me a please the court my name is rex hanky i am here on behalf of the appellant's i would like to reserve five minutes of time for rebuttal we think the first question that the court should decide is the question of legislative privilege because that affects what evidence we have to prove our shark claim here and we obviously would like additional evidence to prove that claim so we think that's the first issue the court should resolve now on that question why do we believe that if there's only a qualified privilege  here first because we agree that the shah standard is very high but in last we can conduct discovery as to the decision makers here as to the redistricting members of the city council and so on then it think anybody else in the courtroom is not going to realize you're trying to pull a fast one so one should ask my question why is the fact that you need this evidence very badly of any of elements whatsoever when it comes you say over the course saying so well you tell me what you think why don't you persuade me that in fact it is well i think you've persuaded me your honor so i think i should move on ok doesn't your argument if it's an absolute privilege it's not relevant in all of this a qualified privilege lead is a factor the it is a big factor when it struck you that well we do we argue that what what should be here is a qualified privilege and we think that the law supports that including  legislative privilege should be qualified in gil cock the supreme court said that the speech and debate clause did not justify a absolute legislative privilege for state and local officials then went on to consider a comedy and what it said as to comedy is and i quote where important federal interests are at stake as the n as in the enforcement of federal criminal statutes com now that certainly clock is indisputable e a criminal case but the point is that the supreme court said there that where there are important federal interest at stake any legislative privilege should yield and we submit there obviously important federal interest at stake here that is whether or not these city council districts are drawn on a racial basis or not so the interest here of the federal government or the federal system suring that that doesn't happen we submit are very important interests and meet the test in galle cop the response to that by the defendants is to say well this is going to make it very hard for us to conduct business it's going to interfere with what legislators do but what the supreme court said in gill cock was the recognition of an evidentiary period privilege for state legislatures for the legislative acts will impair would impair the legitimate interests of the federal government in enforcing its criminal laws only with only speculated lip benefit to the state legislative process and so what do we have here we have a very important federal in what speculative buy the idea that you would be the posing every member of the legislature any matter that can be said to have some sort of for the that was not speculative that you would do it but the harm to which the defendants are certain is speculative that's what the supreme court said in go however the fact that they be spending all this time in the positions well i think that all this time we're not simply not arguing here that the district court has no power under its normal powers to control discovery what we're saying is that there whenever a plaintiff chooses to make them central to the case you know the case is much controlled by what plaintiff does so i'm not sure how that distinguishes your case from any other case but we don't i think it does if you look at the supreme court's decision in village of arlington heights what it says there is that the district court did not abuse its discretion and not allowing discovery of legislators there to their motive because motive wasn't an issue in that first amendment case and so there was no reason that you could go depose them about their motive motive here is central to a shockley and so that distinguishes it from other cases this is we're not arguing that in any case where there's a federal interest that there is a limited qualified legislative privilege at the very least though your argument to mean that every case challenging a sort would rise to the posing on this one i don't think that we're saying that although we think that yes in a lot of cases it would raise that i'm not so i'm not asking whether you are saying i'm asking whether that would be a natural implication of the natural necessary assault of any ruling in favor of this but we don't think so your honor because we think there's another thing that distinguishes this case from what i'll call a run of the mill case which is not only the intent issue but that we have significant evidence here of racial motivation that is it we're not just going in and saying this is an intent case we hope somewhere we could find some evidence about this and therefore let us conduct on limited discovery with the legislative body we have evidence of racial intent here racial motivation so you're limiting your request just play those who made those statements issue it's not just a fishing expedition in the hope that gee somehow somewhere we might find something we've got things and that should open the door to our conducting discovery on that issue now that that's been i would have thought that scrushy well yes we think that's one of the factors to be considered under the qualified privilege we said that in our brief that there are a number of factors to be considered in the court the actually but it certainly bears on the elements of a qualified privilege and whether we're what discovery we're entitled to conduct and it's relevant i think to the question of absolute or qualified privilege because of the concern you express the concern that you don't want to open the door and say in any case where you make a federal claim you can go and dispose anybody in the legislature about anything they may have thought or did or why they did it we understand that's way too broad not acceptable and you can see that if you don't get the discovery you lose now because we don't know what are the over this record now because we don't know what the standard is the supreme court just heard argument about a month ago in two cases that are supposed to set forth what the standard for a shock claim is so we don't know what the standard for a shock claim is until those cases are  defer submission until those cases give the so i think that i don't think the court needs to defer the legislative privilege question because i don't believe those cases involve that issue but i think the court does need to defer the summary judgment question because the supreme court maybe it doesn't change the standard we don't know what it's going to do but it's going to do something usually issued two opinions i understand so i think the net result of that is that the court probably should wait and see what happens with the u s supreme court and what standards it sets forth and then see whether those standards are compatible with what the district court did here and the evidence that we presented and i can hear you address the question whether let's assume the standard is resolved favorably to your position why why don't you still lose even under that more forgiving standard well i guess the question is precisely what that standard if i don't know what it's going to be well that you that if you have direct evidence and we can debate whether you have direct evidence here but you have direct evidence of that race was the predominant factor in the drawing  lines it doesn't matter that the shape of the district also happens to coincide with traditional redistricting prince right that you're that that would be enough and i guess that's what i'm questioning let's assume that's true you have strong evidence as to what mr ellison's motive might have been but i guess i'm having trouble tracing that up to the chain to understand why does that prove that even a majority of the city council folks but it may not be definitive proof but what we're saying is it raises a tribal issue here as to just what the motivation was especially especially when mr ellis and e mail that set out the information about racial intent was sent to the city council when it voted on this it's not like they've never heard of it or it's just something that happened back in some committee so they knew that was what the intent was in drawing the districts and mr allison is quite clear that he's moving people in and out of the district to change its racial composition it's not to as to problems for example turn it into all  the city council district i mean is that ok but just in a case though where the changes in the shape in composition of the district could be explained on race neutral traditional redistricting ground fine you have the person who drew the initial map maybe being motivated where race was the predominant motive but when it comes time to the city council folks to vote on it why would we infer that they're going to vote on it because of some illicit motive as opposed to a perfectly lawful motive that is also fully supported by the changes that were made and summary judgment all inference are supposed to be in our favor also i think that your question doesn't include the role of the city council president or wesson it was his district that was being redistricted he was the most senior person at the city council he appointed mr allison to the redistricting commission he said after the redistricting that the whole point of the way it was in those two city council districts well yeah but he says it was me against twelve you know i was basically me against the world that you know i had to stand against all of my colleagues who weren't on board with my agenda that's the least the implication from the remark he made right oh i don't think that implication is there but even if it is if you know which remark i'm referring to i only know the remarks mr wesson made after the redistrict right as i'm talking about it in that same speech ok i don't think that says that he did it but even if he did realistically who has that who has the most state sway over their district the income people who are straight those kind of things find you have what you want as long as you let me have what i want in my city council district so that at least is an inference here that through his appointee mr ellison who pursued a racial what gender for him for mr wesson his district and he's the head of the city council that that's what happened that it was race with the predominant reason for the drawing of the boundaries of why the other twelve members who were there were the thirteen to vote if i remember right that the other twelve numbers that they were they too were motivated by race i think it  totally speculative in a case where the district is explainable on grounds other than race i'm with you in a situation where you've got a district where you just you know because of all the circumstantial evidence you say basically if race wasn't a predominant factor here there's no other way to explain this but in a case where it is explainable on nonracial grounds i don't think you can just speculate assume that well everybody must of had a motive that would violate the law why would you do that i think what you're then saying is if after the fact  the the defendant here can come up with something and saying oh well that's consistent with the additional district being redistricting criteria you lose even though you have evidence of racial motivation also i would submit that this isn't all consistent with traditional redistricting criteria if you look at palms a council district ten was underpopulated it needed if it also had the effect of uniting those two or that the putting palms in all one council district so it's not something where it's clear that was the criteri that that's what was being done when what is being done is contrary to some redistricting criteria and is said to be based on race also the case or at least one of the cases in the supreme court the thune with whom hill case involves precisely this question what do you have to prove the show racial predominance if you've got a minute left if there's evidence of traditional and please the court robin johansen on behalf of the city of los angeles defendant in the case mr hankies began with a legislative privilege i'm happy to go there first but i really think that the appropriate place  is to start with the standard and what this court should look at in deciding whether summary judgment was properly granted by the district court and with that the plaintiffs are suggesting that the cases that are currently before the united states supreme court will somehow shed light on this case and respectfully that that's not going to happen because what happened here is so very different from what's going on in those cases and in every other shark case with one exception and that scrim r t to easily versus cromartie two because that's the only case in which you don't have the state virtually conceding that race was a predominant factor much less the predominant factor what you've got in those cases particularly the virgin ia the north carolina cases are thresholds set by the state of african american citizen voting age population well low which they would not fall that was that on at least the record that we have here at summary judgment my goodness a reasonable fact finder could certainly conclude that a mr ellison's mind race was the predominant factor in explaining both the move of palms out of the district and the bringing of the folks from seven who did an initial draft that was changed many many times particularly you know with respect to council district ten so to say that he changed many many times when well when it first went to the commission the commission considered amendments and made amendments to council district ten and then when it went to the city council the city council actually reduced the african american citizen voting age population down to forty point one percent so she say here that you have evidence that mr l is very silent from which ever they wor presented that was sort of a start and why didn't that drive everything else i mean you could sort of haggle here on the margins here and there but  disagree that there is proof that that was what was mr olson's intent but for purposes of summary judgment one must infer that so starting with that why didn't he just say that i said i'm sorry prevail so he tainted that process taint your honor is not the standard here taint is unexplainable on grounds other than race and as the questioning from judge watford i  think reveals these districts are explainable at every point this district is explainable every single change my it might might be but what were some measures went and were asking what could jury fin to control that it just of you know that's what's put in front of the body and then you know it's hard for the body that comes from a completely different what they do is they can sort of they can pare things down they can they can nickel and dime on the edges but you states supreme court first the united states supreme court says that there is a presumption a presumption that must be recognized and overcome of good faith on the part of the legislature in this case the presumption of any doubts good faith i mean they presumption it's a presumption that race was not the predominant motivator here that's what it has to do with it and that's miller versus johnson and all the other cases but what what if they wanted to come up with something completely different they would have to violate their their chief redistricting criterion which was to keep as many of these neighborhoods whole as they could and they wanted to do that by they show they wanted to do that by voting that they were going to keep two thirds of the neighborhood councils whole they were going to do as much as they could to keep the renaming communities whole which are smaller subs smaller subset and in this case that would be the korea town renaming community which they did people in central council district ten they couldn't just upset this map because council district ten sits at the center of the map it's not somewhere off you know in the valley or on the periphery of the city it's right there in the middle of the city so it's soon as you try to change everything and the traditional redistricting criterion that he followed and all the rest of the commission and the council district found was to try to keep as much of the district intact from the previous redistricting so you i mean they say he voted for racial reasons well that's what they say that's why they claim and and and you have conceded that there is evidence that would support that kind of finding by the jury so we start by having a different premise by having all well just assume that he was doing for these objective reasons you have to start by saying he did it for these improper uses so now now now take it from there and you take it from there to w the other three plus him make a majority and that and that that that you know so you get this decision that this bump up the reasons then you get up and then becomes very difficult to change after that because of the fact everybody else commission and then the city council we're relying and the plaintiffs have offered as nothing to show that those traditional redistricting criteria were subordinated to race they they they've never even disputed that all of these can for all these changes which are small on the periphery and that's why i'm suggesting that that the question of if you're going to make wholesale changes if the commission after this had come out had wanted to make wholesale changes to c d t then it would have changed the whole rotation of the man that's what i'm saying your honor not that they couldn't have said oh mr ellison those are tainted by race those are and even tainted i must say is not the problem race has to predominate it's always a consideration redistricting it has to predominate in order for you to have a  subordinate traditional redistricting criteria they've not given us a thing that disputes that every single change from the two thousand map to the two thousand and twelve ma grounds other than race it's really explainable on two things one we want to keep as much of the district intact as we could from two thousand to every change we made to that district was done to heal some kind of neighborhood so every single change and they're all around the periphery and when you look at those changes you're on and you see that the smaller part of the neighborhood was reunited with the whole so every single change took the smaller part out of cd ten reunited with the whole there was one change that the city council made it was important again another redistricting  criteria that is is well respected they said we're going to give the don's part of the district which is in the south back to two council district eight because we want to accommodate council member parks so that his home will no longer be outside of his district is perfectly acceptable so and that actually of course reduced the african american population in city town the other thing that happened  course is that the commission and then the city council brought in this huge neighborhood council about which the plaintiffs are complaining that was far more diverse had a much lower african american population than anything else they brought it in to see ten if you are redistricting on the basis of race you do not do that now i think i have not yet addressed the legislat all the factors properly the district court looked at the kind of evidence that they were trying to get and said this is not going to help your pace and it's improper under village of arlington heights and i i must say this is a criminal case this is a criminal case against a state legislator and they said we draw the line and civil cases so they recognize the privilege that civil cases can i ask you this you just go back to the concession i thought you made at the outset which was that if mr ellison had in fact been the final decision maker on this map they would certainly be able to get past summary judgment right but there's a triable issue as to whether race because they haven't been able to show what was in the minds of the city council folks themselves right because their intent is ultimately their the decision makers their intent matters and it seems to me your argument to profit from seems to cut pretty sharply against that right if that's what you're saying to them then it i understand perfectly well they're saying well my goodness let's go to post those people and then you say oh no no no privilege sorry i mean and i can refer to the court to the three judge court's decision in the condo case because that's so directly on point here and there you had the three judge court upholding the legislative privilege with respect to the state legislative redistricting upholding the legislative privilege and granting summary judgment in favor of the defendants so despite the legislative privilege that the court upheld they said and even given every inference in favor of the  there was a racial element here and i believe when you look at kind of the court even said even given every inference that that race was a predominant a predominant one then we still are going to  remember how public this process was this was not a redistricting that happened in secret this was not the kind of thing where you don't have any way of getting the evidence unless you depose the the kingpin who was in charge of redistricting that wasn't what was going on here this was incredibly public process and it was debated all in public by twenty one members of the commission and then fifteen members of the city council plus  men so i believe the question came up earlier from judge because it's here are you going to depose all those people and what will that show you that you know that you can add up the numbers i mean how do you court has said about shot claims they've said these are exceptional cases we are reserving a shock name for the exceptional case they've said you must take extraordinary caution they've said you must take with i mean if you can make up anything you want to have a hard time coming up with a case where that can't be done you can't do it in this case your honor because of the nature of the criteria that were used they well it has played a great role in the show analysis as as we can see and we attached the sheets of those districts you compare city ten to those districts and there's nothing like it i mean city ten is a compa right on the question of intent here in the supreme court opposing counsel keeps emphasizing that everything is explainable by traditional redistricting criteria i've tried to explain we tried in our brief to explain why that's really not true for example in the case of the palms where they did things that aren't consistent with traditional read district in criteria namely to take voters out of a district that's already depopulated doesn't have a high enough population so we submit that they're simply incorrect when they say that but it is the case in the bethany hill case in front of the supreme court that the issue of what happens when there's traditional redistrict criteria and also evidence of race what is the standard and how do you apply that that is an issue there it seems to me to an issue here in the court would want to wait and see how the supreme court comes out on that on the question of whether or not the city council and so on followed commissioner ellison and his control over the redistricting and so on i still think that the statements by city council president wesson afterwards indicate that he won that he got what he wanted which was to have these districts two districts set up based on race and the number of people the commissioner ellison said he wanted to move into council district ten the number of african american people he said forty percent that's exactly what happened here thank you