longer than they are normally for an old argument so i start thinking about it i think despite all these arguments and issues at its heart this is an equal protection case that design involve a suspect or protect class and therefore the burden is on the plaintiffs to make to negate any conceivable rational basis for the city's action and in this case the district court imposed that burden on the city determine the city did not meet that burden appreciate the plaintiff's argument is that this is not in this case the order from the district court was not an injunction at all but it's an order from the district court requiring certain actions from the city i mean that's the very different definition of an injunction and i mean i'm just quite frankly i don't see any other way to interpret that order it's an order telling certain actions and of course it's been a long story you call it a kin to a preliminary injunction mum of this distinction matters but if anything we what else is left to be done in the district court why why would it be a preliminary as opposed in your view to a permanent injunction at the end of  retaining the power in that injunction to review some of the city's ongoing actions it's just a question of damages that that's the issue that's left and so in that sense i think referring to it as a preliminary injunction was factors from the earlier over that opinion and those are one in a way there was this kind of clear standard that applied to everyone so that any deviation from that standard gave a clear indication of  differential treatment of the of the people within the community and that's what raises this equal protections issue whereas in inquests it was a hiring decision and the supreme court recognized in that  case there's a lot of kind of discretionary subjective factors that are going to go into a hiring decision as opposed to a clear zoning standard a clear requirement in that case in the way it was that fifteen foot easement was requested from everybody drawn by the enclosed opinion is public employment and this is not public employment the plaintiffs were not asking to be hired directly as employees of the city of for sure but i think if you had to put it on a scale of one of those it's much closer to the or or different from the latitude that a city has to decide from whom to purchase vehicles or to decide with whom to contract for something like let's say a cleaning services yes i think it's much more came to that not unlike a hiring decision but of those two it's purchasing services so be more like the cleaning services they're not purchasing any actual goods like vehicles  and of course it's in certain circumstances there are state law requirements for competitive bidding and all that but in this particular context hiring a towing company to perform the service of non consent toes there is no state statute that requires competitive bidding and that seems to be the basis of the complaint in this case that because there was no process upfront no competitive bidding  no list of criteria at the front end that this is an arbitrary decision because if nothing by which we can against which we can judge it and therefore it is an equal protection violation and there's nothing i've seen yet in the equal protection i don't claim to be a constitutional scholar but that that requires every action every purchase of the vehicle every purchase of a janitorial service if the sheriff's department ran out of  police department ran out of paper before their next shipment came and then they had to go to one of the nearby office supply store so it doesn't have to be some kind of checklist before they make that decision because clearly someone is giving the benefit of a government purchase in that case and so if there's no checklist they go down first under the order in this case it seems to be an equal protection violation but so you have that discretionary versus a clear standard i think is one of the distinguishing factors that sets from the a case and the other is the government acting as a regulator or heads a consumer proprietor and of course you know if it was a regulation with zoning that applied equally to everyone here there's no regulation there's no license singer or fee requirement that the city is inactive that says  it still doesn't change that into a regulation by the city that the city is not requiring these towing companies to likes that pay a tax apply for a permit and as this court recognized that cardinal casey the city of bedford in that case of course it was not an equal protection claim it was interstate commerce klein but the court recognized that mere fact that the owner of the vehicle was the one who ended up paying for the tow did not somehow remove this from kind of the city being the consumer of the towing services because it was the city you who needs the vehicles off the roads of city you call the towing companies to get the vehicles off and in that sense it was a service for the city although they didn't alternately pay for it and so i think that's the second example from the inquest in the  distinctions that although there may not be a clear line on there this case is much more on the inquest side than on the oic side this city was acting as a proprietor or a consumer was just trying to carry out daly city business it and so i think that the rationale inquest in the case aside in the brief following it that this indicates that there's not even a viable class of wine claim in this case now briefly i would like to touch on the rational basis i mentioned in the opening obviously there were more raised in the summary judgment proceedings below but the burden was on the plaintiffs to negate a rational basis and forward and establish an actual in fact at the time the decision was made rational basis not everyone may agree with that but that's the law and in this case this record imposed the burden on the city complain clearly there are some geographical limits and you know topographical concerns i think that could serve as a rational basis this is one of them the plaintiff had the burden to negate that in the reply a believe the only evidence is that  there's no overpass they're not actually crossing the highway they're only crossing over it but i don't think that negates the rational basis that it's still a burden on the citizens of the sit go retrieve their vehicles to potentially cross it's busy highway even though there's an overpass of still going to traffic build up all that care and i think that's a rational basis and even if there's fifty two truck companies out there that could do this job for the city to say well we only want to pick two because you've got to oversee these people you've got to deal with them and talk to them and take their phone calls it's just ease of administration dealing with a small number of these is a much less a burden on circuit case that that side an equal protection claim on that very basis that there is more to the pinion the just that that was one of the factors that that was the rational basis for government to limit with whom it was doing business the administrative  equitable remedies were in a court order somebody to do something yes or so and essentially or not to do something for me to do something or not to do or not to do something yes and i mean i just you know for us we believe that under the swa versus charlotte mecklenburg case the court ration that once a right of violation have been shown the scope of the district court's equitable powers to remedy past wrongs is broad for breath and flexibility are inherent in equitable remedies that's a that's a that's a major desegregation case yes you know when that's and that's kind of a different different field of law may need to make maybe there are specific language you can you can pluck from but but i mean essentially what we believe what we feel is that the court was the court looked at the facts determined that the city of force or came up with this criteria that they were necessarily following and essentially ordered the city to comply with their own policies and which included in clues in of and integrity ultimately so that's why we think it's not injunctive relief because of the fact that essentially the court is saying that you have these policies or you created these policies why not follow furthermore we didn't there's  the court also rationed there the court also ruled that ultimately the city of force sure can come up with their own reasons for for the towing rotation which may or may not even include the plane so essentially ultimately they they gave them their out if you will which may include whatever requirements they determined to create this total taishan so we don't believe that it was so when when if ever can the city challenge or complain of what the district court did or said when i mean i think it be on a final judgment we were at the final stages like into a final judgment at which time they could have appealed the entire issue to the relief that's been ordered it was immediate right it was immediate yes so they have to start doing or not doing whatever it is the court served but play but they have no way of of challenging that until well yes simply they i mean like i said i think that our belief is that they were the ruling would require them to follow their own rules and procedures essentially there was a number of issues with the rationale that was given for exclusion of the planes and therefore the judge was essentially requiring them to follow their own requirements that they had provided to so i would venture to guess this court certainly does not want to hear all discovery disputes and therefore this this type of remedy this equable remedy issued by the court is can two more or less a discovery dispute and would not be a is more similar to an order of discovery and nobody would argue that it's covered order is an injunction so clearly the court has authority to issue orders that are not that compel somebody to do something that doesn't constitute an injunction and i think that's where we live order here doesn't compel them to issue new standards it just says tell us what your standards are even if they're the same ones and use your clients but your clients on the worst but how is that in any way like a discovery and i think opposing counsel in citing that school desegregation case says it is it is an equitable remedy it's so why is it discovery as opposed to a remedy only because what was awarded was for for the  african american students and so you need to desegregate immediately and come up with new policies and procedures in order to comply with brown versus board of education here the district court specifically found that the towing companies complete didn't meet the requirements of the city of posters evaluating the city's requirements that you meet the requirements therefore they should be on the list it's a little bit different from the desegregation case in that respect and it's closer it's not a discovery of gravity but it's closer terms of what he ordered to the kind of relief you get in the discovery order compelling somebody to do something and it is certainly a preliminary injunction or even a poly judge i think the court was in within weeks would have issued a final enjoying final judgment i think they had they waited a couple of weeks we probably would have we might be the same position and they could have we've seen  court multiple times where judge hughes has refrained from entering a final order for years so i don't particularly accept  interesting cross section of equal protection law as as was far mentioned there's really only two cases in the last twenty years to talk about equal protection from the supreme court over a person so you will brook and which verses organ department of agriculture stands for the proposition that if the government treats similarly situated people differently it must have a rational basis for doing so and in my view this is an extremely low standard i mean a rational basis is almost anything and that's what the district court set is order they could have chosen almost anything and the problem in this case is that they had no basis whatsoever and this is unique even among towing cases why isn't the question i asked him why isn't a rational basis just say we don't want to you know we have some rules these controlling companies have to comply with we don't want to ensure that fifty different companies are complying with our rules are we going to pick two or three why can't a woman it to a small number just to make life easier for the city he didn't limit it to two for any particular reason there was actually a third company he considered but he just decided for whatever reason that he didn't want it so there's no even that wasn't a rational basis for the decision that was made in this case are you saying that the city has sto securely the rational basis at the time it makes the decision you know what i'm saying is in this in this case we went we took the deposition of the the police chief and we asked him every possible reason that he could have had for making the decision that he and every single one of them was discredited at some point did you were you trying to limit it to two people will know i considered it or were you trying to restrict it to ten miles no because i there's a neighboring city the city katie is four miles away but i just  them and one of the people that i selected was actually more than ten miles away did you consider the backgrounds no i didn't do any background checks every other towing case that i found and i'll be honest with you there's not a single telling case where that where we went it's it's it's a it's a it's not a great body of law for us but every other case involves clearly articulated standards and people complaining about the standards and they leave because there is almost was whether or not they were applying stand because they had the city certainly had given the some parties an ability to cure their deficiencies in their applications and we felt that we could have cured as well if we'd been given that same opportunity judge  and understand i mean you can have two people who are similarly situated in terms of their resumes i want to the same law school did the same judicial clerkships but they're going to be two unique individuals and they're not going to have the exact same employ individualized decision there's no such thing as a similarly situated employee employment context the example he gave in that case of comparing it to a police officer who can see ten people speeding and has to take one in the moment the rational the rational basis for that for the arbitrary decision of the police policeman to select one car to pull over speeding is that he can't pull over all right i mean there's even even in these cases where they that the governor has this question there's a rational reason for why the government needs discretion this is not like those cases you have plenty of time to come up with articulable standards to treat similarly situated people differently all you need to do is spend that time and actually engage in that process we're not asking them to we're not really even asking them to put us on the program and just like a judge who's didn't order them to put us on the program if they articulate standards that we didn't meet what cases they have to articulate a rational basis as opposed to you showing that there could not have been a rational basis i don't have that case your honor i do feel that if you look at the facts of the case we  disproved every rational basis that could have possibly they could have possibly enumerated for the decision that was  made i think the other question that was asked was whether or not this is more along the lines of regulatory versus purchasing authority and our position is it is actually more regulatory than than they would suggest because one of the one of the police requirements was that that his towing company is the people in the record taishan could only charge what the what the county court and also charged so he was regulating the prices he didn't just delegate he didn't just  towing the the non consent so occurred after the car owner had an opportunity to select their own leader was unable or unwilling that's not the situation here so these cases are a little more closer to regulatory than they are the simple purchasing power and i would also say that every municipality handles record taishan it differently so i don't think it would be right to make a blanket rule that anytime a rec rotation comes up there's never equal protection klicks equal protection by its nature is their personal rights their individual rights and you have to balance the rights of the individuals versus the needs of the government and i think rational review is a very fair balance because it's such a low standard if there was paying why am i not able to get my easement when they're able to get theirs i think this but equal protection should also apply to when the government selectively confers benefits to some of its citizens to the exclusion of others  purchasing power it's a whole it's there's a rational basis for why you need a low standard there but that's not exactly here where you have plenty of time plenty of resources plenty of  ability to come up with standards that can serve the public purpose if if you don't do that then you're the small town small town government is able to confer benefits on their friends and acquaintances and that's not the purpose of government to allow people to abuse the public trust by to the benefit of their friends and cronies if there's not an equal protection case here developed these criteria but then did not follow them but that is not the basis of the equal protection client that you protect your claim is that there were no criteria that's repeated throughout like five or six times at least in their connection with creation of the rotation so it's not that these criteria that were developed after the fact were not followed that is not the claims point here and you know that actually serves as a basis for discrediting the briefly and there was the argument that the city here the chief does regulate prices but that's not the equal protection claim either is not that one company is allowed to charge more than others or that the towing companies here were told they had to charge less than others that's not the basis of claim it's not an act of regulation it's an act of consuming of just running the city's day to day business and of course i think the seventh circuit is written on this issue a lot of you know what is the too broad a reading of all ag in a class of one coin would turn the federal courts into general purpose second guessers for that reason of broad areas of state action in local action and that's not the purpose of the federal courts if there's an actual constitutional