right our second case for this morning is that he is jones against michelle markowitz talken bush and we will begin when you're ready i see you're still taking some things out with miss kraft morning i suppose we should welcome you back for this case since it has reached this court before in different incarnations yes yes thank you good morning they please the court and mischief that can be wreaked upon the public when the rule of three is in the wrong hands it gives governmental afters actually a recipe for hous disagree with or if they have competing speech and also demonstrates to them how they can remove political opposition from local governments like the defendants in this instance they were seeking to do two things one they wanted to block a citizen initiated titian with in excess of twenty one hundred the fish and signatures oh who who we're petition signers who wanted to place a term limits question on the ballot for the november eighth election the other thing they sought to do was specifically target the one declared candidate who was seeking to run against the incumbent mayor took to what extent was there a problem here with the wording in this term limit referendum i  exalt point of that rollover whatever you want to call it is to avoid this clogging up the ballot process that the city council seems to have been engaged in well it is true that the election code contemplates that when citizens are circulating a petition they don't have to specify a particular election if they don't specify it if they are there for a lot or for the first election they try to get in they can go and then they were on to the next one but these people as i understand this record didn't do that so right why we should make a grand statement about the the referendum process if there was a readily available way to avoid this tactic is troubling to me it's only the holdover clause is only effective efficient or is are not seeking relief related to a specific election here what's he's seeking now i mean all of these elections are over at this moment well there's two different classifications atlantis we have the plane british and  fs and we have mr jones and they're both seeking damages as well is not monetary relief the reason we are before you today is that the district court held there at the plaintiffs were not entitle to damages because the city was certainly can imagine an injunction i can imagine you know ordering a new election and any number of forms of of equitable relief but a dollar sign that would be an issue for a trier of fact if the case went before that up do you need to be some standard so you know even in tort cases you know their actual damages and their pain suffering damages and juries will take into account the degree of the harm and so on just because it's you know non monetary at some signers of effective relief but also barred mr johns from exercising his first amendment rights here should be a compensable injury that they are entitled to compensation for that is  compensable injury well it would be i mean the ability to have access to the ballot and to run for office so for mr jones would it be the salary he didn't get because he didn't become mayor because he was unable to run it could be but that would predict that he not only did he win but that he would have just you have to multiply times you know the probability that he would win i suppose right exactly but that they had under scores why we really should have been entitle to put a bill relief at some stage of this process because if we were entitled to be on the ballot even during the pendency of the consideration of the underlying claims it would have been botched easier to effectuate ultimate relief in the us there would have been no harm to put the questions on the ballot and to allow mr johns to be on the ballot and to allow the election to occur because even later if it was ruled to be an improper action the court could have suppressed the vote results it's you can it's very hard to understand the bell afterwards the a lot of the reason why i went before the district court four different times on emergency motions within three and a half months in addition to coming up on  nominal damages case perhaps but it still would be compensable with respect though dubai nights are nominal damages enough to keep the case and life from his well i don't believe that's the only thing keeping this case alive i believe that yes it's true it might be moot as part first putting the question on the november election ballot or the february last year i think so that's that's a reasonable concession maybe it would be helpful if you divided your response by the the rule of three is unconstitutional when applied in this fashion so i mean and i guess i'm thinking we have to go back to the so the question i don't see why the rule of three in the abstract is a problem if as illinois law appears to do it provides a way of defeating a city council that is it seems bound and determined to fill up the ballot with three questions of whether advisory or binding that's what this city council did for a couple of ballots worth right right exactly but they didn't ask for the roll over you know because november a because that frankly would have been ineffectual  instance because we were seeking to accomplish something prior to the election the city demonstrated that it was very easy for them to call a special meeting with info within two days in the morning that we were circulating a petition and have three city council meetings and know it's already put pieces already used up the november ballot but the february ballot would have been in time for the april lection or at least it looks to me like it would have been in time for the april lection so it seems that you had a couple of weeks you know three weeks or so in which to to get in front of the city council in the queue because if you would ask for either the november sixth the november and sixteen election or the next available lection your and your referendum would have been first for the february twenty seventh ballot but not necessarily now when you have a governmental actor that can then just in on forty eight hours call and know that it didn't  though it didn't till august twenty fifth so i mean maybe i'm not understanding how this works but they put three questions on the november two thousand and sixteen ballot on june twenty third ok so november sixteen is full you submit your referendum petition august the eighth there are three weeks ago by nearly before they put questions on the february twenty seventh ballot i don't know why under illinois law your august eighth submission isn't first in line for the next available ballots there were twenty seven if you would ask for the next available ballot well if they have quite we were we had no indication that our filing on august eighth was going to be treated as subjected to the rule of three they didn't give us the mandatory notice and i know this court considered that issue before and really did not find that argument compelling but i believe we had a right to rely on the fact that the city was required to give a notice to us under the statute th were not going to serve our sort of fire question under the rule of three and we relied on them performing that when they didn't perform that function we had reason to believe that perhaps they were going to repeal one of their original three they i mean we had ability to rely on the fact that they  took the action didn't give us notice that they were taking us off the ballot we didn't find out that we were off the ballot until september sixth and i don't understand up by which time it's too late because february twenty seventh is full well not yet exactly exactly but but it's the problem with the rule of three because in this case it is true that they within two days came and called meetings to put three questions on the ballot but they quite easily could have put thirty questions on the ballot clock on the ballot for the next ten elections and we believe that's what would happen here it's pretty clear viewing the fact pattern as a whole that they were out to accomplish their exact objective here and that's what they did well let me switch over since you've mentioned that to although they do exist can you show the necessary lack of rationality i mean that's a bare minimum there may be an atomised requirement also but at least there has to be no rational basis yes i can when you look at the face of the pleadings which is really the issue before the court did jones adequately plead an equal protection class of one claim there were two required elements that even the different factions of this court that have arisen under the marcelle case of either way under either way we see it as fighting here what happened is we are saying that the collective action of placing three referenda on the ballot targeting mr jones over two election the rational well first of all we think they didn't satisfy the fact that we were claiming the governmental action was actually putting on of the three referenda second they presented no arguments whatsoever on why the other two referenda they submitted were rational their response brief is wholly devoid of any argument with respect to that and third even if you goal we've been if you buy the argument there was sufficient for them to break this rationality related to one of the four complain upon ax that the plaintiffs brought it silly it's silly to think that their term limit was construed as a serious term and that when there articulated objective was to prevent long french politicians from serving in office again what they did is they said if you've served it for alderman for four consecutive terms you can't run for mayor and if you've served as mayor for four consecutive terms you cannot run for mayor what they did not say was if you've held any office in the city of calumet city for four terms not and then ran for alderman for three terms and then ran for mayor again for three terms all successfully and because those terms were not consecutive they can run for mayor again so very referendum didn't the only person if they had it barred from running from office was mr jones if they but they didn't do it the way that i'm suggesting would have been a legitimate exercise of that because then in fact it would have barred the incumbent mayor which is what they did not want to do ok thank you thank you murphy please the court i think your honor because this is a tale of two referenda and might be easier in terms of my presentation to kind of segregate and respond to the court's questions regarding timing much of the timing has already been laid out in  the two understand why this constitutional challenge to a statute should should be rejected by this court in this instance it's its we need a kind of follow through on what you're honored started to talk about in terms of the statutory structure and hold over clause in page two of our brief you will see the question of the petition plaintiff's in its entir and the underlying aspect of the question is the key to the disposition of the petition plaintiff's case the referendum that didn't make it on the ballot three sections of the election code interplay section twenty eight one as the general requirement of referenda and what we call the rule of three section twenty eight dash two says that if your petition is election specific it may not be presented at any other election section twenty eight five which is what opinion one refer to as the holdover clause or a failsafe provides in essence that if you are a group of petitioners and you are not at election specific in your petition meaning either at the november second election or the following election you have what i'm going to refer to as first lien so what prevents this scenario than this craft after was talking about of the city council passing  whatever passes you know in an ordinance or or an order with thirty ballot referenda so for the next ten elections the ballots corporate resolution by the government or petition section twenty eight five says that if you are a petition and you are blocked out from election one because of the rule of three even if the next elections are clogged by by questions you have first lien at the following the letter you read the statute simply to override after that first election the sequence that the city council has created that is correct now if we can return to the sequence of events here the petitioners began to circulate this election specific petition on middle of june i think it was june eighteenth june twenty three city council tax opinion one holds that petition plaintiffs and jones had noticed as of that date because it was an actionable public body  course jones was at the meeting so insofar as the laws concerned the petition plaintiffs had notice as of june twenty three that they face being blocked at the november election they had two options at the well as basically they were blocked the council puts three questions on the november sixth twenty sixteen ballot that is correct so they had they could have they had two choices at the front end they could have chosen to cast their petition to protect themselves against that possibility secondly essentially revise their petition have been collecting signatures for a week or so with the november twenty sixth team date that they would have to start over again right with an open ended its mission and yet with up with a relaxed petition will call up to that one specific petition and they had six weeks or so to the extent there is a constitutional issue that was presented could have been presented this is not the case first because as a matter of law the statute prevents the shenanigans that you just mentioned and second they could have either at the beginning or once they knew there was a block for november they could have sure the problem and gotten on that petition on the february ballot please recall the sequence of the election of the november sixteen was the presidential course in a number of municipalities such as  differently at the front end or cure the problem during that six weeks going to all of their petition would have been on the feb twenty seventh teen primary ballot when you said it's a democratic premise is february  calumet city does because they've run democrat republican that sort of thing you have the right under the election code not to declare that i'm a democrat or republican and simply vote so you just don't referendum so it's a wide open election to the entire electorate had they done that and had the voters approved the incumbent mayor what happened knocked up we would have had in effect  limit it would have been stricter term limit as to her now can i ask you one final question that the condition plaintiffs it seems that the district court misread the complaint to the extent of not realizing that the petition the court finds that the statute as applied in this case is constitutional that ends count one and there's no occasion to go to damages to respond to  sikes i think it's memphis versus the church the illinois supreme court or the u s supreme court case which is probably thirty years old holds that you follow ordinary tort principles we ever got to a damage thing there's no damages here rational basis for boxing him in and singling him out the way these referenda did and whether you say something done out of pure animists is by definition something without a rational basis or when you tease out rational basis anatomists you know i i'm not sure it's necessary to take sides on the various theories and tell marcel why doesn't jones satisfy at the pleading requirements who were not further along in this case but the pleading requirements for glass of wine for several reasons your honor first it is undisputed in the record that the record the referendum which passed mccall the city  the legal answer i believe i believe to that question is by application of the rational basis standard and i should note that since our briefing this court with two members of this panel around with you look at you look at the law itself to determine the rationality of the classification and then you know you can do that with the law itself and you know some laws apply to a class of one and the there constitutionally on our legislature has a habit of passing laws that are applicable only to cities in the state of illinois with populations of more than five hundred thousand which is in fact chicago it's a long winded way of chicago and so i'm not even saying that if it is one person it is or is not valid but there is this happens in legislation and i believe mr jones's argument is that that's exactly what happened to him they figured out exactly what it would take is not the motives of the individual legislature tours who adapted the measure it's whether a reasonable legislature could conclude that this was a reasonable means of dealing with the problem right and so  reasonable legislature conclude that thaddeus jones should not be able to run for mayor against michelle markowitz quite i mean that that's the question yes except a reasonable going forward that they were never asked the question that he wanted them to answer which is if they like term limits that much maybe they'd like a three term limit not a four charm and that field is wide open to future petitioners there's nothing to prevent a hate group of petitioners to circulate a new petition saying we want to be a two term limit or we want no term limit in effect your honor we're dealing with direct democracy versus indirect democracy in direct as this legislation direct is referendum there is nothing to prevent to prevent a group of petitioners to put on the ballot a question eliminating what was passed altogether really that's not for mr you know that would be miscible that would be targeted at individual not of general applicant right and so that's why i'm wondering reading the complaint in the light that we're required to read complaints hasn't he alleged that what happened to him was the equivalent of that no because of that the nature of the question itself the effect of it is to bar generally speaking all long term incumbents in calumet city going forward from running for mayor that is a that is a policy choice that the electorate is entitle to make no different than as we mentioned in our opening in our brief there's only one reason the only constitution was amended to allow for recall of sitting governors everybody was sick it will go it but that doesn't make the constitutional amendment run fuck off all of the federal constitution is it rational for the voters to have a recall mechanism for the govern and given the extremely high hurdle the plaintiff has to climb in that situation the answer is yes it's rational the cases that we cite are primarily state court cases it's very unusual i'd very few cases i noticed that had federal constitutional review of these questions why it's primarily a matter of state policy i should mention as a housekeeping matter and mr jones has challenge the referendum in would just like to follow up on three things the first thing would be some of the issues related to the pinpointing of jones the second follow up on the issue of nominal damages and then third i wanted to also just the issue with respect to the the holdings cause and why it's not an effective relief in this instance first of all is exactly correct the questions that you were just asking hounslow about is it proper to target mr jones in this fashion the three referenda on the ballot the one related to the very near or pinpointed term limits the one related to the ability to municipal retirement fund pension and a general assembly pension at the same time and the third question with respect to shed shell an elected city official be able to hold a second compensated office at the same time were so narrowly tailored to him the receipt is five the requirements to establish the equal protection claims second with respect to nominal damages now no damages are enough to keep a case alive and twenty eight dish five just says where you go to the next election says the next available election and there's nothing in that rule that says you cannot twice block a government can block twice the same petitions from putting a subsequent question on specific referendum there was a right to it without the time specific i'm talking about a term limit i don't know what a random or to their liking yeah i don't know if they will try to pursue that in the future but the mere fact that they were not able to get the relief  or election which would have had a far greater voter turnout than the next primary election would have him that demonstrates the very flaw in the rule of three as applied in this instance which is why we should prevail m