yes all right then that being the case if the parties are ready we will begin and that would be with mr acosta please good morning to all constitutionally valid as an exercise of its home rule power under section six of section six of article seven of the illinois constitution there are two specific reasons why the trial court's analysis however was flawed  in the context of this case the subject matter of the ordinance does not pertain to its quote local government in affairs as required under section six a and nd it was not inactive for a legitimate purpose as described in section six a such as to protect public health safety morals welfare or to license tax or incur debt the defendant's position is that home rule authority is so broad that it would permit a home rule unit to override and exempt itself from virtually any direct state regulation of the home rule unit to be sure home rule authority is brought however there is this key limitations which come into play in the context of this case overall authority may not override state law were vital state interests are involved and home rule authority is limited to regulation of issues which pertain only to local governmental affairs as explained in our brief our supreme court has held that these two limiting factors are essential to a proper analysis of whether home rule power is constitutionally exercised the statute at issue here in which is included in the illinois municipal code ob the code obviously regulates a wide variety of how municipalities legally operate within our state the statute was an act it is a consumer protection law for illinois residents who druther water from municipally owned water utilities for years the same consumer protections were already in place under the illinois public utilities act the i p u a for illinois residents to receive their waters from public utilities so the statute was enacted and became effective artist of two thousand and seventeen to close a loophole and ensure that all illinois residents were afforded the same consumer protections this is the vital state interest at issue in this case the home rule ordinance that issue on the other hand was an elected approximately two months after the subject lawsuit was filed the home rule unit here inadequate it's a word nukes in order to specifically attempt to defend against this underlying lawsuit scuse me this was a purely defensive mechanism it was not to address regulate or protect public health safety morals or welfare nor to tax license or incur debt all of which were constitutionally enumerated legitimate purposes for home rule power to be exercised the statute in new york ordinance here are diametrically opposed to one another the statute requires wash a cognitive ability water customers within twelve months the ordinance completely nala five that requirement and was wash akad a bill water services provided to its customers at any time in the past sometimes many years later are conflicts with state law the st issue courts need to assess is whether the home rule was constitutionally authorized our supreme court's decision in palm vs two thousand eight hundred lakeshore drive condo association controls the analysis of whether a home rule ordinance is constitutional the supreme court in politics press we established a two prong analysis st court must pacifically find that the substance of the moral ordinance pertains to a local governmental affair this makes sense because the limiting language in section six a which is the constitutional basis for exercising any type of home rule of henri it is crucial to understand that this finding preceded any analysis of whether the conflicting subject of the legislation is not a local governmental affair the analysis stops in the home rule units attempted exercises has to be unconstitutional as noted in the palm decision this problem requires looking at whether the state has expressed a vital interest in the itself and cover over twenty months of its violation of state law or can be constitutionally justified the clear answer is no it cannot the constitutionality of any home rule units legislation is subject to a do novo review in this court therefore all aspects of constitutional requirements must be met in this court's analysis and judgment of wessex aguas ordinance in this case the state legislature clearly and unambiguously expressed a vital interest in closing a preexisting loophole which treated customers of municipally owned water utility differently than those customers of public utilities the statute in question was added to the illinois municipal code in august of tw and then at the state expressly sought to expand the same consumer protections afforded to customers of public utilities to those of municipally owned water utilities accordingly the issue being regulated cannot be defined as one which is a local governmental of fear of the city of washer cargo no amount of unique circumstances in challenges in the city's billing system and they had many can turn the state's interest of standardizing consumer protections throughout the state into a local issue there is no constitutional basis for allowing the city to invoke at home rule authority over an issue which is not purely local governmental concern there are also two unique and dispositive factors we maintain which distinguish this case from the vast majority of cases interpret in conflicting state home or legislated later than act meds and which render russia congress attempted exercise of homeless already unconstitutional and illegitimate  the object of state regulation here is the home rule unit itself its conduct in billing for its water services it is not a category regulating rd parties were general commercial or environmental issues and  it's uncontested that the city where chicago passed the subject ordinance amending its water bill in policy as an attempt to defense to the underlying lawsuit here in the trial courts analysis of whether the issue being regulated was a local governmental affairs not a state wide vital interest was overly narrow the trial court focused on the fact that the city was performing the billing practices itself and encountered unique problems which was defective water meters cetera that analysis fails to recognize the state has an m b usually express a vital interest in standardizing consumer protection throughout the state why should congress ordinance attempts to alter that vital state wide concern while it is certainly limited to russia congo's own conduct it nevertheless destroys the state wide uniformity of regulation sought by the state this is precisely why the ordinance is unconstitutional it obstructs of vital state interest and that interest is not a local government governmental affair of the city of worship cargo it goes without saying that each and every municipal and water utility would have its own unique circumstances in attempting to meet the statewide standard however those unique circumstances do not transform the vital state interest into one of local government governmental alternatively plaintiffs maintain that the language of the statute itself expressly limits and prohibits the home rule units from acting in a contradictory from enacting contradictory provisions to exempt themselves from state r regulating all municipalities operating water utilities including those which are home rule units require them all to build their water services to their customers within the parameters set forth in the statute the express language of the statute therefore meet the requirements of the statute and statutes because it limits the it specifically limits the function of the municipality please also maintain that even if this court were to up hold the constitutionality of the city's exercise of home rule for a the trial court erred by not striking down the intended retroactive impact of that ordinance and we cite the cases of perry lazenby and henry for that purpose leslie a quick word about the defendants alleged jurisdictional and waiver defenses this court has already rejected the jurisdictional arguments by denying the city's motion to dismiss this appeal based on the same arguments both cleanest post judgment motions were filed within thirty days following the trial court's judgment and both motions attacked the substance of the judgment itself  support for the fact that washing cars water customers were indeed intended beneficiaries and not merely incidental beneficiaries of the water meter updating contract seasoning water customer stood to accrue several direct benefits from the contract being performed in this regard we cited the holdings in briarcliff which is a nd district case and read our wets which was a supreme court case in support of our rd party beneficiary status we request reversal of the trial court's granted water resources a motion to dismiss entered to th two thousand and nineteen and to remand that claim as well to the trial court for further proceedings be glad to take your questions thank you thank state has stated such in its wedge a slate of history it it inactive the statute so that it would close a loophole as i stated earlier and it would standardize how ourselves from this state mandating it destroys what is stated to be a vital state interest and you get banned from the legislative history and the legislative comments correct yes they do ok but are we supposed to st look at the statute to determine what purpose and intent and only if there's ambiguity go to other sources well i think that's that's proper construction absolutely however the statute itself that any municipality operating in waterworks facility shall bill so it's a direct mandate and this is part of the illinois municipal code which applies to obviously all municipalities so we we have to start out with the mandatory nature of the statute and then the question is well is it a is it a vital state interest will how do you determine that i think palm requires us to make that analysis and so the legislative history is certainly part of that ok still let's just assume for the sake of argument that it is not a vital state interest here point to me something in that statute where the legislature is specific in these preemption other than i i did hear you there w category that's defined in this statute this is any municipality operating in waterworks so it's a defined limited category of municipalities that we're talking about and two to answer the st part of the question you asked where the preemptive language is correct well i think the the way that the way that i'm looking at that the way that we're looking at that and urging the court to follow is  there's the statute on statutes and the statute on statute says that unless there's a specific language limiting or denying the power or function and the language specifically sets forth in what manner and to what extent it is a limitation or denial of the power or function of a home or a unit the reason i raise that is because this statue is directly limiting the function of this defined category of municipalities it's limiting it it says you must do this you shall do this that we are to the court to view as an expressed limitation on the function of these defined municipalities not sure if that answers your question directly but that's that's my ok fair enough what about the rational activity ye so we raised in a post judgment motion that if you're going to find this to be constitutional as a valid home rule exercise then you must look at the intended retroactive impact and the retroactive impact here takes away the stupid abatement rights that the customers of wesh a cargo had in terms of bills that were so old that the state statute abated their responsibility to pay those bills once the statute was an active in august of two thousand and seventeen now to be clear that there was still a twelve month look back period that was that these customers had and then for twenty months they could presumably rely that they do know that money anymore well why should congo continue to violate the statute for twenty months even before passing this ordinance and then because it tries to implement it retroactively it says oh by the way all of those other older bills for five years back us for those as well so there's a twenty month period of time where vested abatement rights were in place and they shouldn't be disturbed that's our argument on that well here let me ask you this do you think that there is a vested right now i have to do your water bill from its right to charge for water but we haven't walked away from it the state has said you can't build for that anymore because it's right with potential fraud i mean it's right with both pencil misinformation that that isn't accurate anymore means les so the fact that the state stepped in and said no you've got a you've got a bill your customers the way the public utilities are required to do that that abated those financial  protect your position is that the the law here does expressly limit the ordinance at issue correct that's one of our positions yes yes but i want to use as the court disgusted the statute i'm statutes you need the most specific language well you know the specificity of languages i guess in the eye of the beholder but what we're saying is that because it specifically limits the function of the minutes a pallet in its billing processes that it does meet the statute and that you that the statute in statute says that there has to be specific language limiting the power or force or function or function and when it says the statute says shall bill we believe that that limits the function of the municipality with respect to the jurisdictional argument  however on the merits of that issue i welcome i welcome an analysis of it because both of our post judgment motions both of them were filed within thirty days and both of them attacked the substance of three of the judgment order itself all of the cases that the defense counsel relies upon in making the jurisdictional argument up for you to those two crucial elements filed within thirty days attacking the judgment itself the last of those post judgment motions was disposed upon was disposed of on december th and this notice of exactly what the sense counsel re after we did file to post judgment motions and that's why justice hutchinson that's why we agreed to withdraw one but it was under agreement and it was it  was documented by the court that in agreeing to do that and avoiding having potentially having to you know ask for leave to combine the two motions or work it with in some other fashion that we would just go ahead and well my understanding justice hutchinson is that home rule units are closer to the people being affected by the law and and the constitution recognizes that statewide think the concept of home rule of forty is a good one generally but when we follow well i'll just answer that that's your that was your question so and you gave me my next question and your language what could be closer to the people of western congo then some of the or some of the neighbors are getting what you call complementary water what i call free water because the city and not because of the city's faults but because of instruments machines that don't function properly i think that's an interesting way to describe the situation i'm not sure it's one hundred percent accurate and the reason i say that is because the residents of the city of west ricardo were impacted by this water meter meter updating the project all of them were affected by it everybody's water meter had to be replaced the particular circumstances of issues with i think software communication and the function of some of these matters that was the responsibility of i think under the contract of codefendant water resources incorporated that's where the part of this case but nobody is getting quote unquote free water what's happening is that if you're not meeting the state requirement to bill properly in a timely fashion then you can't bill for that anymore the result of that is that some people probably most of the people in western colorado would have gotten on a quote free water as you said for some period of time but it's it's the city's responsibility to be able to track usage and provide reasonable bills and if it doesn't do that why is there an onus on the part of the customer to somehow make up and approximated amount which may or may not be accurate compared to your neighbor and  way that you use it is the city's responsibility and the state requires the same so if there is a problem with water resources incorporated in its work the city can certainly push that responsibility  liability onto that part if legislation is presumed valid legislative action and a ordinance passed by a city whether it's home rule or not just for purposes of this this question is considered legislation how does when this city annex this ordinance proof that it wants to circumvent the state statute when a local billing issue is the real problem well i think you take it in a vacuum as far as when it passed then you may be you may have a you know galad observation on that but there are other circumstances here that talk about the motivation in the of the city the city came into court after this lawsuit was filed and they asked for an extended period of time the answer in looking at the cities the minutes from the city board meetings this issue was never on their agenda on till i think possibly the very night it was an act that many other issues in the city of west because when they're in their board meetings have been introduced sent to committee  very st time it was presented so generally speaking i don't think you know if it's illegitimate when they fought when they enacted but in this case it is obvious does that change any  well respectfully i don't think it does change it i think that the the constitutionally enumerated purposes for home rule exercises of authority have to do with as a citizen in section six a for the protection of the public health safety morals and welfare to license tax record death this is the motivation that is that is present here doesn't fit any of those categories  doesn't westacott go have an obligation to the city to its residents to make sure that its finances are in order and it can pay for the things that the city needs and certainly collecting contract rights against water resources incorporated they can pursue perhaps insured losses there's a number of things that they can do to remain financially sound without violating state law and or nullifying state law in the authorised manner last question that i have is to home rule unit or to any it is is in possibility to comply which might be the case here a defense or well i honestly i don't know that my buy perception is that i could i can imagine what impassibility means in this context because it simply means that they all simply require them to stop billing for water services beyond twelve months after they were provided so i don't know how that would be impossible in any context even though your pleadings say you're not looking for complementary water in essence that what that is what would happen if they could not build because it was impossible due to water resources equipment i think the answer that there would be an abatement of their financial responsibility in the city certainly has other options available to it as i indicated earlier in terms of pursuing claims against water resources incorporated which they blame for all of dismissed clamps appeal for lack of jurisdiction alternatively the city requests dismissal because plaintiffs entire appeal is based either on arguments raised for the st time on appeal or for the st time and plaintiffs post judgment motion must be directed against the final judgment in order to toll the time for appeal additionally issue because highly most recently used to know pull the post judgment motions that are not directed against the judgment do the time for appeal this is irrespective of how the motion is actually title these cases hold that the court looks to the substance of the motion determined whether the motion is actually directed against the judgment in this case plants closed judgment motion i believe this title something to the effect of motion to limit the scope of the of the court's final judgment or was not directed against the final judgment or it was directed at obtaining declaratory relief on an issue the plaintiff never raised prior to judgment that issue being plaintiff's new challenge to the temporal reach of the city's humble ordinance or its retroactive effect this is confirmed by plaintiff's plaintiff's counsel's remarks on the nature of their post judgment motion to the trial court in the record of proceedings at pages seventy seven  seventy eight cents counsel stated to the court our motion is asking the court to look at an issue that the court never mentioned in its october th judgment or it was never mentioned in the supersedes state statute and if you read my motion carefully you'll see that we're not challenging that aspect of the court's ruling therefore it's not really a motion to reconsider what was decided on october  city agrees with counsel statements made to the trial court that they were not challenging any aspect of the trial court's final judgment were instead what they were doing was raising a new issue as to the yes to the awful the something retroactive provision of the city's ordinance for the st time in a post judgment motion they were seeing a declaration that the ordinance was unlawfully retroactive then presumably once plaintiffs receive that favorable declaration they were asking the court to modify the court's final judgment order so the motion itself was not directed in any way at the substance of the final judgment were any of the issues that the final judgment result this is precisely what happened in the shu guess haydn's to know what cases where although the motions were titled with titles like motion to vacate in motion to reconsider the relief that they were really asking for in the substance of the motions had nothing to do with the the final judgment  even at this court is what you're stiction the course should dismissed class appeal because it entirely consists of arguments either raise for the st time on appeal or for the st time in a post judgment motion and therefore are forfeited under the evanston insurance company republik utilities have been preempted by state wide control of public utilities in support they say orland hills commonwealth edison people's gas and light in current cases these cases stand for the proposition that the public utilities act pre amps minas by regulation of rd party public utilities like gas utilities or electric utilities obviously that's not the case here  the regulation at issue is the city's water billing regulation that applies to its own municipally on an operating water distribution system so the argument that was actually raised in the trial court response to the city's motion for judgment on the pleadings those arguments are procedurally forfeited and waived they consist of pius entire appeal and we request that the court dismiss plants appeal pertain to the city's local government in affairs as judge fortune determined it absolutely pertains to local government affairs of or against the city's water billing practices for its locally owned water distribution system in addresses local problems encountered by the water meter placements justice hutchinson was spot on in mentioning that there couldn't be a in more close issue to the two residents of the city of wash a combo than their water system not being adequately funded it is as local as it gets plants next argument is the city's ordinances expressi code where the legislature had no problem indicating a limitation on homework thore and using the specific language the illinois legislature knows exactly what to say they've done so at least up and times in the ordinance is inconsistent with the state statute is not sufficient to invalidate were nuns and that was announced by the palm court finally the plaintiffs are you that the city's ordinance unconstitutionally retroactive we know that vested right to free water use under section eleven thousand one hundred and fifty two we are not aware of any court decree in illinois that that declares that plaintiffs are entitled to complimentary water under you did and it were lives i appreciate your forfeiture issue would be the dual motions that were filed by counsel represented that there was an agreement to preserve those issues or appeal should we disregard that well the the motion that counsel is referring to is the motion for reconsideration which was withdrawn  in late november and the only thing the order says is that to the extent they file an appeal timely appeal they can raise those issues but i did not date they did  position then there was an agreement but but plaintiffs never be raised that issue that's right your honor and again the the the agreement is to the extent they file arguments to ignore the general forfeiture i didn't see in the plainest briefing at all i believe the class position is that they did raise all these arguments i don't believe that they have raised by the parties object and i will take the question back that was unfair to which on the spot like that i want to talk about your authority for to create an ordinance let's assume that it fits within the i mentioned only courts give effect to retroactive laws if the if the law indicates it's temporal reach and it's retroactive absent a constitutional prohibition the courts give effect to those laws and that's that's been that's well established case law i am looking at plaintiff argument i don't see any argument or prevailing are you man showing up there is some position then there is no investigate rights here so that does not tarnish your ability to impose retroactivity correct your honor there is there is no us as far as we are aware there is no case has decreed that section eleven thousand one hundred and fifty dash two provides the vested right to free water well let me ask you this why the timing of the  well i mean there's there's obviously no secret that all i was file through cities not hiding from that this was a problem as we mentioned in the brief problems not of the city's making there were many defective water meters the city's been trying to get its water billing date and they're trying to deal with a very local problem so you know that's that's us determine that that motion is not in substance directed against the judgment because that's an additional requirement a supreme court rule three o three that the post trial motion be against the judgment same situation in haydn the motion was styled as a motion to reconsider but in substance it really was a motion to clarify the final judgment court determined that it was not directed against the judgment judgment that's exactly what we have here we have a motion requesting a new declaratory relief as to the lawfulness of the retroactivity provision in the cities or announced that was never raised prior to the judgment so the judgment didn't address it at all rightfully so kind to us never raise then the defendants made a note of it and one of it's in our pleadings but only to say to the court this isn't an issue that's been raised so again this this this the remaining post judgment motion isn't directed at the final judgement is directed at obtaining new release rules suggest but a motion to modify if granted due to new information although it wasn't brand new information are still challenges the impact of the judgement doesn't it it does judge but it's the new information on the issues that were resolved by the judgement in this situation the new issue is one that was not even addressed in the final judgment in like in some rightfully so it wasn't an issue raised in the case so do what you're saying is judge fuller to talked about this new rule ordinance just related to what home rule is and home rule is is allows this to happen ana and the issue of retroactivity simply wasn't an issue in the case plans had every opportunity to raise it we attach the city's a mandatory ordinance to our motion for judgment on the pleadings and then any time the plaintiffs could have a challenge to the time for reach of the city's ordinance they didn't and they waited until a post judgment osha requesting no relief and no relief not that was not directed at the final judgment and anyway ok how do you respond to counsel's mr costas argument that the word any in the state statutory authority forty the court rejected that no there still are specific limiting language that the legislature routinely uses in is not shy about using it knows how to use and we as i argued we pointed out there's at least seven separate sections of the illinois municipal code where the legislature has done just that they did not use that language they know what language to use they did not use that language with section eleven  dollars and that's that's that's a clear indication that the legislature did not intend to limit home office already on that subject matter and in fact we are aware that there may be something in that big hopper in springfield that would would make it clear and if there was if it was already taken care of in the case in the existing statutory authority why would they act to make it clear that's right your honor and then any time the illinois legislature can revisit any statute  municipality any statute and i'm a small cog and if by their legislative wisdom they determine that home with already should be limited they always have the opportunity to do it and so i think your question goes to the fix that courts alternately point out more cases the fixes with the legislature and not with the courts i know i'm probably going to regret regret this comment but you are being very generous when you say the today for water resources to water resources this court should affirm of this missile of counts three and six by applying subtle principles of contract law one of those principles a stepladder theft contract rights only as intended or direct rd party beneficiaries the strong presumption is that defendants contract that only for their own benefit to overcome this strong presumption plaintiff had to identify a provision that was breached and then makes clear that defendants intended to confer plaintiff's rd party rights regarding billing directly to benefit a class of upwards of seven thousand users of water meters or correctly fund the while every city contract may incidentally benefit the public not every contract is intended for their direct benefit and the plans to not show that they were direct beneficiaries of the truck which should be affirmed the contract here requires replacement of seven thousand water meters with new electronic meters hardware and software the contract was highly technical and many hundreds of pages yet in all those pages planets could plead no language manifesting the pendants intention to create rd party rights regarding billing directly for the benefit of seven thousand users of the new equipment plainness relied on various provisions which are a mismatch for their breach of contract claims these provisions or not breached they are not that if you and they do not form the basis for the claims claims are not seeking to recover for example for damage to their own property so these provisions do not support  rd party recovery courts are reluctant to recognize rd party right in public country x due to many factors the threat of enormous liability to a large class the absence of any preexisting duty to provide the contract for service the desirability of government control over litigation and the unlikelihood that the contracting produce intended to impose an obligation on a promise or which rd parties could enforce if anything there is a stronger presumption against the creation of rd party rights in public contracts than in private contract these factories argue against the creation of rd party rights but potentially to a class of seven thousand users under the contract with the city water resources promised performance directly to the city the meters helped the city to collect revenue from users of the upgraded system the benefit to plaintiffs was intended to be indirect as would be true of any other public contract if plaintiffs were correct then every user would have a potential claim and such a large class would be inconsistent with the clear intent to benefit test required for public contracts under illinois law absent a clear intent to create a rd party rights the contract was only incidentally for plaintiffs benefit the trial court's dismissal should be affirmed thank you and i think we've come to the question period can't i have to ask a question brand new meters were installed pursuant to this contract did the individual homeowners users i'm not talking about the nonresidential not just talk about the did they have to agree to the installation of the new meter well i certainly know that they were strongly encouraged in terms of having buyin at least nothing that i'm aware of and nothing that was attached as an exhibit to the pleadings so you raise a very good question and i think that the purpose not the purpose i think that there was contract but i'm actually not aware of any provision that said that they had to sign anything or the benefit that you know that they're actually now more direct beneficiary possibly well i think that's a matter of speculation  ok because it's it's and by the way seven argue to my knowledge i know we certainly didn't have time today but even if you go back over the briefing and in the record there's nothing on it so i think it's just a matter of speculation any litigation between the city and water resources so mr acosta's arguments that well you don't have to take it from my client you know it won't be free complementary or whatever you wan why we have a rule that severely limits rd party beneficiary rights contracts between the city and water resources and it's up to the city if they want to pursue it remedy that's up to the city not up to seven thousand people ok thank you very much do either of my colleagues have questions based upon mine and you know i do not know thank you thank you very much and thank you mr rhesus we will now go back to mr acosta do you have any rebuttal you wish to offer you need to under so we can hear issues i'd like to start my rebuttal simply by addressing something that i think justice hutchinson asked about and that was some purported legislation perhaps pending in springfield about this issue i am  aware that number one but it reminded me of the concept the poster medial measures which is in the law and the concept there is that if somebody goes to correct something after an incident it doesn't necessarily imply what the standard should have been or were at the time of the incident itself and in the it's usually barred as a post remedial measure that's i'm speaking with a case of premises liability and and that kind of line of cases but the concept is similar the counts the rationale is reasonable that that is if this if the state is going back to try to add language like that that's great that i guess city's defense about the standards of palm versus two thousand eight hundred lakeshore drive this is a supreme court case directly on point that sets up a prerequisite analysis before we get into the need for express language in a statute that would limit the kind current exercise of homeless already before you get there you have to meet the constitutional requirements of six a that it be a local governmental issue so i didn't hear any discussion about whether a statewide vital interest is at play all i heard was wash a cargo has incurred these unfortunate water meter problems the same rationale could be made by all eunice appellate every single municipality that runs on water works would have its own set of potentially difficult and challenging circumstances to mean the state mandates that doesn't matter it doesn't matter that they have their own local circumstances what matters is that a viable state interest is at play and if you read palm correctly we we believe you have to take that into account in judging whether the issue being regulated is in fact a local governmental affair in palm it said that part of that analysis requires figuring out whether a state of vital state interest is at play defendants have completely ignored that as far as this far as i can tell with regard to the jurisdictional issue and justice protest the very insightful question that is the motion to limit the scope of the judgment order was absolutely without any doubt a motion to modify that judgment order and the modification was because let's let's read let's look at this let's look at the sequence chronologically here a complaint was filed in february t original complaint a council says well it could have you could have modified your claim that we were in the middle of arguing the entire time about whether this was a constitutional exercise  analysis it didn't go into the substance of retroactivity the court's order of october th the judgment order did not talk about the temporal reach of this ordinance at all didn't say whether was prospective i didn't say it was retroactive didn't say anything about that was an issue that was buried in the substance of the ordinance so what we did is we said ok judge we're we understand that you have ruled on the constitutionality aspect of this as an alternative would you please consider for the st time this allegation or this position that the retroactivity is valid so it was it was a request to modify the scope bret of the original order that's absolutely going to the substance of the order and seeking a modification and it meets the requirements is just as per cat wanted out of supreme court rule three with regard to this the rd party beneficiary issue if you look through the various examples that we cited in our brief there are multiple specific intended benefits to city's residents the the points that we highlighted from the contract included providing full customer service package during installation to the city's customers working with the city to promote and the product to achieve by and from the residence collecting relevant data electronically on each water customer account to be used to populate the system software honoring warranties and warranty repairs and maintenance and providing long term customer support you had water resources coming to their individual properties providing this this new system that was supposed to give them a real time readings of their water usage they could wake up in the middle of the night and hit a an app on their phone and see what their water bill looked like that is absolutely an intended benefit to these to these customers so for all of these reasons we would ask that the june th twenty one thousand dollars order granting the motion to dismiss for water resources be reversed it would ask that the october th twenty one dollars teen judgment order be reversed on the grounds that the home rule  ordinance was not constitutionally supported and illegitimate because it was admittedly a defense to this lawsuit and didn't follow the enumerated purposes under six a as well which i don't think counsel address you get one for the record just you know i do have one question mr acosta and that is by could just comment as briefly as possible on a comment that just now retired justice made in a special concurrence to palm where he said that home rule municipalities may choose to govern locally in differing manners is entirely consistent with the purpose of home rule authority indeed the possibility that different home rule units made up similar ordinance ordinances with differing requirement should be of no concern the grant of home rule powers contemplates that different communities which perceive a problem differently made up different measures to address the problem provided that the legislator legislature has taken no affirmative steps to serve circumscribe those measures doesn't that say whole rule jurisdiction is basically very broad unless it is properly and specifically preempted well just protection of public health safety morals and welfare it's a license to tax and to incur debt so when when justice thomas makes that kind of an observation it's certainly reasonable that different communities will for example feel that reads excessively high weeds should be fined at different levels let's say that one community is more affluent and the fine set by the state  is won't make much of a difference they're making up some northern suburbs where you know the five should be much higher than they would be in dalton or some southern suburbs because it makes it makes sense from a local standpoint and they're trying to regulate issues of as as enumerated here the public health safety morals etc this is not that case this there's a preliminary analysis that's required in the city wash a cargo here is now changing its billing practices to promote public health safety morals and welfare what they're doing is they're trying to defend themselves against a valid lawsuit that points out that they violated state law for twenty months even before this was an act their motivation is illegitimate and so justice is justice the comment that you made about justice thomas it just is out of context with regard to the facts of this particular case we would urge the court to look at that very strenuously and realize that the the illegitimacy that's being alleged here by the plaintiffs comes from that specific issue the motivation of it and the fact that it's not constitutionally supported a purpose to enact this ordinance thank you mr kraft and in fact thank all so who have presented today it has been very informative and very well done we will take the matter under advisement except the part about justice and a decision  thank you very much and others welcome thank you