good morning everyone i mean it please the court my name is jennifer geisler here on behalf of plaintiff appellant karen valley i would like to reserve a few minutes for rebuttal right you're responsible for time but i'll try to remind you ok super thank you so much in this case which involves claims for first amendment retaliation and equal protection we believe that the court  trial court took an extremely narrow view of the allegations in our complaint and basically concluded it was nothing more than harsh words defamation and that we were  retaliation are you talking the first amendment right to equal access what are you talking about here yes the retaliation claim ok and and also the other claim to i think that what happened was there were other allegations here that were not included in the court's analysis perhaps so we're not alleging that you know people can't criticize each other in a public forum or anything like that but in this case there was a lot more going on than just that well let's start though with ok you claim that first you there's a violation for first amendment right that you're guaranteed equal access to information that county officials distribute to other media outlets right yes ok it seems to me that branzburg doesn't really support that position that it says it does not guarantee the press accounts to right of special access to information not available to the public generally so it doesn't completely address it but it does seem to be that there is some support for the government's position that they don't have to give they don't have to give everything that everyone is entitled to the same and apparently they didn't really view your client very favorably and probably not even that would gentlemanly and so they said well i'm not you know why are we going to give this to a person that's just not going to responsibly report it and be nothing but trouble right that's exactly what your best case that says if that's true that they have if it's discretionary that they have to give everything to your client under the first amendment that they give to other us well and i don't necessarily disagree with that that's why i'm saying we go beyond that because they were denying her access that the public would be afforded not just other news media outlets but i do think that the quad city community news service case is not specifically where she denied that the rest of the public  t she say that in her she yes and what is that so whenever she would try to contact the the county government offices to simply get information she was told that by staff we are not allowed to talk with you we will be fired we can't return your calls in fact they didn't return her calls they wouldn't give her information that someone else could walk in how do you know someone else who walks in  while she was asking not for privileged or confidential information i think election i mean is there from the federal government we know there's there's a fully a procedure is there such a procedure that applies to the county that she attempted to  follow i don't know if she did up well you don't know then what's the allegation you're trying to tell us that she was denied information that we give it and everybody else but now when i ask you what did she do you don't know so where's the allegation and where in the complaint is that  n sure she would ask for information that such as press releases that were given to other news media outlets that she became aware of after the fact that were not given to her well by or ok you've moved off your original point them because this is information that you say is given to other news outlets not information that's given out to members of the public stay focus tell me what exactly it is that she's the  denied any information whatsoever so if she goes into the hall administration and asks to speak to someone from the human resources department or the sheriff's department or that is office she was told you valley in effect we can't talk to you that and how was that how is that trance cresson something that she would get as a member of the public i find it i think that we don't don't tell me you don't know or i find it and think that that's a legal claim if there is a public information procedure or ordinance or statute that applies to the county and you can point to that and say she followed those procedures and was denied what any other member of the public would get that might be different she's free to bring a public information request process but that's not what this lawsuit is so it sounds to me at this point like you are speculating as to what other people would get but haven't told us exactly what she has done that denied her rights that other members of the public would get for example she requested a report from law enforcement that had to do with  a criminal act against her and she was told that they didn't have that and then later she was given a report that was redacted modify from what she had been provided the or even if it's your police report the police agency procedures you have to follow so i don't disagree with that but i think to be completely set out of the county government is goes legal obligation for the county to give information of the members of the public i have to assume there are legal procedures to pursue this lawsuit is a claim that somehow your client has a first amendment right to access to information with with allegations that i have to say are pretty unspecific in terms of exactly what it is that gives her the entitlement she's climbing judge callahan has pointed out that supreme court case law doesn't really seem to support the proposition that anybody who calls herself a reporter is entitled to things and so i'm really i'm not saying that there's not a claim there some place but i think we need better understanding as to exactly what the claim is and what the basis for it is and part of what i had hoped for and i'm requesting here is if our allegations are deficient i think we should at least be getting the opportunity to amend the complaint which would like usually when there's a request or when the complaint we are told what it is the amendment would be so we can decide whether it would accomplish anything particularly when that and i'll appears to be based on the notion of futility and i didn't find in your brief a specification of exactly what amendment would would cure the problem can you tell us today what amendment would cure the problem well at least to the issue that your honor is referring to it would have to do with the denial  to information that's available to the public and other news media outlets and the fact that she was what specifically i mean you can't just pick the general sure and and that's something that we can specify if she went in on such a such  day and was told and basically it has to do with her going and asking for information about events that are happening in the county and whether she made requests the people the question i'm posing is what establishes the so called entitle men you tell us that everybody else in the public would be entitled to get this well that's the piece that's missing what is the county public information ordinance or statute that establishes the rights you claim she should have and if that's what her claim is why doesn't she prosecute bring a claim under that public information ordinance how is that a first amendment claim well i think that in relying on the quad cit case and i believe that i did cite a local ordinance and it's not on the top of my head but i will check my notes while these folks are arguing if i can move to the fact that defendants argue that their speech was protected in this case and it's our position that what they did went well above and beyond defamatory statements and harsh words and it's not the type of thing that is protected speech we've talked about the denial public information press releases targeting her advertisers and threatening them that if they continue to advertise with her they would have difficulty doing business and sound which is the county that strongly and plies the use evidence miss us we actually have a declaration from a local businessman and selling these bespoke county who declare that he was told by defendant hill not to advertise or support his business or he would have problems doing his own business in the county that is a serious situation because he's misusing his power abusing his power that implies government sanctioned that and when she went to get a copy of the report she got the runaround and when she did didn't get a report the deputy that was helping her said you know this who she has spoken to before recognize that things had to change in the report and when she had called for help worried about her safety she was given the cold shoulder and had no confidence whatsoever that they would protect her if indeed there was a serious problem so she had to move  several times so this type of situation where she is targeted both her business and her family to censor her reporting in the  amendment the requires foresman to give special protection orders she wasn't asking for special protection and i'm not claiming that that that that is something that we are alleging she was just asking for help because she was afraid  was going to happen to her so it's our position that we should have an opportunity to amend the complaint go back down to the trial court and pursue these very important claims so that wants to print now if they don't like what she prints they can respond to it but that's not censorship sure but ruining her business by taking away her advertisers and financial support causing her to fear her personal safety and moving several times that jurors their initial well we had several state law claims which were dismissed without prejudice by the court so this only concerns the civil rights allegations so we'll see what happens after your honour's decide this case and with that i'd like to reserve the rest of my time thank you know people sit at the table on their own nervous as they watch their colleague screw up you will get five zero i do want to pick up my guess on a couple of the issues that were discussed one relating to what the nature of the claim is here and the second relating to the amendment request it's absolutely clear that the claim that is being made here is one to a supposed right to equal access that with other media the claim that was alleged in the complaint itself  paragraph nineteen which is an e r one o seven is that valley has been and continues to be denied equal access to press releases is denied equal access to county officials and their staff by phone is not allowed to speak to county official or staff by phone and has not given substantive responses to her written requests for information unlike other news reporters news agencies all in violation of her first fourth fifth and fourteenth amendment rights the problem at bottom is that there is no constitutional right to equal access and the courts have held that the supreme court has made that clear in cases for example  that was clear from her briefing from her from the complaint but it was clear from the briefing and the way the drug court the district court analyzed it that there's sort of two separate claims here one is a naked equal protection first amendment claim that she's been denied this access on th single heading and her opposition to your motion to this man's right i'm assuming you're taking the position that was waived that was waived in the district court made that clear as well but i'm saying the the nature of her pure first amendment claim is really this kind of equal access slash equal protection type of theory that she's been denied material that others of have been given and therefore that's it second is the first amendment will go to correct i'm sorry she's never been able to well she was not given leave to amend by the district court she's had several opportunities to amend we had a meeting just saying ok so we're supposed to look at it so basically tommy for you to prevail on that point you there's i was the trial judge and i get this that it's there there's a difference between when you look at something and you say this dog don't hunt this isn't a very good case as opposed to you can never state a claim so tell me ok she absolutely as a matter of law cannot state ok plenty on because there was a little bit of throwing things against the kitchen sink yes a fair amount of that and so the reason is because taking the two claims that she has the first does simply does not state a legal claim no matter how much you dress it up with what the information is well let me follow up on that because  do agree as to most elements but there is the allegation that you read with regard to press releases and being denied the same thing that's given to everybody else i don't know i assume the county probably e mails them out  now different people within the county have a i mean we go into the facts but different people have their own lists of whom they send releases sometimes it's just in response to somebody requesting to be on the list interestingly miss bailey never requested to be on supervisor hill's list but i'm not sure that if she had he would have voluntarily said in any way i look and see not a not a decision or court but the case out of hawaii which rings to me because it's my neighborhood at that point the court the district court drew the line between having to answer questions a given a reporter and denying him the ability to be there to report on whatever it is the mayor said at the news conference and and that line would suggest that maybe if if these press releases are generally sat out is denying her the press release more like not letting her down the press conference i don't think so denying the press release is the distinction that i think eric a made which has been followed in the other cases is that you can't deny somebody essentially access to a public forum it's more of those traditional lines so when the mayor held use the city hall and his office to hold public meetings you can't pick and choose as to who can attend those meetings at least not without some you know compelling interest which was not stated their press releases are really just a nother means of communicating voluntarily with the outside world the you could have your secretary call up every reporter or every individual that you want to speak to and say hey we've got the following information for you that's clearly by the case law is something that says that you don't have a right to equal access to that because that is just the speech of the government official deciding whom he wants to speak to and whom he wants to receive his messages a press release is no different than that it is simply a voluntary statement being made by a government official selectively sent out to those people who to whom he or she wants to communicate so i think that is covered completely by the exist the other cases that say that there is no right to equal access to that kind of information while it's being sent out presumably through government resources and i don't i don't it's any different using it government telephones so how is that but the government telephone i guess on one level requires affirmative action and taking somebody has time sending out an e mail release or adding somebodies email address or release that goes out and may well be posted on a website how is that really different from using the space in the mayor's office for holding a news because i do is a voluntary act that does take time it's not a question of using government resources and guiding this reporter was a voluntary act and i didn't want to do that i'm sorry but mayor fossey in that case would have said inviting the reporters a voluntary act did he didn't need an invitation it was a public event that was open to all the press releases are by definition not sent to all well if they are posted yes they would be a public a public thing and if for some how they decided like in the  frankly i think it's similar to this tweeting case that involved president trump that was out of new york if there was a public posting and he said we are not allowing this valley to access the public documents that are there are publicly posted to for all the rest of the world to see that would be the equivalent of the denial of access to a public forum but a press release is something very different a press release is the affirmative act of deciding who you want to tell some news to it's no different than deciding you want to have an exclusive interview with a particular reporter it may be a lot easier and it may be a written form rather than a verbal communication but it is that same kind of voluntary act where you get to pick and choose to whom you want to send your message so that is the essence of her complaint and to get to the point that you are asking about there is a public records act requests you know in california a requirement that you have to issue you know comply with requests for public documents the essence of the complaint here is that what happened was that all the government officials and we said bespoke ownie said we don't trust you to give you any verbal responses we want everything that you have because you twisted everything that we say in everything that you claim we want you to submit things in writing and we will follow the public records act in responding to your requests and what she's complaining about is that that not everybody has to go through that process but there's no complaint that the that she's not getting that access to information through the process of provided by state law  i thought i heard her say that she was not getting anything no i mean that's just that's not that's not true she said they were just big she got some delayed and she can get them through the public records process which is her right under state law and that would and if and if she weren't then that would be a state law there's no allegation and she cannot make an allegation that there was any government sanction against her client so the problem is again the futility isn't that she's the problem of the moment isn't that she sort of misstated a word or two here or that she didn't put an allegation into the complaint that she now has the problem is that the essence of what she is complaining about the legal theory doesn't fly and in fact in her in her in even when she asked for the leave to amend in her brief here right ok she says if you believe that these are viable claims we asked permission to leave to him and it's a conditional thing that you are self acknowledges you have to do it and finally as you point out she has never yet stated what it is exactly she would amend that that would change the nature of her complaint to make it a viable one and with that i will let mr off so i would like to begin by clarifying what the california public records law is it is known as our public records act it applies to all agencies state local special district school districts and it's founded california government code section sixty two fifty there is no if but i guess what concerns me here is can she state something on retaliation here is that it's futile as to really in regards to because we can't we can't decide what's church or not but if there were allegations that they're interfering with their advertisers they're doing that that your clients doing things to cause you know people to threaten your family to do all of those things then it seems to me maybe that could allege a cause of action not here not maybe it hasn't been done but maybe that could be so tell me why i don't think so  first i want to be very clear the allegations don't directly allege that he threatened her family or he encouraged people to do the allegation is quite indirect and removed it is that there were social postings of a friend of his now they can't because as my colleague was explaining the critical element there is that there has to be some government sanction or prohibition for that claim to be viable court there is no suggestion that that county imposed a sanction or hope or a prohibition on this vili doing business in or with the county and the allegation in the complaint and in the briefing is not that she would have trouble doing business with the county it was that she would have trouble doing business in the county and the only references to specific allegations not very specific ok can can account he threaten a person's advertisers is that there is nothing wrong with my client telling people in the community that he knows that advertise on her website she is an unreliable reporter of the news you should not be advertising on her site is that something wrong with somebody mr hill saying and if you do good luck in ever getting another permit building permit zoning anything else and maybe your license won't be renewed next year either or maybe the inspectors of your shop every week that cross the line i we don't have specific allegations we don't we never have to see there is a line out there someplace i mean we've all seen movies where the local officials terrorize the hero of the movie is there a line that  were stated to that effect is there a line that could be crossed just for the sake of this theoretical conversation i would say yes there is a line but the line according to case law is to the other side of a sanction or a prohibition not the threat as such within you have described it with a call official oppression official what oppression where a person is using his or her office as a way of tamping down the i'm not familiar with the the official oppression doctrine if there i mean it's just simple common law thinking yeah talk about some statutes well there may be a common go out and destroy them it isn't a comfortable thought there were pretty sure it's not legal at some level well it's probably not legal as a matter of california common law and there were several come along claims to that effect interference with contractual claim for retaliation and the case was very clear that to do that you have to have an official sanction or prohibition one supervisor cannot impose an official sanction or a prohibition that takes the board of supervisors as a whole and there is no suggestion anywhere in this case that that has happened or that that might happen if i leave two men were granted we think that the district court was quite right on the question of utility there has never been a hint of any allegation or possible allegation that would establish a right of equal access or establish a obviously what i say here today hopefully when i do if i get the opportunity to a lot of time you file this lawsuit you've had a lot of time to think about this and you've had time to prepare for oral argument and you're asking for leave to a man so i cannot be surprised that this court is saying what would the amendment look like and i didn't mean to you know like to waste time because if it's futile you're out so right what would it look like sure and i didn't mean public records law yes and i was looking at my notes from earlier and she did indeed file requests for public information under the public records and from a shit act and she was at times given some information and at times told sorry we deleted that we don't keep our e mails for longer than say that reason a whole other set of issues because that doesn't by itself demonstrate any singling out of your client we got a lots of fo lawsuit by people complaining they didn't get what they thought they supposed to get under for us and it turns out the government doesn't have to respond to all those things that's a whole complex and this isn't a public records act lawsuit which your client people were told we can't talk to you we're going to lose our job we can't return your calls we can't give you the information that you want when doesn't you know none of that connects up i want to make sure you have a show a shot here but we've already expressed skepticism that there is a first amendment equal access for all reporters right so we're looking for something more than that and just to give me a generic statement she was shut out all that and and i don't know what the fare is not good you're right on the bus but it it's not it's not substance there so go ahead what exactly constitutes the substance charge and we would include information or cash allegations about her contacting the d a s office for example and not being given information on certain dates and times about certain topics that would be available to the public information  that she said question from the sheriff's department or human resources we would add details about that and as far as the threats against other businesses i disagree respectfully mr  hill as a supervisor is a very powerful person and he could certainly follow through on the threats he made to local business persons about making it tough to do business in san luis obispo county and i think that we should be given the opportunity to  because this is a very important issue the government sanction here is supervisor hill using his position to get what he wants and a press or sense or local reporters that he doesn't like or anybody counsel posing counsel said you had plenty opportunity to i'm in and at some point the code did not permit you to me and i didn't give you leave to me and now what's going on here is that that you could have amended and you waited till a point where there was some scheduling order in place and you failed and you could not get the court to agree what's going on with this procedural thing here why not i mean yeah i don't appreciate that either we filed the complaint and they immediately filed a motion if you find if you if you're going to grampa trabi sex this is what we would say you could do nothing prevented you from doing that right i suppose we could have done that but also what we did was we had to respond to a special motion to strike and submit a lot of eviden socal businessman about being well even that's pretty unspecific in your brief to us didn't specify what amendments and we talked to you now it's pretty unspecific so it's frustrating there may be a claim out there that because survive scrutiny of the pleading stage but it's still not very precisely defined i think it's important enough that we should be given at least one opportunity to amend the complaint which one is normally provided by we have your argument in