case at the motion to dismiss phase to reach the sweeping or is the conclusion that all assistance its attorneys in the state of maryland may be fired for expressing support for a losing candidate outside of work important to do a case specific in fact specific inquiry and look at the employee's position and whether than you should determine whether it's a policy maker for example to follow up on  a from the fifth circuit assistant district attorneys vested with broad discretionary powers the actions of assistant district attorney bana state system district attorneys or representatives of the district attorney perform all functions is therefore essential that the district attorney have trust and confidence in the assistant district attorney the district attorney has a loyalty of the assistant district attorney then the ninth  circuit public agency would be unmanageable if it's had to retain his political enemies in positions of confidence or positions in which they would be exercising discretion in the implementation of po hold assistant district attorney as e o was a policy maker then you have the sec sark it in holding that the job of public defender is not a policymaking position the supreme court noted that a public defender's responsibility stand in contrast to the broader public responsibilities of an official such as a prosecutor so we hold that the job of assistant prosecutor is a policymaking position and then you have the seventh circuit public prosecutor such as a state's attorney exercises broad responsibilities and the performance of his duties prosecutors client is not an individual but society as a whole contention that is function was purely technical and ministerial and therefore political affiliation to be an inappropriate criterion for employment that assistant district attorney could conceivably operate in a legal technical matter they've all reached the same conclusion they've all employed parallel reasons why should we go out on a limb and create a conflict well here the question is actually a bit more narrow because  one thing is all of those cases were actually decided past the motion to dismiss phase i mean all of these cases actually almost all of them have distinctions for example in when the sit monk's the sixth circuit case and as well as the third circuit case momo vs was his rank there the courts found that the assistant district attorney or the assistant prosecutor could actually perform all functions by statute of the district attorney and in fact in the pennsylvania statute a tad when a district attorney is incapacitated and then an assistant state's district attorney can perform all those functions i mean the ninth circuit reached the decision in fazio where yes but there are some variations and it should be noted that the largest group of prosecutors in the united states which are the assistant u s attorneys and the department of justice trial attorneys in fact and not be fired for political reasons and interest in lee that think the question for the court here is more narrow which is on the pleading stage which is no which is not any of those cases whether it is correct without doing any investigation what for the court to hold what the responsibilities of hundreds of assistance to its attorneys in maryland encompass i mean here in fact even the case acquittal which both the court and mr moseby know in the briefing actually clues the language that the assistant states or the system states attorneys act subject to the discretion and control of the state's attorney there is no evidence here that they can be that the state's attorney can be personally liable likes such as in jenkins for the sheriff for the actions of the assistant state's attorney i mean here i think personal liability is that it's a question of  bad mister the elected prosecutor cannot come back into court the next day and say my assistant was without authority the court's already under the or paragraph eighteen she alleges that she attended a number of community events because of her position as a community prosecutor and as a community prosecutor she often went to local events to represent state's attorney's office so by her own pleading she seems to separate herself from perhaps the average line prosecutor to be someone who has even more responsibility which would about her own pleadings but the pleadings also said that she never affected the policy orientation of the office i mean you can attend a community meeting and have interactions with that but the community just does the sheriff's deputies did plant just as the jailer does a neighbor says vernon that does not necessarily mean that you are holding either more responsibility or that you're somehow more so an alter ego i think again it's very fiske a specific and  specific and this court has held that just contact with the community is not enough and so i mean again this is just i'm president and the fact that it's in a very early stage and just moving on i think coffee and everything which is far but at the same time her current laws and elections have to mean something you have to you know have to mean something it would seem to me to be somebody who isn't a valid supporter of my political opponent and his views of the off normally has three political deputies or as it was understood and then under the and in fact now in the organizational chart there is a chief deputy who organizes the three deputies and below that there are units or there were sixteen units and below states attorneys and understanding that almost any person in any public office can somehow subvert subvert what you're trying to do the question is whether there is something by virtue of being an assistant state attorney as opposed to some other job such as a jailer that would mean that you're a political affiliation or political associations and here just to be clear the political association alleged is not that she explicitly criticized mrs moseby but was rather that she supported the sitting state's attorney and talked about some of the accomplishments that he had during his tenure but one thing that the court said an hour which is important it has actually was asked like one of the arguments was that someone who has a potentially different political affiliation or political season could undermine the entire process of the government and the court was ted on page three sixty four more fundamentally however that argument does not succeed because it is doubtful that the mere difference of political persuasion motivates poor performance new nor do we think it's legitimately may be used as a basis for imputing such behavior cases and others would put a premium on prosecuting pornography or others on white collar crime and that's a policy laden decision and that's only one but there's an overall emphasis that the office is going to put on certain kinds of cases and it's going to set priorities and setting those priorities as a policy matter and if you've got people who are adamantly opposed to the person that actually won the election that can create managerial problems which is why your honor and i see and i'm cutting into my rebuttal time but it could some of your time for you feel free to go here but it again depends upon the position in just the idea that you know a trial attorney in the department of justice who has important og or fee would not prosecute case when the attorney general has said that there is you know an emphasis on that you know on prosecuting cases that meets that certain criteria i think to most of us is unthinkable because prosecutors and line attorneys have a general duty i mean they have a general duty to perform their job and to implement policy they're not making policy miss mostly for example can say we need to prosecute everybody who has one ounce of marijuana on them and all of a ses would have an understanding in the office that they need to fulfill that responsibility they'd they don't have discretion to not implement those policies robert what you've got is an ideal picture and i  your honor understanding your position again and mean these are all professionals and and fact as well alleged in the complaint in the past one preacher should just mean lost to greg bernstein and miss most be herself supported she was allowed to stay in assistance states attorney and in fact over one hundred assistance to the attorneys stayed in the position and continued to perform their job under a different state's attorney and i'd like to reserve the rest of my time for well so the language is from bland to it says that there are certain positions functions are such that party affiliation or political events is an appropriate requirement for a fact of performance of the public office involved such employees may be terminated for speech constitut political disloyalty to their employer so here again i mean this case is a little bit different at least in our view because in terms of political disloyalty this was larry's speech was actually support of the sitting state attorney she could have been according to this i mean you'd be a now almost impossible situation if she had expressed support for ms must be she could have been terminated back in the primaries she says she actually expressed some support for her boss there is no  be and the like you know we do redo still have a federal system and there are some you know there must be some limits to the ability of the federal courts just to jump in and tells them tell us the district attorney or state prosecutorial office exactly how it's to manage its personnel policy just from a standpoint of the proper allocation of state and federal authority that aspect of this case concerned state's attorney's office was not a prosecutor but if victims rights advocate and they're the court of appeals held that there was a valid first and then make claims for dismissal based on political patronage and free expression that may be the point i mean judiciary doesn't have to be a nerd in these kinds of cases and the question i think i'm asking is that you know given maryland sovereign interest in these kinds of matters isn't isn't  it's not unfair to expect the state course rural maryland courts of very very good and it's not unfair to expect them to exercise a primary responsibility for the state's attorney's district attorney's offices within their own jurisdiction all i'm saying is you know i just don't  the framers constitutional structure al about yes your honor i mean in some ways that ties into our third allegation of error which is that the district court dismissed one of the state law claims finding at first the secret was in a better position to adjudicate one maryland declaration of rights article forty claim but not the other in some cases that could be appropriate again there is an idea that our federal courts are have many more first amendment cases maybe more familiar with the contours of you remove you brought it in no it was brought in federal court in idea that  would would have an understanding of the contours of the first amendment because the more familiarity and the application but yes i mean parts of these claims could be brought in state court here we would say it's generally clear that this is something that it doesn't appear that the maryland legislature intended at this result and in fact in maryland statute public employees have a guaranteed right to participate in the political process that stated as three dash to a four of the maryland personnel and state pension section so i mean here there is actually an expression by the maryland legislature that employer public employees should not fear at least outside of work i mean one condition is that it's outside of work should not fear in gauging in the political process i mean in that case it seems that the proper test would be more of a pickering test for anybody who's not in a true for assistant states attorneys in baltimore city like the deputy sheriff that this court found to be policy makers and jenkins the system state's attorneys may exercise the powers of an elected official here the state's attorney they play a special role in implementing the state's attorney's policies they stand in the shoes of the state's attorney and they have the power to make some decisions that actually create policy at the very least this is a textbook case for qualified immunity the appellant status as a policy maker activity displaying that same political affiliation and even if that were not the case again on the free speech claim this is a textbook case for qualified immunity starting with the free association claim this court has set forth a two part test from the start case to determine whether an employee qualifies as a policy maker under the brand exception the first step is at a very high level of generality is this the type of office where there could be room for political disagreement about things and here in terms of prioritizing cases in the states attorney's offices judge wilkinson was saying well when to bring charges when to enter into plea deals at that first step i think it's clear a broad general level there's room for political disagreement and then the second step is based on the powers that are inherent in the office does this position resemble a policymaker privy to confidential  automaton or performing some sort of ministerial dues and that's you know that's just not the case your system district business has all kinds of discretion her discretionary powers to an assistant state's attorney and also the allegations in this particular complaint by some of you are pointing out make clear the that the plaintiff here was exercising some of that immunity point hard to say they have it would not have qualified immunity given all the law that's out there that's right your honor to give them both their own but also all of us all across the country indicating that these a status of assistant state's attorneys under the l rod exception so i think it could make some sense for the court to exercise that discretion here and decide the constitutional question but of course if it also this is a clear qualified immunity case if it would like to go down that route and there's a qualified immunity point this court had a decision clark versus brown that held that assistant district attorney i believe it was in west virginia it was not clearly established that that individual was a policymaker and since that decision it's only become more likely given the case law in other circuits and here  and under state law the cases we've cited in our brief explained that the state's attorney has the power to delegate his her authority to any assistant state's attorney so that means that at any time attorney under maryland law can be delegated any of the powers of the state attorney stands in the shoes of the state's attorney whenever he or she wrinkles in the state but most inherent in most of these positions is the discretion as to which cases to investigate when to plead out a case  country regardless of what jurisdiction you find yourself and these these are these are not ministerial positions they are they just aren't there they're filled by people with a great many public responsibilities and that's why the supreme court differentiated between public defenders who said we're not fal ministers but he said that's really different the supreme court a public defender office is really different from a prosecutor why because a prosecutor in a system prosecuted not only by not somehow a policymaker just doesn't have it i think that's right and i think looking at the cases from the other courts of appeals that have dealt with this question you're right judge wilkinson that that the powers  e similar across the board those courts were you know relying on the same types of things that we have here and i think it's also important to no that the i mean you're right that the systems tourney's are exercising essentially the police power of the state by assigning charging documents making charging decisions that these are not ministerial  in any way shape or form and even if there were any question about that as i mentioned earlier if you look at the allegations in the complaint about how the plaintiff here in takes great pride in the charging decisions it served as a committee prosecutor  we've not touched on that you want to i do want to just mention on this issue of the whether the free association and free speech claims are dispositive way and i do want to respond to the argument on the other side that bland was just about political disloyalty to an incumbent official as opposed to a newly elected official coming in blanche for that proposition relied on jenkins and jenkins the situation was like the situation we have here where a newly elected official came into office and dismissed employees who had campaigned in favor of that newly elected officials opponent in the election and so the term political disloyalty i think was just using it as a shorthand for political affiliation with an opposing political  briefs but i think we understand your case thank you thank you so much  your honour's understanding this court's concern about policy makers just to know from the district court's opinion there is not a distinction between assistant states attorneys who serve in the  community prosecutors or any prosecutors or any other insistence to attorneys i mean this is an incredibly broad rule that set forth and for such a broad rule and every other case it has made it past the motion to dismiss sta personally because the courts there at least wanted to understand what the specific responsibilities of the system prosecutors are one thing that we touched upon but didn't necessarily explore which is how the balance would be applied here again obviously there could be cases where the type of speech is so outrageous or so disloyal it would be obvious that this person is disruptive and that the balance tips decidedly in the government's favor but in fact many of the cases even the cases cited by mrs moseby show that pickering balance is balancing for policy officials or even if you find a policy officials are appropriate for example in bonds the employer there was a supervisor and tried to block grants the employee lost under pickering not because he was a policymaker which i think all sides conceded but because of the fact that his speech was actually disruptive and parker was that assistant to a municipal manager there was no dispute that she was a confidential employee her speech concerned as a potential violation the open meeting act again the court found that the pickering balance weighed in her fever and in fact in the eleventh circuit  that actually held that employee who campaigned for the imposing and had a right to free speech which outweighed the share of interest in suppressing it and there the court found instructive the fact that the contradicted evidence demonstrates that following the election and before gallagher that there the sheriff assumed office steaua sure gallagher that he would be loyal work harmoniously and be fully supportive by contrast one of the cases that is sated for example  own and implementing policy it's sometimes done in different ways and in subtle ways it doesn't always take policy differences between one or two prosecutors don't own policy for auditing so i think that saying we have to wait for actual disruption in the office to occur are really not only imposes of managerial burden but says but overlook the fact that pursuing different policy objectives is often something that's not the easiest thing in the world to detect you seem are concerned with approaching the picturing balance in that way yes your honor the exception here though is that there is actual historical evidence from this particular office that assistant state's attorneys have stayed in the position i mean in two different administrations without incident they in fact miss must be herself had done it so in some cases yes it's true true that there could be potential disruption because of some kind of disloyalty which is kind of the fear and which is that somehow political association might lead to poor performance but that doesn't necessarily mean that that is the case and it doesn't necessarily mean it's the case here where we know in the past that tourney's have stayed employed through different states attorneys and all have continued to perform their jobs finally just as we're all those individuals that you mention have this type of political association or to perform the state's attorney's job again in the past patricia jessamy and greg bernstein apparently did not think it was necessary and kept all of the state's attorneys but again on the record befor its discretion in dismissing the state law claim under article forty with prejudice the supreme court's been clear in united mine workers and then in kearney and carnegie mellon that when the court dismisses all the federal claims then generally you relinquish jurists diction over