honors my name is k frank and i'm here i'm behalf of charles foster hello mr foster was an employee of the supreme court of the state of washington for only nine years can either resign and a half an hour of fire and date and that will be the end of you and mr foster believes that he was covered by supreme court personnel policies which had been issued on bank in the year two thousand which promised certain procedural due process prior to discipline and terminations and he asked for that due process but was told that he was excluded from coverage by those polic that created the office of the administrator of the courts that those employees are going to be responsible to the supreme court that they are supervised by the supreme court i think the statutes very explicit about that and the supreme court certainly acted over the course of the entire time that those employees have them and office of administrative the court employees they have acted as that as the employer explicitly say who is covered and who is not covered by those holocene and that the policies explicitly state who's excluded and excluded were division directors and that has a meaning that term has a meaning and mr foster was not a division director yes he was a high level employee but he didn't have staff he didn't have a budget he acted under the direction of ms mcqueen he didn't act on her behalf and we don't know what miss mcqueen told the chief justice when she went to speak to him we don't know whether she said i've given him the fifteen days not you know here are the reasons i'm going to give him this appeal right when he says she could act under her discretion one can only assume that the chief justice was expecting her to act in accordance with the law and with the personnel policies of the supreme court and there's nothing in the record to show anything different than that there was that expectation thank you so the mcguire case is  was a special statute that appointed gambling commission employees and it was that statute that excluded employees from coverage from r c w forty one point six and one chemist understand why you wouldn't want gambling commission employees to have the same kinds of rights necessarily that other employees do but that case is very specific about the fact that it deals with an administrative agency and rights given to that in the strait of agency and there's reason not to know that the decision they're making is wrong that it violates the law and it's very clear that mister actually here she's a lawyer she worked for the supreme court she certainly knew followed for employees she testified to that that's in our brief and she knew that mr mcqueen was not a division director and she never sat in her in her testimony that he was the division's rector and we explicitly asked was he a division director and all he said was he was a high level person she knew he wasn't a division director she knew he should be covered by the public she knew that the law of the state of washington and  federal law give rights to employees who have protections of due process terminations for cars the right through here and she knew all of that and if there's any question if there is any question a fact about how was mr foster cover the policy if there is a question of fact this court cannot plant her qualified immunity but must remain and this case to for trial on the question of fact you follow the personnel policies and provide these due process protections to the court employees so if she admitted that that those protections were required what she doesn't it and that is that policies applied to mr foster so that's really the crux of her argument not i don't have to do it you know at a later it's like a slightly different matter i recognize that think page fifteen about all the different ways that public employees can get property rights and employment and one of those ways is through a handbook and there's never been an argument that that has been correct skloot and that says well gee you know the city or state employees can get it but supreme court employees can't there's no reason for her to think that this is the district court and reach qualified immunity you know the dismiss the entire case but it dismissed it without prejudice i believe because there were state law claims that were brought that the court it never ruled on because  happy with some aspects of the employ met and discussed with chief justice and then made a decision that she would ask mr foster to resign the i s u question certainly and we understand the fact salary and so i believe he asked to be made equal to the division directors in terms of souring and level but they didn't call the division director they didn't give him that title now because as the chief lobbyist he didn't actually have his own the record which allowed ms mcqueen to make the determination as to what level people are apt within the office and organizationally how they fit and and that's why i asked you did she ever tell him that he was confident of my knowledge there was no and the the that is a course fundamental requirement for the due process claimed under washington law it's long standing on washington so that public employment is a creature of statute and there are no rights for public employees unless they are created by statute and basically the state has a very comprehensive civil service law all positions in judicia in in the couric and i can take and explain that it's not our position that the washington pre court would not hold that only have power as a separate branch of government to override legislation washington street corner of the judiciary is as you say and i agree with you that it is a co equal branch of government some degree of independence couldn't the state legislature effectively cripple that it was within the discretion of the board of governors of the bar association to make that decision and in washington state the bar association has this affected only like a branch of the supreme court at least for these purposes the legislature after the court adopt the rule on that subject and then pass legislation affected repealing the court rule and that's one of the two cases i found where the where the supreme court came in and said well we've adopted the rule on this we have spoken as a matter of separation of powers the saying they're not independent you knowing that in fact they have no authority to issue or probably get rules that govern their own who are employees even at the highest level what i'm saying is there have been i think six cases in the last thirty years of gone before the state supreme court state court of appeals on the issue of whether or not legislative regulation of judicial employment was violated separation of there's an introduction these rules of the not say that we're adopting these is part of our heritage our to override legislation making our you know employees example civil service and there's no testimony in this record that the court had that inten t plaint the simply assuming because the court adopt these rules that intended to override the legislation exempting all judicial employees from civil service and basically starvation the court simply adopted some as many organizations do private and public simply stops them internal rules for management's affairs wasn't attempting to create rights in the employees for instance in the private context when an employer adopt a personnel manual under washington law if the employer disclaims creation of any rights in the employees then that mat that is just a management or administrative manual for the employer does not form a basis for claims by the manual as as requiring a for cost germination yar that would be correct the manual would not have been followed although i believe the manual unlike state civil service slot there was no procedures for hearings or any kind of follow up if there was a for if  took the position that general rule twenty nine the state supreme court saying that the courts of the state have the obligation to supervise and manage their own staff prevent it the court from collectively bargain with its no indication in there that but the court was attempting to change forty years of state civil service services are now but it also didn't contain a disclaimer that's correct but your aren't the position would be that in view of the state law and in view of the fact that the court has always in the past the further in every separation of powers case to state statute in terms of employment of court employees it always says improper case it could s to adopt procedures and policies to manage its employees but just because it does that internally just like a private employer with a disclaimer in their manual it's free to use those but ultimately it doesn't create legal rights when state the circuit indicated that if there were other grounds that were argued and briefed and and in the district court and they can be affirmative that or it can be affirmed on that basis it is true and i think counsel couple of points first of all regarding the personnel policy that is in the record that we provided to the court and it starts at page twenty nine and there is you noted your honor no disclaimer it is our position that the supreme court stepped into a vacuum when the state legislature exempted those employees from coverage from the protection that every other state employee had it's our position that it did so because it would have created a great group for the state legislature to impose that kind of restriction instruct structure on judicial employee and therefore it chose to leave that blank and then the supreme court acknowledging that many other employees in the state had these kinds of protections ga impose obligations on the court not not cases that tell the court you know it doesn't have to do anything and the most recent case is very explicit in stating first of all regulations should be applied but for most important part of the case from our perspective is that the supreme court recognizes that it has that the courts have the ultimate authority over the management of their employees and over the perks of washington state public employee rights commission rulings and that in the end any decision and that is made that might be in any way adverse to the district court is going to be reviewed by the courts and so that's why this case really is not dispositive of the case in front of this court because it's just we emphasize the integrity interest but you did so and therefore are going to pose a whole new set of requirements on the court which is in a sense an infringement on their judicial independence as well it would be a lot clearer for example the supreme court had just promulgated a rule that some one way or the other what they were doing but here we are trying to read the tealeaves of what they were trying to do well isn't isn't your position in a sense an attack on judicial independence as well not really i mean the court made some decisions and i'm going to go outside the record here a little bit but the court changes and its membership and the membership at that time intended to give employees protections after this lawsuit was filed and with a different number a different number of judges on that court it was through policy they're no longer bound they decided they didn't want to give those protections well it seems to me that once the court decides to give protections it is  and then it can change its mind as it did and so you're not imposing anything on the court by saying at the time you made these commitments to your employees and work and that missed that you had to keep and now you've changed your mind you don't want to make those commitments to your employees anymore you don't have to there are a couple of things about the policies number one those policies were reviewed a number of times between two thousand and the date we filed this lawsuit and there's evidence in the record that mr crean was involved in those reviews and they were never modified to include mr foster and number two mr foster was handed the policies at the time he listened ploy there was an implicit understanding if you're given policies that when you can't become an employee that you're covered by those and at that time the court wanted to cover these people wanted to give them the protections that the legislature was unable or unwilling to give them but didn't d employees and it only allows those collective bargaining rights to the extent that it does not impinge on those rights that's where the harmonization comes in here and there is if there is an almost administrative supreme court of the state of washington meeting on bank sitting all nine judges and saying we want to give these rights to our employees and if they think they've changed their minds they're entitled to change their minds but you know during the time that they gave those rights the employees were entitled to rely and there are procedures for due process rights and notice hearing appeal all of which were not not