good morning please be seated as the litigants know both judges thompson and stall who will not be asking questions this morning will nevertheless participate in the deliberations and decision in this think really simplify and narrow the case for the court first of all i want to emphasize our concessions about what we're not challenging and not claiming as an adverse action we're not claiming or challenging for example the governor vetoed bills many of the allegations in the complaint are in there soley as evidence of motive but have nothing to do with the adverse actions that were alleging so in no way we're asking for relief from the court from the governor deciding to veto he can veto all he wants and the speaker the house was very far in with the remedies and rights he had as the speaker of the house to deal with that issue in fact the legislature overrode those vetoes by a two thirds majority so we're not here bothering this court with matters that can be handled very easily between the executive and legislative branches i'm not here to challenge any criticisms or comments by the governor there's a marketplace a rino a free speech and the speaker of the house is fully committed to robust speech on both sides and he'll take his licks and he'll take his ability to counter those in the court of public opinion so when the governor wrote a detailed letter on june eighth making harsh criticisms of the speaker of the house we have no complaint about that as an adverse action when the governor said that marquees beat his wife or that he was corrupt this as sin we're not here about that at all we will deal with that in the public marketplace of ideas those are not reform and even the terminations is not an adverse action that we're challenging the governor did not terminate marquees so that's not one of the term an adverse action certainly to adverse actions and they're both things the governor did not a third party he pulled back he rescinded he put a stop where he canceled one hundred thirty two thousand dollars and the second thing he did was he very clearly and it's very clear in the complaint i think even admits to it threaten to withhold the rest of the over one million dollars for a one hundred year old charitable nonprofit nonpartisan charity committed to helping at risk children in use have become good citizens those are the only two adverse actions my second set of concessions relates to state of mind i admit and if i lose because of this so good that there are possible legitimate motives for the governor withholding funding for example he alleges corruption financial corruption  lack of qualification that perhaps being a wife beater itself prop that probably should be disqualifying in some give give concern at least so there are legitimate reasons but the case law this court in the us supreme court is very clear that would destroy every race retaliation claim and every first amendment retaliation claim if the mere possibility of a objectively plausible and legitimate nondiscriminatory motive would win the day and certainly not on a motion to dismiss this court is held to the contrary judge hundred percent clear that a jury is going to rule in our favor the jury has to decide that and there's all kinds of procedures that go down the road this is a motion to dismiss so i'm not claiming that you should decide that the that the improper motive a political affiliation retaliation was the motive or even the most likely motive all you have to decide today is it's a plausible motive which is much less than likely it's just plausible and i i your circuit i went and looked at shepheard's you have the honor of having the most c opinions applying bronte your number one you have a close somebody close second i think the seventh circuit your number one and your opinions and you look at the many of them find circumstantial evidence is enough especially at this stage of the case when you have a hyper charged political environment and you have one political party taking every action against the other and then the facts get sorted out later this case we have direct evidence of a very hyper charge i think in the history of maine i'm not aware of a governor making the kind of statement that would veto every bill by a democrat once again i'm not complaining about that as an adverse action but it's evidence of political affiliation discrimination motive is solely in the case as motive so the governor can say those things only once but it's relevant to his motive when he took one hundred thirty two thousand back and when you threaten to withhold the rest which are the only two adverse actions i'm challenging nancy you said that one hundred thirty two thousand was going to be taken from g w and i just want to understand exactly how this for excellence now it's the way i understand it you tell me if i'm wrong g w h then chose to implement the provision that says there will be a center for excellence by creating a charter school means apart from the center for excellence correct a whole lot of things yes ok so that's point one point two does the center for excellence do anything apart from means that authorizes him to spend the money in the budget that's what i'm asking about well there's two sets of money the original funding has sort of a form of that also just other schools this is on top of that and this is in a different provision in the budget didn't have to be there it didn't it wasn't necessary it was something that they kept adding because they thought that the school needed more time to stand on its own two feet it's hard to understand chapter two tw enty seven and i think that's the discretionary funding we're talking about here and that's the regional that's the core money that keeps coming every year the governor had no discretion over that it was the extra money and i understand that was for good will hinkley in the budget there's a different way check it to twenty seven did not exist would the government going to be able to spend this money by giving it to good well i think i think the legislature we authorized to say you can spend money on this school yes in the budget regardless of fact it also i mean there's a connection i don't think they're there they're dependent on each other you know it's a separate set of money dealing which runs a museum right yes bunch of things the governor that goodwill hinkley did not spend that money on the charter school directly it spent it on its own overhead its own operating cost so that it did not just it didn't go to the charter school actually found that explicitly as a finding so on a motion to dismiss it's in the complaint that supported by an independent bipartisan nonpartisan part of the legislature that investigated this and found those facts so at this stage of the case of course the governor can push on that argue that and maybe we'll summary judgment but at this stage of the case  the money was going to go willingly and it did not go it actually says did not go directly to the charter school in the findings of the investigative report there's a related question could you just explain to me the relationship between g w aides and means sure w means have a contract with means that's not in the record that i'm aware of it was in the records it has its own principal its own board of directors and the independent report said it's controlled by the charter school oversees a bunch of other programs this is just one of those it's been around for over one hundred years so it's definitely not the charter school here it's got it's got integrity and independence that completely transcend the charter school which is the reason why if i can just make this final point that no reasonable official could think that the president of one hundred year old nonprofit charity is subject to a political loyalty requirement and that's the only exception that bronte recognizes in this court is recognised and it's always for a public officer official that's an in every court from bronte this court only one time this court ever even talk about it being a private entity and that's the prison a zone a case court the this case raises a number of different constitutional issues any one of sufficient any one of which is sufficient to dispose of this case at the motion to dismiss stage but the court may not actually reach any of the three independent basis for dismissing the claim those being the fact that the retaliatory acts are government speech that the allocation the funding falls within the policy maker exception where artists and or ideological considerations influence the government's actions and absolute immunity and the reason it may not reaching those questions is because qualified immunity is an easy decision in this case the supreme court authorizes the court to get directly to the question of qualified immunity as to whether any clearly established law prohibited the acts that are complained of before i get into that argument i do want to address the point that judge burton was pursuing with my friend on the other side at page sixty four of the appendix which is our initial brief down below  statutory history but there is no dispute in this case that the money the discretionary funding issue was for the center of excellence and there is no dispute that the center of excellence is in fact me ends and you can see it in the complaint itself it's paragraph seventy eight of the complaint this attempt to kind of build a wall between me ends and goodwill hinkley i think is really just kind of a last ditch effort to save a complaint that cannot state a claim for relief and to emphasise that point and we make this point our policy makers action the job description  ploy it means that when determining whether or not the acts with respect to the particular public funding that was an issue here to accomplish a public activity which was public education three public charter school makes it public for purposes and  position then that the governor of the state could make a condition of the university that in order to get funding for the charter school it has to have a republican or democrat as the president our position is that the government when it went and what it is but it is case future discretionary funding is free to make decisions about how it employs that future discretionary funding was the answer that yes or no well i guess i guess your assumption is that is that the private universities receiving public money to operate the public charter school if the answer to that is yes then the government regardless of party is free to make decisions based on public policy concerns regarding the implementation of charter school and also you don't need to know any more about the relationship between the university president and the operation of that charter school though you may need to know in some cases if they were there if there was if there was true independence that would be fine but in this case on the facts of the complaint we have a clear relationship what's true independent in your view if there was if there was no overlap between the boards of the leader of the chancellor of the university i mean i'm not really sure how to case is whether it was clearly established by wall that's a qualified immunity and that's i understand that point if we chose to also decide for purposes of clarifying the law the question of whether there was a violation the burden would be on you right the they're clean the act of retaliation it's got to look at what the nature of the retaliation in this case in this case is withholding unappropriated future funds that are specific and discretionary to the governor for the operation of the charter school it should be noted that me as receives more than a million dollars of other state public education funding that is not discretionary that is not specific to the center of excellence and there's no allegation that there was any threat or there were any actions taken with respect to that funding the funding in this case is only for the which he does not there's no dispute that he will think we operate me as the charter school in fact my friends on the other side has said that in writing to courts twice in this case they set up a low you'll see it page one hundred of the appendix and he said on page seventeen of his opening to this court g d p which operates me ends and that is the public office that we're talking about in this case i'm sorry i'm new to this case you have to help me a little more no problem what what what is the public office i don't understand that the public office in this case is the operation of the public charter school that is the public world that in this case the thirty five a one c three is being asked to undertake there's a governmental role operating a public school and so the office in this case is who is in charge of a political party if it is a public charter school then i don't know if the principal can determine the super to the school district as i think in most cases the principal can be the superintendent of a school district that's not what we have here i think it's actually more akin to that because good will think we as you pointed out operates a number of different functions one of them is implementing the primary one is implementing the center of the other ones are public functions and all setting that aside in this case the only public understand the superintendent of a school district we never held and i don't know of any case this is the principal of a school the funding for the terms what can be conditional on whether it's republican or democrat i think well yes although this court has been clear that my talks about the policymaker exception republican democrat is a shorthand for important public policy goals and the allegations of the complaint establish that there was a heated debate in which both parties to this case were participants on opposite sides as to the advisability of charter schools in the state and accomplished and how their mission should be accomplished so in this case the answer to that is yes and this court has been clear that policymakers rule does not this if they require a ence and its programs it required working experience working with the legislatures legislators and state scene makers and then one of the qualities thought was superior communication public relations skills in representing g w h n means to it public and private constituencies those are all the types of duties that are consistent with what this court has said constitutes a policy that's a public office well yes but in this case and again north lake and north lake is clear from the supreme court that private contractors who are contracted to perform public policy making functions can be treated as such for the policy maker exception i think and you want to address this question about the alleged pulling to take a step to provide somebody with an appropriate funds would be extremely problematic if for no other reason the fact that that's actually illegal and being to provide funds to it that are not yet appropriated so i don't think that can be the basis for six months i think that would have to be a different question the threat to the allegation the complaint is that he pulled back paid payment of funds that were scheduled to go out and not to spend any money going forward that's an implication that the complaint is running a fund but are certainly our view is that  say this in our absolute muti argument makes clear the supreme court in bogan which was a case that came out of this court and i'm sure the court is familiar with it was quite clear that budget making activities no matter what point the process that's you know different point well i'm sorry i don't think i think that's the same point it  the question of whether he's trying to set the budget is one point right question of whether if he's just trying to implement the but the spending expenditure that's been that he would have in the future then you rerun the policy makers option  available to me i will not spend if we want to ignore the legislative calendar and in the conceded fact that no funds have been appropriate this point as we point out the youngblood between case from the third circuit makes clear that when the legislature has as even after the funds are appropriated letter talked a lot about the speaker not being qualified for the job and having concerns about his prior opposition of charter schools that was  specifically saying that that the letter is not a basis for its claims although it is in the complaint and i think that he's trying to draw inferences from the letter for purposes of this case the  the the one point i do want to make before my time runs out is the importance of the qualified immunity aspect there been no questions about that that they but i'm sure the court understands how how specific the supreme court is in requiring qualified immunity and specifically suggest the court should think hard and think twice about reaching out to decide constitutional issues when the qualified immunity answer is clear none of the cases that that mystery cited the speaker cited at any point in this case come close to this type of principle but of course that just raises the question as to what is the alleged obvious that way should in this case and as we point out so logo our c max well a number of other cases from other circuits and no piece from this court comes close to suggesting that the actions here even violated the constitution let alone meeting the burden of clearly established law and i will note that it's also true with respect to the policymaker function we argue that below and we certainly are willing to stand on that the reason you shouldn't reach out to decide in these questions is because if you decide one of the m seven says that or not so i apologize if it doesn't but that's my good faith representation of the court before you move on to this because it would help be helpful to me to know i thought there was an exchange between the governor and the funder alleged in the complaint and the funder said i came with the distinct impression that the one point three million was going to be gone and that's plenty on a motion to dismiss when we have so much of it it's the other side never contested that they made the threat what we have is a in the record is a representation by the funder about what the governor said to the funder yes and do we have anything else in the complaint from the governor beyond the what you said which is that he conceded that he had made a vote of the president good will hinckley who came with the exact same impression what's the compla relinquish president he got a note and had a conversation that led him to believe that the governor was threatening to withhold the one point three minutes how you interpret it and the exact same impression was created with the benefactor who is going to get three million dollars to get willingly and realize that to losing a million the question you asked about the contract if you look in the appendix an author rights are because it already existed and it was already at entity that was well respected that's the repository where the charter school got put but it's not it is the charter schools primarily run according to page one twenty of the appendix to go by the board of separation but here's the point it's a it's a private school because a private school gets money does it make it appropriate for partisan affiliation there's no case law that says i mean that's fine ok i'm just trying to say what the legal relationship is between  means if the point you're trying to make is we can't tell yet on this record that's fine but you are conceding the g w rates operate to me yes you know that's in your complain umbrella fashion but it's more directly controlled by and operated by the board of directors and the principle of the charter school and just last question is could you read any content since your complaint says g w h operates means what you understand the word operate to mean functionally what does that mean g w h does with respect to means it generally oversees it among other operations but delegates most of the day to day operation and the day to day control to a separate board of directors and a separate principal and also the money went to goodwill hinkley it's in the appendix your honor so i did not go to the charter school this money we're talking about thank you very much thank you both al