well here the next case on the calendar jacobs jacobson vs kings county democratic county and  back to continue and ultimately face a federal jury the court below identified a gating issue and got it wrong and the gating issue is that the military rules that were violated which in this motion to dismiss have to be accepted as true given the documentary evidence that is attached to the complaint the court below said there were internal rules and from there the case ended and that footnote for the court below and that's wrong because exhibit a of the of the complaint procedure for of the kings county democratic party says that they will not endorse or nominate anyone who has not been found recommended by there's judicial screening panel i ask you this surely you understand that argument the complaints alleges and i'm quoting that have any practical chance at being elected to the supreme court within kings county to support an approval of the case c d c see is necessary but then it also says that if i can quote unless doesn't that we know what i just quoted does not that seem to suggest that that candidates can in fact be be nominated even if they don't have the endorsement if they that you know politics can be stupid and constitutional it's funny our case isn't about the executive committee discretionary really choosing or not choosing to endorse and then nominate are cases that if the county committee and they weren't obligated to do this queens for example doesn't do it but in brooklyn they decided to look good to the public to limit themselves and to create this organ called additional screening panel would use to exist before but in advisory capacity in two thousand and three because of the events that occurred kings county democratic party to regain trust the public trust decided to make their screening panel mandatory and  it is that mandatory component because if you have a justice cavanagh just guided in the manhattan community access case vs heller that there's a state action doctrine and you were required to  here the kings county democratic party itself by its own rules in two thousand and three and its exhibit of the complaint at person starts with procedure one and procedure for it says they ndeed i just said that i agree with you on but the moment you're convert them to state actor then the state the state law just sets up the process for the selection of delegates and that and the meeting of the  convention delegates are selected through the election process and there's designating titian's a distributed throughout the throughout the respective areas and the delegates and assemble the fact that the delegates may choose among themselves to bind themselves to a particular screening process whether it's a whether it's a political party or another independent party as has occurred on a few occasions with which i'm familiar that they're perfectly free to do that aren't they it's not it  th judicial district state new york for the supreme court does it need a convention and i say i'm going to bind myself to what my county chair says i suspect that's not unusual mr boucher and you like both know that so so does that then make me a state actor because that and does it make the county chairs the actor well let me let me parse this a little bit if you will to the case at hand which is certainly the county committee when it's acting in convening a judicial screening panel to nominate supreme court justices they are a state actor now the only question really investigating issue is the rules of the judicial screening panel which we allege were violated there were mandatory aren't those rules part of the state action and i submit to your honor and that's where the court got it wrong willow exhibit  four takes it out of discretion they can he says we will not they are saying kings county just state actor in artillery and it worried if it's mandatory internal rule that's not but this is not internal party rules because it's not about whether a person within the war mandates was a section four of the what they decided to do what's on mandates that they follow that particular procedure they've not you said they did on their own they good but the fact that the state gives them that power to create whichever procedures they want to create with as part of the state theory than everything the state actually because the state broadly gives them power than any individual political decision they make as a party then said the traditional exclusive function of the state which is to hold elections for governmental officers that's what we're talking about it is a very rare situation it's a narrow cut it's not a delegation to the screen a green screen a comm place it plays a role but it but they're not the internal rule doesn't say and the screening committee shall be the del again it's as required under six dash one to four of the new york election law it doesn't substitute t the state that they are going to share that power which was given to them as just and be a state actor in that function they're going to share that power with a judicial screaming power didn't have to but they did and they and they  down it's it's exhibit a procedure for and it says we will not endorse or nominate anyone of the judicial convention that delegates could even vote on we will not put the menu together until  panel has as recommended and it is that action which gets us past the gating that makes the judicial screening panel part of the committee the county committee which therefore makes the violation of the rules have to bottoms conceded this is not a ballot access case the plaintiff does not seek remedy with regard to the ballot and clearly there's a dividing line in the case law between those cases where you're dealing with the internal affairs of a party which are clearly protected by the st amendment and where the party steps over the line and performs a state function in nominating people to the ballot he concedes this is not that's not this case  there's no constitutional requirement that any particular selection process be followed as mr boucher concedes the king's county democratic committee could have done what they do in queens which is have no process at all they could have they could make a decision in a smoke filled room as to who they want to nominate and the chairman of the party could come out of the room and denigrate any candidate he or she wanted to denigrate to be no constitutional violation he concedes that what about the argument that it's illegal to violate  mandatory rules that are adopted pursuant to tory authority therefore that's an argument against your qualified immunity a these rules and even if you accept as true that the that the screening committee may have violated one of these rules most of which he actually misreads if he violated one of those rules that doesn't create an one thousand nine hundred and three claim with regard to qualified immunity which is another reason as your honour's just pointed out in the case prior to wars in order for him to get beyond the qualified immunity he has to show that there's a clear case law relating to the specifics of this case to demonstrate that there was a clear precedent that was violated desk clearly not the case here as he conceded in the court below ri said this is a case of st impression in addition to those reasons there's no property interest the plaintiff has no property interest in her position and there's plenty of case law that says that and also there's no class of one theory he she perceives that a class of one claim and the supreme court has indicated in any quest that a public employee does not have a class of one claim  now during down into each of these issues growing getting back to the state action there is numerous supreme court decisions that have held that a party in deciding how to run its internal affairs and even in the nominating process has a st amendment right to develop its own procedures and those cannot be mandated by the state when the when the party steps over that line and is in is the process of actually placing people nomination on the on the ballot in the state provides the party that position at that point they may be they may be a state actor the screening committee is at least three steps removed from that the screening committee does not nominate the screening committee recommends and the only provision in the rules is that the executive committee of the party cannot endorse a candidate that the screening committee has not found qualified or recommended but at the endorsement process numerous courts have said this the endorsement process is not a state action so even the act of the executive committee to endorse or not endorse in the committee is not state action clearly the actions of the screening committee in recommending or not recommend you cannot possibly state the state action and as i said before there's no right to a particular process lopez torres makes it clear that the decision could be made in a smoke filled room if that's the case the fact that the screening committee is alleged here to have not strictly follow the procedures cannot rise to a constitutional court with regard to the property interest upon taro schwartz levine m indorsement of a judicial candidate with the electoral function performed by publicly look the delegates at the judicial convention the executive committees indorsement of a judicial candidate is an internal for judges in in kings county and isn't that enough and why isn't that enough after the white primary cases to a one state action but the white primary cases obviously involved class discrimination the supreme court upheld that system and said that it was constitutionally valid so it was really not a case that addressed the state action argument the state action issue because it was the case itself was a frontal attack on the constitutionality of the of the nomination in traditional convention system in brooklyn sirrah g is a case of this court which we submit  the decision is in into rule part of the election process and in syria gee the court pointed out what instances you might find there to be state action involving in that case the king's county republican  committee there they said well if the county committee is functioning in picking who the nominee of the party is going to be in a special election that constitutes that to constitute state action if the  party is going to actually distant turman whether or not you nonparty member can be a candidate that may constitute stay action but following surge reasoning here we're talking about the democratic county committee's indorsement decision which is not an integral part of the electoral process there's a constitution there is a judicial convention nomination of the delegates vote on those if in this case judge jacobson wanted to have her name put in nomination she was free to do so as the supreme court pointed out and lopez tourist if wanted to go ahead and petition to get on the ballot she was free to do so so there was no impediment at all imposed on her ability to gain access to the ballot issue chose to do so so we submit in  consistent with syria consistent with lopez torres the decision of the district court was correctly decided should be affirmed thank you thank you screening panel its end product was only going to be about the internal workings of kings county then it was internal matters however if internal matters affect state traditional state function exclusively done by the state which is elect and it was because they said so and they said it was mandatory i'm says we were just agreed therefore what they did was state action and when if it's and if it's state action it must pass constitutional muster and to your point  chief judge about the qualified immunity if it's mandatory rules there is no discretion discretion comes in when there is you have some range of options if it says that i shall not b in exchange for no breach of confidentiality even though she complained it was already something taking place in her letter that therefore took her out of running for endorsement or  election or anything so this entire conversation about delegates and she could run a delegate slate is irrelevant what we're coming to you for and the property right is a reputational capital other than life and death all we have in between  reputations and if that's not a property right i don't know what is and there's a defamation case which is under equal protection class someone because for each of the rules violated everybody else got treated fine in the same position she got she got gotten decided as judge hall below noted the gating issue kings county decided that they were going to share their state power and they are a state actor because even lo said kings county democratic party's of state actor this has got off because of the st amendment excuse and as an appropriate excuse but then nobody said they want a state actor so they are a state actor when they're doing this function panel was part of that function those mandatory rules could not be violated they were violated and hence we we believe your honour's that that this court should reverse the court below and this and i ask you something am i correct your honor we're bringing we're bringing we're utilizing the the old like analysis but we go back to nine hundred and twenty three dollars which started this class of one because when you have state action and it is a class one so you have the plan of versus the comparative and they're identical in every relevant respect doesn't have to be their age size weight but they're relevant for each rule they're identical and you have the vindictive and we've identified that as well in the complaint you know she cut the fees of some of the screeners she ruled against the partner of frank said the other county leader in the long island college hospital case when he sought you know relief and that's the case that has you know taken to hospital and has become a half a one billion dollars boondoggle ok so as a result that's the answer i'm sorry with respect to clare your honor i would say that if it helps us i'm adopting it and if it doesn't i'm going to defer to your this plan in this particular panel has enough wisdom then way way past me so i'm just saying on a motion to dismiss political bosses from not playing with the one core exceptional the only reason america's exceptional judicial independence and judicial independence isn't important when you're a candidate it is really important when you're an incumbent because you can even go politicking so when the incumbent is left without a shield without an advocacy and they can be chilled as as laura jacobson was you just heard about you