the very beginning of the right of people to participate in their own governance the right to speak about who our elected leaders should or should not be the freedom to engage in one's own political speech or support a like minded candidate for office or as in this case the right to refrain from doing any of those things but to be married to someone who does and the right to petition one's government by filing suit to clarify these invaluable rights so foundation al to our freedoms and our democracy right so fundamental to liberty that the supreme court has said they cannot be bargained away in a contract for public employment this case involved a state district judge who violated the ri intimate association with a hostile work environment and a threat to terminate associate judge haddock purely for speech that district judge attributed to judge haddocks husband gerald then that judge tried to impose the curer for that speech that is to remedy the situation herself both by ordering judge haddock to silence any further electoral speech by gerald and by forcing judge haddock to publicly support then candidate and so you can suit for damages you probably disagree that they're an arm of the state but if they are an arm of the state district judges and you sue them and they're an official city i think you'd agree with me that you can't get damages from the no right or didn't they are an arm of the state i can only get injunctive relief but that is just a it's my question what kind of a relief are you asking for from the judges in their official while we would be able to get her st amendment rights as a public employee tara county and the district judges terminated her with the ninety days of her being served or to put that more in line with federal court procedure she filed her lawsuit they filed twelve b six as she responded they replied right before the two thousand and eighteen christmas new years holidays and then within three to five days of returning from the new year they fired her this violated her st amendment right to him association freedom to petition our government freedom to be free from political patronage requirements and to the extent any speech attributed to general could also be attributed to her any free speech regarding election and the issues election issues right the supreme court said citizens united is beyond all doubt protected before addressing those specific rights and the tests appropriate to them i'd like to st address the mondale issue the municipal law ability s in the district well st of all unlike most court scenarios the associate judges do not serve a single district judge rather tera county has set it up under the family co statute to where all seven associate judges serve all seven of the district judges so they're essentially forty nine working relationships in development so the confidential communications that you might otherwise expect adopts the district court can review the associate judges ruling in the same way that an appellate court would review a trial court and and so they basically just call balls and strikes pleasure of that is that this does at the at the pleasure of a majority because the th or seven right but of course texas cannot decide by statute to do away with the st amendment rights of these  very important functions of course closely with the u s district i do think there are quite a few similarities to be sure but of course the associate judges have an independent duty to uphold the constitution and the laws of the united states so they they have to act independently to determine the appropriate law and apply a lot of fact they're not there merely to implement the policies of the district judges just like magistrates exercise independent judgment in determining the law and applying the law subject to reversal of course and i guess my concern here is what your position is these are very sensitive positions are very important to the district well i think the missing piece of that your honor is that the texas code usual conduct already sets forth the state policy on that is that judges themselves should refrain from public political activity unless they themselves are a candidate and of course they can do that in favor of their own candidacy but not only the canons themselves which don't make any mention of prohibiting the spouses from engaging in political activity but also there are judicial opinions interpret in the say that there's no restriction on the spouses here we have the result where we have a judge telling an associate judge she has to be engaged in political activity which the canons arguably say she shouldn't and then saying that the spouse relations yes it certainly could however in your case respectfully that would not be election speech or issue speech that would not be something that the public needed to know i think in order to because these are judicial appointments for life certainly to talk about the court i think we're in a modern society now people know that judges and their spouses are not the same people they can hold different views there's been some public couples obviously like james carville and mary matalin who all who held  is certainly there are some relationships that can be so close and intimate for example if someone on staff is assisting with reelection for example that is a huge place where confidential communications and that kind of trust would have to happen the burden of course is on these government employees to improve that and to to prove that in these forty nine working relationships that not only is that relationship  essential to a vital government interest but it is the least restrictive means of accomplishing it as opposed to i finished answering the question i think so your sorry didn't want to cases i don't your honor i did not see that opinion and i didn't see whether that was reversed on the standing issue which took us this land but it well it's gone and that's one case that you are relying on and right i would just say that  you know obviously the court didn't really want to hear the merits of it and i think the reasoning in the case still stands us to the position itself just because the standing issue was held not to exist so you stand by that i do admire your person that judges are not alice in makers even though all the other or number of cases saying that they are i do stand by that position your honor but they are there to independently call balls and strikes and they're not follow that seems close factual i do think it's wrong to decide it for the same reason which is that judges do not which is that the judges call balls and strikes their i don't think it's appropriate to say that the referees in that case were there to implement the specific policies of the district judges on specific issues they had an independent duty to follow the law and the evidence as well i haven't i haven't made it to mondale and i do need to cover have thirty minutes thank you judge poe and may it please the court this is a lawsuit about a judge's ability to control his cases and in about an elected officials ability to control the individuals who exercise power on his  the district court correctly found that judge diane had it held a confidential and policymaking role within the terre county family court and that as a result all of her claims each of which sounds in the st amendment m are not lined up perfectly with counties and so as a result they count there are district judges who serve multiple counties as as arms of the state on the perspective versus if retrospective relief it depends on which particular relief your honor i are certain claims that are pursued only against certain judges for perspective reinstatement only and we don't dispute that that's with an ex parte on here recently are up there with that you're saying that the prospective reinstatement of a judge even though it's sort of looking backwards  question about whether the relationship here the relationship here is crucial because particularly of it applies to politically elected individuals the l ron branch line of cases recognizes that the st amendment rights of a confidential or policymaking employee must bend to the employer's need to select subordinates who will loyally pursue the policies from which they were elected to determine whether judge how to fill such a position as effectively gives the associate judge the same powers as the district judge and section two step two a one dot au two requires the same qualifications that each and it will there are very few statutory limits on role in mumford which we believe is correctly decided separately the court considers whether or not the relationship is confidential that is whether it is the type of close working relationship such as judge shows example of a law clerk cases a year that is roughly ten cases a day in order to be able to do that she needs to have a sit district judge to whom she reports needs to have a situation need to have confidence that she will be  valence of this case how did it interfere with the discharge of a duties such that she would fall within brandy and certainly her honor as judge easterbrook mentioned in the care ask the opinion which i believe judge comment was referring to earlier judges both create and apply policy because the subjects that they are dealing with are matters of public debate and that in that case the example given was whether or not a particular judge was favorable or them to get a protective order that is a very important question that's a jurisprudential matter and if she is working for judge munford asked mr taylor suggests she needs to be sort of rowing in the same direction or judge munford is going to have to overturn a no your honor the record does not tell over the record was similar in soder stram where there was an elected death elected police and legal easy to police chief or share i'm sorry i don't remember which came into office and the confidential of his previous employer of the previous sheriff was the wife of a political corner of flip political opponents nephew and this court held that that incoming sheriff had a right to pick his own secretary because it was a confidential close relationship and the possibility of mixed loyalties would undermine the ability to pursue that that relationship effectively the th circuit the i hear  h firing judge catacomb that basis fall within the patronage exemption your honor that would be up to the discretion of the and the district judges in connacht the supreme court recognized that most general most general government firings are not subject to judicial review and that where there is a confidential relationship considerable discretion is given and that is the two to the government employer and appreciate the candid answer i mean i think what you're saying is the the government decision maker has to have the discretion to have to make the assessment about well other husband or wife in the same page even to the extent they're not is it interfering with my relationship with the associate judge such that the work of the court has been disrupted yes you're on so that is that is the holding of the of cases and it resolves all of the cape the claims here and i want to turn briefly before we run out of time to the hostile work environment claim that's being pursued against judge baka bennett that your honor is a species of the st amendment retaliation claim addressed in comic itself because a hostile work environment is not it's not a standalone thing it is a it is a gloss on the adverse employment action that is unique to title seven and this court held in bro against city in garland in two thousand that i am adverse employment action short of the final employment decisions such as a demotion or terminations is not sufficient for a st amendment claim st st amendment retaliation claim exists at all in terms of getting a st amendment liability then it would be subject to the same balancing analysis that comic employed including the however as the garza decision recognized if you plead yourself into a pickering balances i believe the term used there but n l rob ranty problem it can in fact be decided in a motion to dismiss a number of the cases that judges she can't have a confidential relationship that might be a circumstance that makes it unfair or inappropriate but as at we're turning to connick the question is not whether it is unfair or inappropriate whether the st amendment prevents the terminations here and respect to leave that particular distinction is not supported by the case law for example in tins eve and in gonzales and then sold or straw there were multiple decision makers that were deciding whether or about the st amendment that the county is in full alignment with the district judges on the st amendment issues and as judge duncan's opinion in the garza case held if there is no underlying constitution constitutional deprivation there could be no mo no amended complaint the live pleading admits that judge baka been it is a texas state district judge and as counsel for the state for the district judges articulated they are state elected policymakers they operate in a constitutionally delegated sphere of authority and so turning to the henry b cox decision out of the texas supreme court that then justice don will wrote it splaying the relationship between a county court a county commissioners court and district judges each operates in its own sphere of constitutionally delegated authority and as judge will it wrote then the texas constitution unlike the federal constitution constitution takes madison one step further and includes a standalone xpress separation of powers provision article two section one of the texas constitution dividing it into three branches and stating that no power attached to one can be exercised by another branch and here the core compo nitz of the commissioners court is setting the budget setting the salary on the under the family code for these associate judges on the other hand the family code gives the appointment power and the terminations power soley to the district judges themselves so the county is constitutionally prohibited from trying to influence the supervision the appointment determination or the terms of the appointed associate judges of the district courts and in fact the legislature hasn't acted section one hundred and fifty one point zero zero four of the texas local government code which gives an even further stronger indication that that the recognizing this constitutional delegated spheres of authority and it specifically states that it county commissioners court and no member can even attempt to influence the appointment of an appointed a person and so there there there can be no question that the the under mon el who is the final policy maker is the district judges and they're operating not for the county but for the state now in her brief haddock has asserted a number of arguments stating that the county is somehow delegated authority and that it is shared authority that is attempt that it has the ability to control the district judges in their point of practices or their conduct to their associate judges and this is simply not the case because of the constitutional and statutory design additionally the fact that dion had it was given a handbook on day one does not control and this case in garcia view reeves looked specifically in the context of a sheriff about whether or not a count handbook could change the out will status of a sheriff's deputy and the court said no if you look at the cases in rincon which is a houston th district case in abbott v pollock which is a a austin rd district case there folly supreme court precedent but the they stand for the proposition that a county commission as court cannot assume a duty for the appointment or discharge of a state officials appointee the county commissioners court cannot dictate the terms of employment over the state officials appointee and they cannot contravene state or federal law so just as in the garcia case the county handbook could not change an at will employment status in this case the counties employment hambo could not change could not preclude an otherwise lawful patronage dismissal we cannot trump what those judges want to do with their associate judges and in fact what would have happened if we had exercised the power of the purse or we had tried to defund the position or we had the district judges from the courthouses as haddock suggested her brief while article five section eight of the texas constitution gives the district court's general supervisory control back over the county commissioners court the the final authority rests back with those district judges and they can't preclude all conduct or are actions of the commissioners court but they but the district court has jurisdiction to prevent and deter illegal unlawful illegal arbitrary and unreasonable county commissioners acts and that would include taking away a salary or locking the doors so that the district judges couldn't get in the courthouse until they did whatever the county commissioners wanted again there  prohibited from doing this and i think the question ultimately on who has a duty to protect diane haddix or other associate judges it's not the county commissioners court or the county h r department again back under the texas constitution under article one article five section thirty one says that the texas supreme court issues rules the code of judicial conduct to govern district judges and article five section one a states that the texas state commission on judicial conduct is the body that governs alleged improprieties are violations of the judicial rules and so if there were alleged violations of judicial canons of conduct i  not getting along with other judges requiring unlawful patronage of candidates another things the duty fell on judge caddick who herself was bound by the judicial canons to go and report that to the state commission on judicial conduct in contrast the county had no duty and in fact canon six hundred and eighty six b one day specifically says that the county judge himself or herself would not have a duty when they're administering county business so on the policymaker issue the district judges are fine are the final policy maker operating for the state and no money liability can be attributed to the county and likewise there was no county policy or custom because there was no final county policy and this case the st is the forty nine independent working relationships no case has addressed that specific work environment and the burden is on the government to establish why in that  situation the infringement on the st amendment rights of the associate judges is still important in that context and that should not happen on a rule twelve the motion but the nd critical difference is  i believe in every one of those cases the the court personnel and magic man for himself the referee it was their own opinions that formed the decision to keep them or get rid of them it was not a spouse's opinion so none of those cases involve the intimate association rights of any of those court personnel and that is a huge distinction here are we going to be a place that says if you work for the court  then your spouse has to refrain from any public involvement in politics or are we going to micromanage on a content and identity basis what that's going to be and are we going to use a public job to do it but the other thing that i think we've hit on now with least with respect to the district judges position is it's not just their burden to offer a reason that if it had been the reason could have been the reason and was a good reason they have to prove that that really was the reason and that comes back to you know when you govern there's a right way and there's a wrong way the right way is to sit down think about the vital interests of your office what rules would be the least restrictive means of achieving it these decisions would be made in advance and they would be content neutral without any for knowledge of who would be hurt or what specific political opinions might be affected you'd expect to see those rules in job descriptions policies and procedures manuals and employee handbook minutes of official meetings and their formulation in emails drafts work notes perhaps some tweaking along the way typically courts a few that kind advance content neutral decision making with some deference when it comes to constitutional rights however then of course there's the wrong way which is you do nothing you have no specific rules or standards in place other than the canons of judicial conduct until somebody spouse does something you don't like and then you retaliate knowing full well who you're punishing and what political opinion you're silencing the latter is far more far more likely to base be based on the content of the speech or opinion or the identity of the person then any actual interest of the public office so we still need a fact finder to determine what was the real reason for the retaliation and hostility by judge bennett and for the terminations that followed the filing of the lawsuit because merely stating a reason that could have been a good reason does not meet the burden it has to be the reason it has to be essential to a bottle government interest and it has to be the least restrictive means to be serviced saylor what you are alleging on this is the judge was terminated because judge bennett and the other judges mondale and the separation of powers argument i think the point thing to remember is that tara county pays the district judges to supervise and manage their employees and while tara county certainly cannot interfere with active cases in the performance of a judicial function by the judiciary a shared executive function like the management of employees is completely different and while you certainly certainly could have done sued to fix the situation place they could have said you cannot abuse the constitutional rights of our employees and if you do we're either going to go back to one associate judge serving one district judge or we're not going to fund the repla can change certainly some version of these seven judges run for election every two years also she has thirty years of experience in family law and twenty years on the bench and she was very close to reaching full dusting of retirement and yes i do think she would go back if she were reinstated and she would maximize her retirement and it would certainly be easier to do that than it would be to practice family law attorney county where she has an ethical obligation to disclose to every client that she cannot represent the minturn county family courts because she has a conflict of interest because she was in forcing her constitutional right if during the next cycle all seven judges are replaced with new judges thought if four of those judges voted to terminate her and if they did and if they did not do so on an unlawful basis yes they would have that right and other questions