in some kind of draconian style where they you know ran in and raided her place and took everything we're talking about is the fact no they just put her out of business the next day thank that a nice certainly you know there may be reasons why it's not well your honor i'm i mean we can we can imply and then accept that it's true but i don't believe the allegations even accept as true say that there's no rational basis i think she says it's arbitrary and capricious because the fact that they took my license almost a post hoc ergo propter kind of argument it happened you know a i had i they came and took my license and so therefore it's arbitrary and capricious but that doesn't show that there was no rational basis that doesn't show that there were no nothing to establish that but they had a base like  have would have been no rational basis no facts about the city taking acting outside of its powers or outside of this ordinance which i think was what we exactly would expect when we're talking about that there is no rational basis for this this kind of action to occur basically they're saying there's no rational basis for that statute to be present but the that i would i would say that we would have to be looking at a situation where we're looking at the ordinance and that the enforcement of that ordinance was not rationally based and i don't think that there's anything in the second amount of complaint that alleges any kind of facts that show that that was acting outside of what that ordinance prescribes would you say that there is somewhere not in our records apparently but there is a actual written decision hearing examiner mr jordan findings of fact legal conclusions or something of that sort maybe the same for the appeal panel well your honor and i can't i can't speak to it not being in the  record but what i meant was that there was a notice provided to ms johnson yeah i guess i'm asking that's that's not so much this decision was rendered sixty seven days or whatever after the hearing is that decision something that indicated that her denial of her license was being upheld or something to the suspension of was being i'm just wondering is there anything beyond that in terms of what the hearing examiner determined his decision based upon the hearing that set forth here's how this whole system works this is what is before me i find this for this reason i'm going to uphold the suspension for that reason things of that nature i see  or the decision the decision and all it said is we notify you that the decision has been upheld we notify yes or you tell it well and then there were course talking about there's an administrative appeal that was taken after allison yes i guess very briefly you can sense my frustration when i was before judge ludington trying to explain there is way more here to this that and with these the complaints were originally drafted and filed in the course of while these administrative hearings were going on we have an incomplete record here for for such dispositive relief that judge ludington granted and again i start back to where i started from and you know i don't to bang on the podium but this is a twelve b six everything that i plead has to be deemed true every inference that can be drawn from those facts has to be deemed true the city can't come up here and say oh you would have should have could up the you say as a complete record i mean understands two of the six and we know what the standard is but it's not uncommon to twelve the six scenario not to have all kinds of other  evidence that you might have in a rule fifty six by attaching talk my complaint though it would be if only by attaching and they were available at that particular time the number of the decisions my brother counsels referencing they weren't available at the time when these complaints were filed a motion for a policeman area injunction to enjoin the appeals panel from convening in this matter he denied that but you already had the answer you already had jordan's decision he had at the time that i filed no at the fine of the initial complaint we did not have that we did not have jordan's decision and how about when the judge granted the twelve b six motion at that point that was not in the record either because it wasn't jenner it wasn't copies weren't generated that particular point you know what you mean by copies were intervening meaning the decision wasn't publicly available to us to be able to attach that for as part of the proposed second amended complaint now by the time judge ludington actually ruled the date he ruled those things were in existence but they weren't in the court record from when the complaints were actually filed there's a time gap because these things are all rolling out while the while the  things are going on to me trying to challenge and say stop this process because it violates all these various reasons in this respect unless i can answer any other questions i appreciate that i'm here today oh thank you thank you both of you for your arguments this afternoon