all right so my question is where did you advise of the other side that you were going to seek leave to use exhibits today this morning yesterday and where  all well i will then use this moment and take this opportunity to advise both sides that today during oral arguments the arguments must be confined to only matters that were presented to the trial court before the f order neither party can use exhibits or make arguments about amended complaints that were never filed or anything after the court's decision i hope that's clear so we don't want any arguments that were not presented in the briefs that were not presented to the trial court so if there's anything that either one of you are planning to argue that was not before the trial court you may not do so now full twenty four what would what situation trying to avoid is not being to argue a constitutional damage claim if i if we let the damned if we the proposal is just  constitutional damage claim and waive and abandon the cause for full taking argument whoever if the court finds a complaint does that state a cost to szell damage claim i want to argue today a constitutional taking you make the same motion again you think and when you make motions for clarification there are only good if you could show us what confused you and you argue that need clarification to be very careful with those lines because we do not like this you're getting to the point where you make the same motions over and over and over thank you and good then i will  discussed obviously saban explicitly rejected the public duty rule you may recall the court's opinion say been discussing the michigan rule the michigan rule is the public  under the guise of relatives this is in the record and this is critical on the constitutional damage point most of the storm water is coming not from advocate a sewer system ok i'm sorry i mean i've heard so it's never been applied and again please saban has explicit language rejecting the mission which the public to do so in the first instance that's one of the other arguments again in months and when the when the court said interpret article three the prefatory clause exception otherwise provided in this article well i have i have i was all right yet i have to still eleven years of litigation down to seventy three by five cards yet but in all candor i don't think i require the what i'd like to do with your leave to spend just a couple of minutes discussing the public through the rule and specifically the issue of retroactivity or non retroactivity a couple of minutes on the take ins component and perhaps a couple of minutes just responding to some observations that mr apostle made that i think may have been inaccurate or even check that check off the list all right needless to say i think judge paul got this right she spent more time on this case that will probably all over other matters com and ultimately at the end of the day twenty fifty we received a very well reasoned and awful order that articulated with specificity why the repeal of the public to the rule should not be applied retroactively to this matter and to that point it's i think the courts know that's the court knows that of course you read the briefs and research attorneys have read the briefs they argue at great length but but judge all specifically file then the nature of the case the the the procedural history of it if you will the extensive upon the public duty rule since day one for forty years i don't think anyone i don't think this court could say that anyone could foresee the average patient of the public to the rule and last but not least in in this case judge and judge all due to that judge paul also found that it would be be an injustice to the local public entities to apply it retroactive retroactively up to one step further would be an injustice to us to your point one one thing i want to add to this to this calculus you can't turn a blind eye to the fact and i think that my colleagues for possible sides to this you can't turn a blind eye to the fact that but but your honor i don't know if we disagree or or not or we're just in gauging scholarly debate but i like to think that tacitly you know that these things were designed and built with a view toward ameliorating a hardship in the community not by the same token as we speak now unfortunately i'm sure there are people in the community that are experiencing today right now some some degree of of of flooding this is not intended and i'm here to tell you for a variety of so it's as you say so why wouldn't again one of the things on my checklist so to speak i did i respectfully disagree with my colleague the public duty rule for want of better words has historically been raised by this court both  and why and how are we reviewing it what is our stance will review again your honor i apologize for being redundant but it's as judge judge paul cited the procedural history of the case the local public entities continued reliance for five or six years on the on the public on the public duty rule as a basis for disposition the fact that judge paul did this but did did dismiss the case five or six times the law library than i am i'm i'm i'm in the i'm in the heron act and alexander and cicero versus metropolitan water and river city versus metropolitan water that's that's my daily wick and that's putting part of the library i district head and we were in the throes of briefing an arguing for real real for a language judge all asked us to also brief and argue the implications of the public duty rule as far as respects councils taking component that was performed we were on the on the well in my opinion we were on the eve of friel for a language when eight months later along comes colin and we have to start we have to go back just to square one and quite frankly if if called upon i think i think my colleague just caught the court by by surprise he he presented to sidle versus miller and said the general presumption is is infinitely more helpful to this court than to saddle versus versus miller let's the third the other just the unjust burden if that's that's it as i said just th duration of this litigation and the number of times that this position was made and in favor of the of the local public entities earlier i may be a few minutes ago i also alluded to the to a burden so to speak that that burden speaks for itself it's an uninsured loss it's if if if if the if the plaintiffs in that neighborhood were were were to recover that's an uninsured loss to us no there was no there was no insurance in place at that time stated that the public duty rule did apply consistently and they did so usually i'm sorry colin should not be applied retroactively for the reasons i articulated and more importantly for the reasons that  are metropolitan water application is to the community as a whole all of the people who pay our salaries not to or not to us a segment or a local high stereo what have you that's the that's the premise of the of the of minute to respond to something i recall from counsel's reply brief and i don't know that it's dispositive i don't think it's dispositive i still want to just briefly respond to it and that's this it's council suggestion that  this council suggestion that the user charges that we collect be used to fund storm water projects and i just want to tell you that that's impermissible the user charges are required by the u cost of operating maintaining and replacing the treatment works that is what's required to do to keep the plants in this state of good repair there's absolutely no authority to use those funds specifically this i think ron is have addressed that a little bit with respect to the public duty rules just to crystallize those factors first as whether there's been a change in the law we know that there has publicly role was a polished by coleman and it previously existed for public improvements for sewer lines and now and alexander in the time cicero case so that there is uncontroversial my opinion that there was a new rule the second is that whether the history and purpose of the new rule its operation would be advanced or hampered by the nine retroactive application and this case is so unique that it really goes either way because the because main township has been some suggestion that the alkies own the basins they don't want to it's played in complaint that they don't and i'll direct you to paragraphs one twenty point one through one twenty six in the property in maine township getting even further mean township doesn't issue permits in this case it's not alleged that meantime ship was a was a permit issue or to advocate or to get walt for the development of this property those were allegations directed against park ridge and against the district and against the county i believe the main township was not a permit or in this case  down into the main drain so they seem to have abandoned the reply brief that main township has ownership interest in the main system rather main township have an interest in just grades the sewers that run from the streets into the main system engineers do that it's alleged that mean township in fact has not had any you know the paragraph site but it's a ledge just in the complain issued by the defendants it's on other defendants property and and other than main township contributing to studies to try to figure out how to solve this problem in township s had no control over the solutions or  history to go on with their significance for the public to go in and counsel for plaintiffs reliance on on a case from the eighteen hundreds ignores the more recent cases that specifically applied the public to drill to these flooding type cases so clearly  be had an expectation that it did apply it applied in two thousand and eight when this incident happened and that's kind of that suit really important issue to focus on what procedurally what happened in this case you know plaintiff has been taking advantage kitchen and in nickels saving is still good law secondly judge talked with regards issue of what is the law in this area i want this argument in the public to the rule back