long as they choose to effectuate they're a means to the filing of litigation they will be immune from liability but to focus on three topics in my comments this morning the st is why nor pennington should not be applied to anti discrimination cases the nd is how the court should evaluate petitioning immunity particular with respect to governments and government like actors in the context of an anti discrimination case and the rd is the illegality of the defendant's underlying objective and their lack of success in a ving that objective it's important to remember that c s m and withstood two and a half years of unsuccessful appeals that were prompted by a discriminatory public outcry that followed the announcement of its residential addiction treatment center the community stated goal in publicly available emails was to keep those people from being located in their in their neighborhood the actions of the courtier metro district and it's an extra couple intertwined partner the property owners association have exacted significant costs in delays on c s the men but more importantly it deprives us a man's perspective patients of housing and treatment during the period it took to resolve those appeals all of which were conclusively resolved in c s m a favor and while c s m n had the financial wherewithal to survive those appeals there are many other providers of housing in treatment who wouldn't have this will not be the last time that a facility offering addiction treatment services will seek to locate in a residential neighborhood and it's certainly not the last time that a discriminatory response will surface which highlights the importance of getting this case right so i'll go to my st topic which is why nor fence that it's right and so and i think we're also dealing with a fundamentally different statutory structure here this court in khartoum said that it needed to adopt a statute specific approach to address right to petition immunity and so i'd like to talk about the specific approach that we suggest the court adopt in being case the supreme court observed that there may be circumstances where reasonably based but unsuccessful lawsuits filed in the pursuit of unlawful ends might themselves be found a lawful and that also followed on the supreme court's observation and bill johnson's that claims filed with an illegal objective simply fall outside of the st amendment that then we look at the subjective motive in filing the case would you agree that's the correct task from the supreme court on st amendment right to petition i don't know that i would agree with that i think in being k the supreme court left open the possibility that you might have a reasonably base but unsuccessful lawsuit that is filed with an unlawful motive that would itself be unlawful and i think that the statements in being kay and bill johnson's are actually consistent with longstanding precedent that enjoins or penalizes discriminatory petitioning activity by governments and government like actors in fact seventy years ago when shelley versus kramer the supreme court considered whether it was racially restrictive covenant could be enforced by state courts it up there it applied a constitutional equal protection analysis and determined that see courts could not be used as vehicles for discrimination this is also the same theory that underlies circumstances were governments themselves see to enforce discriminatory laws but the be in k ruling the what i need to know is what particularly are you relying on say the two prongs are out under b e n k so i'm in part relying on cartoons and cartoons this court of his or that a statute specific approach would need to be developed and in the specifically offered that you could get rid of the objective basis problem but what it said is that a statute specific analysis would need to be developed when we're dealing with a countervailing interest to the right to petition on that case  specific approach developed and i think there is actually a way that whatever this court said in the in professional real estate investors versus columbia pictures the supreme court i think pretty clearly said only if challenge litigation is objectively meritless may a court examine the litigant subjective motivation i mean that's something a pretty specific directive to me it is and i think again that's an antitrust case and then be ok and bill johnson's are our national labor relations act cases i think if this court is going to look at the statutory structure of the fair housing act and the eighty a to determine what type of test to apply you have to consider the subjective intent of a of a plaintiff in filing litigation because when we look at for example but this subject of anti competitive attempt at intent really isn't any worse than subjective discriminatory intent right i mean they're both ills that congress decided to pass legislation to protect against i'm not sure that's true i mean i think there are there are good policy reasons for why you would apply that objective baseless this is a gatekeeper in antitrust cases there is sort of in business it you know business is constantly seek favorable terms on which to operate including with respect to regulation the government can grant a monopoly in an antitrust situation here we're dealing with statutes that prohibit the government from allowing discrimination under any circumstances  and moreover we as a as a society have determined based on those pieces of legislation that we don't we don't want to encourage that type of behavior unlike competitive business behavior for example are you arguing a different result or a different rule in a fair housing act case than from a national right labor relations act case so i think in this case the court has an opportunity to create a slightly different rule and i think that rule can basically be gleaned from this whole volume of cases where you have discriminatory enforcement actions for example or a discriminatory condemnation action discriminatory evictions and then all of those are sort of deemed as being outside the purview of the st amendment i think you can get there and find for us under an objective basis this analysis as well but what they sought was a result that would have plainly violated federal law it would have been an interpretation of the p d that would have allowed residential medical and professional office uses to the exclusion of residential treatment that something that this court in bangor found would be official violation of fair housing act and the eighty eight and the arguments that they use otherwise were on their face meritless least they tried to argue that the lodge needed to remain open for public access and that was that was on its face not permitted by their p sorry by their declaration of covenants which was available to the entire community it said that there was to be close or sold any other at any time they also sought an interpretation of the p d that the thirty four outpatient versus and patient well i don't i think it's that that can hardly be considered a victory i don't understand why you would say that that so the work i don't want outpatient facilities of any kind regardless of the patients there's a distinct difference between her i'm sorry inpatient facility as an outpatient and that that was the point so that the proposal that was brought before the board of county commissioners was one where housing would occur on one part of the property and treatment would occur on another part of the property the border county commissioners looked at that even though c s m and sought an interpretation that would have allowed inpatient treatment because it viewed its use as an inpatient at that time the border n chose to nevertheless to proceed with the argument that it did cover inpatient treatment c s a chose that and therefore it wasn't dispute c s and then whether they decision that it was an outpatient use so i don't know how that could possibly be considered a victory for them given that it resulted in the same plan that c s the man had proposed to the county and they continued to appeal from it for two and a half years it's a victory  so long as they can conclusively prove that something what happened they don't win then i don't know how you can really say that they got something yes client wanted and patient got the to the question what what system and saw it was the ability to do a residential treatment center what they opposed was having a residential treatment center in their community i would encourage the court to look at the hanover decision from the rd circuit in which it says that success on minor collateral issues is not is not success for purposes of analyzing whether there was objective merit to a suit and i would say that since we are now here two or three years after that because of  that they continued to pursue that that was not success and was are the rest of my time but if i m good morning your honor deborah oppenheimer on behalf of altitude community law i'll be answering addressing specifically a small issue which is the issue of plaintiff inability to plead a full complete case as we said know our briefs this is not about what the plaintiff has set forth in his appeal brief nor what they've just argued in front of much of that was not in the nd amended complaint even though the plaintiff in the lower court complaint amended their complaint two separate times they fail to meet the twomey and it will stammer what they did is completely fail to set forth distinct facts to demonstrate that in fact the actions on behalf of the property owners association of the district and the eleven individuals named discriminated what they did was repeat repeat repeat they discriminated they discriminated they did this with intent to discriminate but they never they never laid out any clear factual allegations against any of the individuals your honor the claims don't set forth anything other than legal conclusions they set forth the facts or the elements as laid out for the claims but fail to set forth facts to show those and demonstrate those threadbare recitals of the elements of a cause of action supported by mere conclusory statements do not suffice which is why the district court dismissed the f h a claims against everyone because it failed to be pled by the plaintiff and this is the arguments just limited to the members of the legal committee no they failed to plead clear evidence that anybody took any action if you look through the entire even after they added thirteen paragraphs to their nd amended complaint they did that after receiving our motion siddhis meth and they still fail to lay forth any allegation of any delay caused by the property owners association by the metro district or by the eleven individuals there are no allegations that set forth any facts that any of them took any action  circumstantial evidence in the plane alone what was pled to her doesn't have to be direct it doesn't have to be direct but it has to clearly set forth what the action was that causes the delay there's nothing within the complaint that ever set forth any delay on behalf of any of the individuals there's nothing that sets forth any specific actions by any of the individuals or the property owners or the district again it's just conclusionary allegations that this is discrimination and this is it's intent to discriminate without any specifics at no point in the complaint anywhere is there any details about any action at any time that caused any delay and then they never set forth even any facts even circumstantial facts just set forth how in fact there was a violation of any of those claims thank you morning your honour's lisa mc lee i'm going to be speaking to the petition immunity issue the st amendment clearly prescribes that congress shall make no law abridging the right of the people to petition the government for redress grievances and yet that is exactly what appellants are asking this court to do they ask this court to find in the instance of both f h a and eighty a if there's a potential claim there that petition immunity should not apply a dangerous argument ignores the value of the bill of rights and the constraints that the bill of rights places on legislation isn't there a greater interest in protecting people with disabilities then protecting general competition meet shouldn't we look at what the underlying goal of congress is in determining what the test is perhaps your honor but i think the nor court made clear that any a valuation needs to weigh appropriately the value and the purpose of the of the st amendment that the bill of rights constrains what congress can do and so it's within that context that those values have to had a protected facility and they believe that that protected facility was in some violation of some wardens they have a couple of options one they could take direct action they could refuse a permit send a notice a violation something like that opportunity to get direction from the court to ensure that their view of there are good and says appropriate and that all of the parties weights are pro interests are appropriately weighed and get direction before taking  f h a for doing nothing more than seeking court direction that leaves the municipality in a pretty significant bind to either take on that burden a significant burden or ignoring and not enforcing its own ordinances well certainly no victories after the appeal of the directors decision on inpatient or outpatient why was why were the appeals not baseless in view of the overwhelming last with to be baseless your honor the courts the supreme court has been very clear that to be baseless means that the purpose of the litigation is not the stated purpose of the litigation but an of process that's what baseless is not that the arguments are not strong not that the arguments don't even prevail in the end but that the purpose of the litigation is an abuse of process that by engaging in that process you somehow for our clients did prevented them from taking any action we never did any direct action there was nothing we did that foreclosed their purchase of the property their development of the property well or the use well wait a minute if they're trying to buy the property for a specific purpose and you make it so they can't tell whether they will be able to pursue that purpose or engage in that purpose that delays them in purchasing the property and left there very reckless they didn't plea that they didn't plead that they were not able to purchase that they just generally plead that there was to lie but beyond that your honor clarification value was valuable to both of and to them what we were seeking to do was obtain clear directions from the courts they would have been in an equally perilous position if they had purchased it and not had that clarification so i would say that the that the process that we went through had a benefit to all parties well you could've accepted defeat and not appealed and they'd have clarification and so would you right yes your honor but there were there were interests and values that needed to be vetted for a number of reasons the value of which the supreme court has recognized in terms of litigation even unsuccessful litigation it aired out it allowed us an opportunity to to air the various issues that were out there none of which by the way are the issue that they say was being litigated let me turn to that point let me ask you one question source just so that i have my bearings as far as the permitted uses under the planned unit development and then there are thirty plus the th one is the one that's issue at issue that language but if they would have said no addiction treatment centers period where would we be without that would be a different fact situation where would it be but where would the lobby on the would you say that you could do that and therefore goodbye to the addiction there a piece on i don't know your honor that i am familiar enough with all of the case law regarding  eight that i could to answer that question definitively what i can say however well if you can't say that you could do that then i'm wondering about the merits of your appeal well your honor we it the premise of their argument here is based on a fallacy they say to this court that what we were seeking an illegal result because our position was this could be used for a medical facility it could be used for residential facility but it could not be used for addictive treatment we never made that argument they don't plead that and it is not in the attachments to their exhibit what we please what we argued your honor is that given the history of the of how the two thousand and nine amendment came about because given how historically the role of the lodge was in the in the community that there were and that the language of the p u d was unclear and ambiguous some direction from the courts was necessary that's what we argued we'd never made the argument that they that they anchor their entire illegality proposition on this court needs to recognize as well that there is a clear distinction between what we did here and other cases in which the courts have found that governmental entities were in violation of the eighty a in the f h a we never took any direct action against them we never took any action which prohibited them from doing anything or otherwise compelled activity including we never saw any kind of court injunction using the court by way of coercive behavior all we did was seek direction of the courts i suggest to you that if there is any case it which is entitle to the right to petition  immunity protection it is a case in which no compulsory issue is compulsory efforts are being made but that the but that the tribunals relief is being sought so as to give all parties direction in the case i think that is a distinctly different thing than situations in which the state or the municipality uses compulsory action to to sort of enforce or compel some sort of activity i would also argue yarn or that their argument on the on the illegal intent is directly contrary to the heart of the nor case and it's progeny which is to say nor found that if there was a wrongful or illegal intent that that wrongful purpose could not transform an otherwise lawful activity into a violation so that is so even if there had been a wrongful a tent which has not been substantiated by the pleadings in this case that that should not and cannot transform an otherwise protected activity which was merely seeking direction for a p u d for the interpretation of a d into some sort of unlawful action and protected by the st amendment we did not they did not plead nor show that the that we filed this litigation as an abuse of process nothing in their pleading suggests that it was an abuse of process we filed it for the purposes for which it was stated which was to say which was to obtain the the direction and the clarification needed for the parties we also there was also no sham here your honor we didn't there was no series of frivolous litigation that was intended to prevent them from access to the courts there and there was good morning your honor as i have very limited time i did want to address one of the issues that came up in oral argument from the other side which is this statement that what we sought was a result that was plainly illegal this ties in somewhat argument i want to hit it a little bit more head on they have said repeatedly that we would not have opposed any use other than the treatment center and it's simply as miss milly pointed out it's not supported by the record but more than that it's belied by the record if you look at the june th th notice from rachel ois to the community she mentioned substance abuse treatment facility but she doesn't just mention a substance abuse treatment facility she mentions health and wellness she me nutrition she mentions weight management so the assertion which is the fundamental premise of their discrimination claim that we wouldn't oppose any other facility that would have the similar type of uses is just simply unsupported i also it presents a unique set of circumstances that has not been addressed by the places that they are citing they cite to immerse in response to qualified immunity they see certify to bangor and cinnamon hills which are enforcement actions they don't apply to these facts they also apply to their own statements in the b o c proceeding the plaintiff's opinion of whether this is illegal or not is not established clearly established lore law this court does and they've cited no case from the th circuit holding you can take two minutes and thirty seconds to respond but i'll hold you to it because we want to be fair thank you i'd like to focus on one point on that ms make lee made which was she focused on the position clause in her st amendment concern for chilling effect government action that chills individual rights and individual rights and a concern for a chilling effect have to my knowledge never been a factor in a case where a government itself is acting that we in fact it might well  argued that our anti discrimination laws themselves exist to chill governments for me gauging in discriminatory conduct and so the notion that a municipality or local government should be able to just be free from liability for undertaking and enforcement action and there's not really a difference between an enforcement action that's an eviction and an enforcement action that's trying to enforce the p d the notion that they should be free from liability  quoted the district manager their purpose was to keep this facility out of their community it was and the notion that it was about health and wellness or weight loss is just not true the barrage of emails that the community sent before this decision was made to appeal the district or the directors interpretation it was because of the substance abuse piece of this and so the circumstantial evidence is there and we respectfully request that your versa district court thank you thank you the case is submitted thank you for your helpful arguments reach the halfway point three of six cases and at this point we're going to take a ten minute ten minute break so everyone can relax in the hallway and we'll see