intent after listening to the audio records in february of two thousand and twelve her lawsuit was filed within two years of that date so the data discovery should apply to all of the claims the first claimed the only g c complaint the ethics complaint with the oregon ethics commission was filed before the two years but she filed the suit within two years of the decision that dismissed it as a unfounded claim but was she excluded from executive session by a vote of the board when well before well within the two years there's no claims that was not within the two years i have the date in the brief for that meeting that we have that we found the transcript was a public against her after that that were unfounded in law in fact your complaint says that the decision of the more to exclude her was october thirteenth two thousand and eleven and she was informed of it on october twenty seven and that date is in the number how many meaning was she who did i don't have didn't take account but i could see i could come up with that number every single executive session that was held after that there were many other things she was in ny and access to e mails the hardy case  those are different issues that would just focus for a moment on that it seems that in the complaint there's an allegation that he was excluded from one meeting and my colleague referred to the date do you have or can you cite as to anywhere in the record where she was excluded from a specific executive committee meeting on specific dates i don't have that at my fingertips but i do know that there were more than one you do know that yes and you base that on what well one of the one of the hearings she got a copy of their audio record from from us a fellow counselor that she listened to in february of two thousand and twelve where they all met and laid out the plan to punish  enormous complaint so it's a little bit hard to follow but it appeared to me that all of they have a geisha and some of what she had discovered related to the october thirteenth twenty eleven executive session meeting at which the decision was made on the december eighth two thousand and eleven meeting that she was excluded from when she tried to show up i didn't see any other specific ones i may be missing something but he doesn't actually matter except for purposes of the statute of limitations well she was excluded from meetings during the two years prior to this lawsuit being filed and she's referred to those meetings those certainly can be proven in that and this is a put at the pleading stage she clearly was excluded from at least one meeting and that's sufficient to be a violation of her rights as a commissioner ok let let's let's argue and all the under organ law that it was improper for the majority to exclude her from the executive i mean let's say that's true she has now been recalled removed from the commission what relieve would she be entitled to at this point while she's her freedom of speech was tonight and that was part of the reason that was part of her freedom of speech was she has as a ratepayer in the district her finds her the district's money was wasted millions of dollars of money were wasted by this district there were a million dollars was paid to their lawyer who had a record for prostitution convictions that cannot i don't understand how attorney fees are out of pocket expense all this frivolous litigation and that's certainly an expense she was why is that actionable in view of the nor pennington doctrine well because they were sham cases they same the sham exception to the nor kennington doctrine is a clear exception to the first amendment they don't have the first amendment right to use these lawsuits as weapons to beat up people and take away their first amendment rights that's clear in the case law and the supreme court case so i want you to assume for the sake of this question that her only viable claim is exclusion from executive session and if that's so then she would presumably be entitled to nominal damages and attorney fees perhaps that are related specifically to that claim and what other damages would be available if that were her only claim the monetary damages and  entitled to such damages for a like exclusion you know i don't have a case in my fingertips that wasn't the basis for the court ruling below and that we didn't it wasn't an issue that was made attacked by motion and she didn't but as my colleague pointed out let assume for a moment just for purposes of our discussion we're trying to get you to help us to understand the proper basis for your case if if the only claim that remains viable is a first amendment violation of your client's right because she was excluded from an executive committee meeting whether it was one or two and basically start my analysis i don't know that she would be entitled to more than nominal damages so please tell us why she would be entitled to more and if so what damages she would be entitled to based solely on the fact that she was excluded from one or more executive committee meetings well i'm not research this issue but about in general it was my understanding that the first amendment it's a criminal offense to violate people's constitutional rights since the civil offense and general damages are applied to both meaning and emotional harm that she gets because she can't do her job and speak on a matter of public concern it as well i mean the the thirty three i'm not sure how that's relevant but i take it your position is that if someone is i don't like to to a public body and it was wrongly excluded from an executive session it's a crime i'm not mentally from that wrong being inflicted upon them the first member is a very important one of the most important ones we have and i've never seen a case that described the dismiss that as a first amendment case because you weren't hurt bad enough i don't think that's  case give us some analogy then what damages she should be entitled to based upon hours from one or more executive committee i think that i think that the exclusion and her inability to participate and in the meeting when they where they discussed they attack against her through a series of unwarranted unfounded and sham lawsuits that she was a not able to dispute the decisions that were being made part nothing could be done at the exact while this group did they did things they did they made decisions and they did a little things during executive session but but they are the law still requires that she be allowed to perform that duty just like mr julian bond have a right to go to the legislature even if he wasn't going to be effective there and so that's a constitutional right so she when she went to the body she went to the legislative body she was in connecticut doing that well in the case it took a seat t the case that we submitted to us week and the supplemental authorities indicates that that is part of the meeting processes that have districts in oregon that they have that right to be there for that reason i think for our purposes let's just assume that she should have been excluded from these executive committee meetings but go on from there what what else is involved here my colleague has mentioned the norm pennington doctor in connection with the lawsuit she said they were sam litigation the reality is that went back and forth reasonable people could disagree about them why why were these sham yes i mean you initiated a lot of these things was that  case the reason she was pursuing this issue was because mr moore was taking spending money he was terminated from the lottery commission for having a hundred fifty thousand dollars of unlawfully spent finds he was doing the same thing with this district and he was  he was exceeding his secretary authority that he paid bribe money to mr have to do a whole first amendment pardon what's that got to do with the first the man that was the retell that was the reason for the great television i was asked why she was attacked like that she was  the instances of exclusion from the executive session assuming that that the pride to her of something that had to be done as as a council member yes but she had many other consequences besides that she was not allowed to speak  may please the court good morning i'm blake for i represent the pelleas a lot of the questions obviously focused on the allegation that the appellant was excluded from executive session meetings as i read the complaint navi slee it's kind of difficult to read the complaint because the so long the allegation is that there was a vote to exclude her from a particular executive session meeting no that's not the allegation i'm sorry to interrupt but i believe the allegation is that she was informed that she would be excluded not only from the october thirteenth meeting but from regardless if one two are it shouldn't really matter the number as long as they're within the statute of limitations why wouldn't that be act taking we have to take the complaint or strew meaning that there were these retaliatory motives from the exclusion of the so we have a similar case from this circuit school districts that talks about the standard the x taken by your legislative peers for lack of a better word argue with that official with the appointment from the body of somebody to be an official presenting then that's not here here it's now a geisha in that you couldn't do a job as a board member because she wasn't allowed to participate executive sessions but i believe you're referring to the supreme court case bond and that was an elected official in a state who wasn't allowed to sit in his office as in the in the house of representatives of the state i'm referring to blair versus bethel school district which is a case which is that which was a retaliation claim brought by a school board member who had been voted out of his position as vice president of the school board yes but the question in that case and what may be different here is that under blair there is something that can be considered a viable claim if the act deprives the person of the rights and p rogatis of the office and that wasn't true in blair but i guess what i'm struggling with in your position is it seems to me that a duly elected member of a public body in oregon has the right to attend meetings of that public body including those that are held in executive session the point of that being that there may be confidential materials looked at that employees in general or members of the public shouldn't see but that is a seems to me a core function of the governing body to meet regular and executive session so why wouldn't that be one of the right super rogatis of the elected office where the language from bear blair is that the only kinds of alleged retaliatory asking that they can be the basis of a retaliation claim we're talking about your legislative peers are acts that the private the person of the authority that they're a title to that's exactly what i'm saying that person has the right when they are elected to a public bo to attend its meetings isn't that the core function of a board member the authority that a board member has is to make board policy and public meetings to vote on board policy executive session meetings  informational only that is not and that is not how i read the statute it seems to me that they are permitted to deliberated they are permitted to view confidential documents so executive session  a means for the board to examine and consider materials that are not publicly available for some confidential reason but if it's a and intergroup part or can be an integral part of the decision making process i don't understand why it isn't one of the core rights and parameters of the office which is the phrase that they're used i don't to disagree that an executive session is not important in making policy decisions in voting on policy decisions but i would point out that the complaint alleges that all executive session meetings are recorded a noticed how does that help if and that's like saying i don't get to come to oral argument no one will let me end but i can listen to what other people you know house curse a the right of a board member is the influence of the others by  e and discussion if all board members decide how they're going to go in a private the bay which a board members excluded from she can perform a functions that's the essence of the exclusion place the board's objective in stripping blair of his leadership position as dense a plea wasn't to punish him for his advocacy but instead to put in place a vice president who better represented the majority view and then went on to say that his authority as a member of the board was unaffected he retained the full range of rights and parag lives that came with having been publicly elected so that's different from being deprived of a forum and a very place that is influencing and creating the idea is that ultimately will be decided by the board but she still had available to her the information that was revealed and any executive session she doesn't have a chance to influence that that decision but at least have a chance to influence the others but you just excluded from the meeting with that takes place which she can still influence the other members in open meetings elsewhere and she can also cast her vote didn't have access to documents that were examined that those executives sessions because that's not part of what's record i mean that's the allegation of a complaint we don't know if any of this is true or not true that's not our function at this point we're just looking at where the allegations are awful why don't we just for a moment argu that the members of this panel believe that or going to law required that ms holloway be able to participate in executive session otherwise it wasn't a meeting under oregon law just for our purposes our discussion if that's true would you agree that she would have a right to something if you will damages and if so what might those damages be based on her exclusion from the executive comm well i guess you would have to ask miss holloway but a presumably there's presumably there's claims for compensable damages including emotional distress now can she actually recover that i mean would that actually be awarded i don't know but theoretically i assume it's possible but i would also like to point out to oregon the oregon executive meeting the laws don't unlike the public meeting laws don't require or don't mandate that every board member attend the executive session no of course not they have to have it available to them if someone has something better to do they don't have to go it's not mandatory but an executive session  meeting of the body that is close to certain people generally would be employees or members of the public but it is a meeting and a meeting is the convening of the governing body so the fact that it isn't mandatory to attend really doesn't get you very far well i didn't mean to say that it wasn't mandatory what i meant to say is that the law doesn't require our the law doesn't mandate anywhere that all members of the board be present for an executive session meeting before they have it is literally a vailable they had has to be available to them because it is defined as a meeting of the board with certain characteristics and a meeting of the board is the convening of the board the whole board now that doesn't mean everyone will attend every meeting but in order for it to be a meeting within the meaning of the law it has to be the convening of that more well under the open under the public meeting the laws that meeting of a certain characteristic that meeting means the board selected members of the board and nobody else on the board is allowed to show up correct but the whole board or quorum of the board is not required to be there before it's considered a meeting this is in contrast to the public meeting the laws where a validly instituted quorum of the board has to be present before the meeting as valid and before any sort of policy can be voted on is a difference between not being present and being excluded yes counsel i think you're maybe being against a brick wall here so let me move on to the sham litigation defenses raised by your colleague nor pennington seems to apply here  action to the district court's opinion is is essentially that the district court didn't take my allegations that the litigation was a sham as true as the district court was entitled to do on the citing in effect what is a motion to dismiss standard  however what the district court said is that all the allegations in the complaint that nominally go toward showing that the these various kinds of litigations were sham or totally conclusory in some cases the allegation is literally only that the litigation is a sham i mean there's no other word used there aren't any allegations of fact going toward showing that the allegations are sham other than basically that the the miss hall we the allegation defense obviously conclusory statements are not enough you point out that the district court noted that what would ms holloway's counsel have to do to bring this sham litigation defense to the fore well first of all i point out that to overcome the norm nor pennington immunity as it's called requires a heightened pleading standard so it's not just the normal pleading standards it's a heightened pleading standard but the allegations that go toward showing that litigation are some sort of petition of the government is a sham or out allegation showing that the petition was objectively on reasonable in the sense that no reasonable litigant whatever expect prevail also there is kind of a requiring of bad faith you can file lawsuits as a weapon that's perfectly acceptable even assuming that you prevail what's not allowed under nor pennington is both a lawsuit that is objectively objectively speaking has no chance of prevailing and also bad faith in the sense that you're not trying to prevail on the merits you're trying to affect your adversary for lack of a better word by the side effects of the law suit as opposed to the ruling that you hope to get from the court let me ask you about a slightly different question the complaint alleges a number of deprivation by the board for example the lowering of insurance coverage access to certain materials those particular actions according to my understanding were made a point at which through all the members of the board is that immunize those actions from any adverse consequences because it affected everyone there though those are not actions with which the prive which the prime is holway from her authority as the board but in addition the the it was the insurance carrier that dropped the district from coverage that's what's because of the exceeding litigation cost the district then acquired new insurance from an additional carrier the new insurance wasn't wasn't as good for cost reasons later in two thousand and fifteen after miss holloway was recalled the original insurance carrier s t i i asked picked up the district again so the action was not initiated by the board in the case of the insurance it was the insurance companies themselves making presumably a business decision decision by a bully charges filed against miss holloway she asked the insurance cover the insurance company the district's insurance company for to provide defense the insurance company declined finding after it concluded  that the the claim against her was outside of its policy she then asked the board for defense under the tort claims act the district tired and outside law firm took to decide whether or not it hat was required to defend her from the claim under the torah claims act and the law firm concluded that it didn't and she also sued the law firm thank you counsel you have a bit of rebuttal time t prove fraud by one of their fellow board members for false claims for reimbursements and then they claim that she was doing it for her husband's benefit she needed it for herself that was unfair there was no factual basis to support that claim was dismissed as unfounded by the o e c d on the bully claims the  state of oregon boley department whatever they call it they decided that she was not the employer there was no everson plummet action against the gentleman he had no case and had no case factual it's only your position that the fact that lawsuit is unsuccessful means that it's she home no we pleaded the facts and showed it was they had he had no right to claim against her she was not his employer which is required she didn't he had no adverse employment action he had no he was not a victim of discrimination she sued her as a as an as a an accomplice when there was no principle that's what the decision said how can you sue somebody an accomplice what's the proper principle involved every single case was unfounded and we allege the details showed that was unfounded so there was an adequate allegation of sham that the decision made by because the next