cases sharon march men vs number of people i'll just leave it at that and know you have requested more time and that was denied but will well be flexible first thing i want to talk about is what was the speech the the judge made a critical error he looked at some things beyond the record he looked at the transcript of  hearing in front of judge she our motion to recuse hearing where judge marshman had a subpoena duces taken she made a return on it and during that conference i actually very surreal thing that took place in the judge's courtroom i don't know how i don't know if i gave it or one of the account co counsel gave it to the the judge but he had a copy that transcript i suspect mr crawford may have attached it in numerous documents in that conference judge marshman stands up and says your honor i'm here to make a return on my subpoena of course there's a long history going back a year of these the court arguing about whether certain information should be made public about this law clerk judge mark he says well what's that you've got in your hand and she had she said these are a couple sheets of paper from the judicial administrative where she's saying she's not given many documents there's more discussion the district judge said well that's all she produced no read my complaint my made a complaint judge martin gave me her entire file the whole her filed on all the investigation the court had done regarding miss campbell and if you look at the paragraphs  i think it's paragraph seventy eight sixty through seventy eight the defendants attacked her because she gave all this privilege allegedly privilege and confidential information judge speech for purposes of leaning gore city is the document production that's part of it that's part of it there's some prior restraint speech where she's told she can't say certain things but the actual speak she gives is the production of documents and the quote the little stunt according to judge shar in her courtroom where she made her the fact now is she is there to give her documents but substantively her testimony was i'm don't remember if that was a subpoena duces taken in other words speech equals document production i think that you your honor there are several cases that say a document equal speech if you look at charles you look at some other cases somebody just sends an e mail someone writes a letter she but in the context of lane and are said the citizen speech what's your best case that says document production equals speech i think it's got to be lying ok i don't know of any other case i could not even if you're right that this was her speech what is the subsequent adverse retaliatory action subsequent to that courtroom moment well right off the bat  rambo intentionally walks into or the judge call that perhaps a battery she's then accused and pleadings filed in the public record and you have to understand i just stick with this stick with telling me what you alleged was the adverse employment action subsequent to the next thing in sept and november this all happened in august and november all the attorneys got together they filed pleadings in the public record accusing her of illegally giving this information ok incent violation of the winter's decision that's best exactly right out and you have to understand your ex the adverse action and what's the case that stands for what you're about to tell me you allege was the adverse action that amounting to under the law being adverse implied when i get sharp ok so it's sharp i'd have to go to sharp where she said she the judge said well it seems she voluntarily resigned from the chairman of the committee that was no more voluntary than what happened in shark you know you make someone's life so miserable and they changed all the rules on or after this happened she had to get permission to do anything i saying it's a constructive demotion constructive demotion and which of the defendants here told her she pressured her enough i thought it was the court administrator no it was a court administrator and the chief judge winners went to war and could adversely take an employment action for a judge the court administrator well he's also he was running the show your honor if you saw this he was a judge who retired and then he became the court administrator he's the one who told judge subpoenas he held up a much more powerful position than just saying he's the court administrator the allegations are that they did he have legal power to to terminate her from her position as the head of the person no no she's an elected official your honor i don't think he any of these judges had any power to fire her they could only make her life miserable they could only give her a constructive demotion they could only present her in the public as a pariah someone who's gone outside and caused all kinds of problems why doesn't that i mean i'm not in any way minimizing arguably according to her complaint the bravery of someone trying to expose payroll fraud corruption rogue law clerk whatever her allegations are but it would seem to me that would be an intense amount of acrimony that then the newspapers get ahold of the auditor walks into their lawsuits filed but it's hard to see how it becomes no longer communicating with or he's no longer going to tell her when committee meetings are so that he will no longer set on any committee with her but she suddenly an outcast is not a normal just ugly it's outcast but it's hard to see that as an adverse to claim that action that's just what i come back to you say sharp's your best case but sharp our court was very reluctant to describe a transfer as a demotion a strike it was a constructive thing in that the point is that the trial judge said well she voluntarily resigned her position and sharp the court says yeah we get that but there's voluntary and then there's you made me do it i had no other choice to do it that's the position she's in she's in the same position ashar she had to give up one of them most prestigious committee heads there it is all the employees because they just made it where she she couldn't do that she she had no authority she was not chairman anymore why why do i pretend like i'm chairman win there they're just glancing around still out there what's still left outside of this federal court proceeding in that and my question is what inquiry disciplinary professionally media audit anything or is it all if we're not privy to the judicial sanctions that may or may not have been implemented against the defendants my client certainly had nothing against her the main lawsuit that was filed against the law clerk was dismissed based on total immunity even though this law clerk is not an attorney is there's no recourse to the bar association but the judge gave everybody immunity the second circuit was about to have oral argument when suddenly they decided they only had two judges out of the whole court who would sit on the case rather than hire an ad hoc to lose in the supreme court sent it to the first circuit so we had oral argument what six months ago when the first circuit they said i will give an opinion in six polite we all selected each other we're very polite we didn't get a ruling in six weeks and i don't really invite six months now we are told in two weeks we shall appear before the entire first circuit all twelve judges which in my forty years that's never happened which tells me of the three judges two of them wanted to materially modify the the order of the judgment giving immunity that's speculation so we're all going to go to baton rouge on i think on the of action basically in that case is that the law clerk she what would happen your honor she would go in and she would take documents i'm submitting documents to a court my documents don't get to the judge i get a call from the judge she gets everybody on the phone he says ward don't you have to stand how it works when you file a motion you've got to follow a memorandum said your honor i'm looking at my stamped copy of the memorandum i start looking at other documents he never got it i hire an attorney i have an attorney go in and look at the record in tell me what's there and what's not there he comes back and says more practical to me it's whether this speech is is ordinary or not ordinary for a judge i don't think there's any dispute this was not an ordinary thing to have her speech is basically giving the public because once we got it we put it into litigate into litigation giving the public the information that was being repressed that's her speech the fact that it's in written form doesn't make it any less speech now you can say well what she really a public official or a private or public at the time she got a subpoena she's a citizen she has to comply with the subpoena but that she got the subpoena as a to her own follow your honor and if you look at the complaint it goes through its own fall or go to court records aren't they don't know there were these are not court records she went to try to get the courts the administrators records and was told you can't have that because  was very broad so what she brought is her record she has all her notes a lot of documents about what happened and as they put it it was personal it should have never been done it was privileged it wasn't privilege now they had sought and this is another issue there was a another case where the newspaper follow suit to what do you want out of this court or what do you what do you what do you your honor i think i think all this court should do in my opinion is look at it and say under the four corners of this amended complaint it does state a clause of fact where you go in with someone i don't know what help do you question what relief do you seek whatever be the animation oh at the end of the day i think it should go back and then they'll do their summary judgment and they'll do a trial i think at the end of the day she's been damaged i think there is no good faith the sense that they i don't think they did in the she they can't retaliate against her anymore for what she's she's making speech which is why her job back up her chair or their purse now if i think she would love to do that as long as everybody goes back to the way it was before you think that would be a simple thing we could all sit down and agree to that right now but the law clerk is still there it's still a problem it's still a boiling pot they've taken no remedial action or you rely cept in the link or say the framework or it in order to win do you have to have reliance on this mispronounce agenda vein then of anus ha said no judge i think you know it's an interesting question i constituency they used this against her in the recent election they used it against her mightily that elections can back up in two years no one regulated or speech responding to that in other words that's right no no they didn't but the din of and maybe restricted to that there can't be sort of formal regulation of a speech well that's why i say there was some some prior restraint here telling her what she can't say i think in general you basically told the court look like the judge has a right to talk to his constituency you can't have regulations telling that judge keep your mouth shut well they did that here they did that here and then when she talked you have the retaliation under charles me grief it's a retaliation that's the mr crawford is not alleged to be and has never been a district court judge he's never alleged in this complaint to have any control over judge marksman's employment and likewise he's not alleged to have any involvement stay that when a private attorney who's representing a client even through a legal process that does not make him or her a state actor and there's no law that i'm aware of in the federal that would change that i think the only hit up was that one case i want to say  east coast where somebody was a domestic matter and they basically when their wife was out of town staged they planted evidence and things like that and called the police there and they held that that might evolve a state actor or a constitutional implications but outside of a crazy case like that there's nothing for the court to to really appreciate my client's position and i'm trying to hurry like that i'd like to get some of the things that mr ward said what effect let me get to those first to make sure i get that for get that this one of the things that mr ward said is that judge marchment apparently made a production that goes beyond which in in the record in this court i will say this the only time that any of the litigants in this case found that was in a for five thirty and which all she does is a dental file letter she sent to the judicial administrator asking for records and a letter back in the judicial ministry said she's been instructed not to turn those over that is the entire ty of their speech that their case is based on based on this record again in a reply memo they referenced something else that she produced all these other records it's not in the record what's your case that says th responding to a subpoena isn't citizen speech i would say there's i've been spent as you might imagine the last few days trying to see if any court had decided that the best that i could find would be that the lane case that we talked about earlier outlining what it is and then when you go to the other types of courts like cases a deal with sit ins things like that expressive speech where you're not really speaking we don't have either of those i would i there's no case that i'm aware of that says that the minister all act of return on a subpoena by an elected official a public official or private citizen is cloaked in first amendment rights so i would take the negative there's none that says that blaine i  negative and come to the opposite any time you get a subpoena no matter who you are and you show up that protected by the first amendment lane stands for that but but you don't necessarily lose even if that's right you're saying there is no case that disproves that line of thought but you think that there also isn't a case that solidly says there's no case of solid says what i've argued here that it's not protected you're exactly right if it is protected speech then where do we go it is protected speech that we go back to garcia's was it on a public concern true as far as i know well miss campbell is not licensed as an attorney she's not licensed she agreed she falsified that into signing statement or that's the allegation that she falsified the allegation is she destroyed documents she pays two hundred dollars to the woman that finds all the heaviest filings i mean it would seem to me coupled with the absenteeism you have an issue of public concern do you have a rogue law clerk who is highly corrupt and and destroying documents well how could you possibly say that isn't something of public concern to expose in a shareholder civil litigation your honor we're all he's doing is returning to the pages of documents and also keep them on in this record in the case the  louisiana attorney general declined to prosecute her for anything that there was no evidence that's in this record so i mean i understand there are allegations and we were dealing with the twelve the six but that's part of why i think you would shift just because of timing to seeing  even if all that were speech there was no adverse employment action you relied on sharp to have a quick response to sharp as not being sufficient lee analogous to a constructive demotion i don't think it's a struct of devotion it's actually not even what she alleges in her complaint her complaint in paragraph sixty two she resigned due to concealing existing problems from her in the personal capacity and avoiding discovery going to dressing potential problems and keep in mind from my client's perspective my that request that was made for these judges to produce this campbell's personnel file the supreme court appoints a judge to hear that and in a final ruling that was never repealed that judge binding on i would suggest before judicial district holds that these are confidential the miss campbell's entitled to under i guess i didn't i didn't litigate that case but under whatever rights are provided under her federal state law that's confidential to her and they can't produce then you follow that up with six weeks later mr pullouts been saying counsel that miss marchment has filed a lawsuit against miss campbell and he ledges all type of corrupt that pleading is filled with berkeley the same allegations that in this judge bargeman will testify about six my client puts two and two together and says judge watchman is the one that has leaked this information and we may have learned today that that obviously was the case with what they returned that they didn't put on the record and they were provided to us but in addition to that at the hearing on one that mr in trying to defend against the motion to strike the crawford this fall that gives these allegations mr ward says when he filed the original pleadings back in july of two thousand and fifteen for a poll asking i've actually had a judge inside the court confirm these things to me or i wouldn't have put them down to start  started because in looking at it it really cannot be a first amendment case because there is no speech and i think my opponent jumped right on that point because he realized that that's the weakest part of his case producing documents s ducasse take him by itself without some testimony connected to it has never been considered speech in any case that we've seen the closest you can get is actually the original facts of gaar s where the assistant district attorney in that case produced the memo that he was the author of that memo my colleague is correct when you look at the record it was a little bit of a surprise to me today to hear that more was produced to subpoena deacon's dicom then just the two pages because when you look at the transcript which the court had every right to look at under the this court's dorsey case because it's clearly referenced directly in fact there are quote marks on on complaint paragraph sixty seven that appear to quote directly from this hearing so it's no surprise that this hearing transcript could be used under dorsey it's very clear there are only two pages of documents that were produced this is actually shocking today to find out there were not two pages and when i put the timeline to gether it appears that actually some of these docket may have been leaked this speech the rest isn't that the strongest argument i think that's actually our strongest argument on our side because i think than getting into the world where there isn't case law saying you come and you say so much about a document production that is  speech if the only adverse employment action they're pointing to precede that speech moment i think that's exactly correct and not only that none of the defendants that she named as judges defendants in this  any authority to remove her anyway from this individual judge winters as chief judge was in charge of the administrative issues in the court as chief judges are and he's not even a name defendant in this action and all of that in the the judicial commission gave and they tend to take a bottom and that panel bitterman that that was going to for we cannot shut up an elected official from speaking to their constituency there is nothing here that shows that judge morton was being quiet it at all in fact judge he gets in you you related that in questions to earlier today which was even when she ran for re election it became an issue she was able to speak to it there was no effort to try to stop her  what we have at the underlying set of this dispute is really i think you hit a court that doesn't get along for a whole lot of reasons and there's some speech on both sides if judge sharp says this is an internal court dispute at its heart that is attempting to be ramped up to the level of a constitutional speech claim seeking damages injunctive relief declaratory really all of those are alleged to have been done sharp refusing to serve on a committee the confidential agenda item which never got brought up and we may be talking about a different case on retaliation the rambo bump on an elevator in a stair jones the personnel committee which he was actually due to show administrator at the time and had no authority he was just along with chief judge winter on this and  a man who says that he yelled in an ad hoc committee meeting i would imagine there are probably a lot of raised voices at times and judges committee meetings on different topics ever discussed all of those happen within the context of these judges doing their job judicial immunity does not mean just what a judge rules upon but it means that a judge is part of doing that job whether it's on a committee whether it is dealing with good morning your honour's my name is mary and blind and i represent former attorney general james caldwell on this matter i'm going to skip over right now unless you have any questions the protected speech issue i think it's been argued by my colleagues and and my briefing shows you that i don't feel like mr college does not feel like they're protected speech here i'd like to focus on the lack of actionable harm and under any framework that's applied here and i know the framework is at issue there is no actionable harm especially for my client mr caldwell the allegations against mr caldwell are very very narrow we have a very lengthy petition as i'm sure you're aware it reviewed it in the allegations against mr caldwell are simply that he filed pleadings in a court matter accusing judge marchment of disclosing confidential information the actually there is the fact that there's no actionable harm speaks to you know the personnel committee issue the fact that judge marchment resigned from the personnel committee that action occurred in july of two thousand and fifteen the pleadings that were allegedly fall by my client  also this court has held on several occasions culson to graham as one of her groom is one that is very analogous to my current position that reputational injury or just criticisms and allegations little bit about qualified immunity with you even if this court were to find in the case in the allegations against ma kline mr caldwell that there was protected speech that the response to a subpoena duces tecum is protected speech and even if this court were to find in some way that there is actionable harm i submit to you that my client is entitled to qualified immunity to allegations obviously show that he was the former attorney general at the time and because lane is is dissimilar to this case and lain there was testimony in response to a subpoena in this case what we have here is a response to a subpoena duces take up so clearly my client was not put on notice that a response to a subpoena duces take them could be considered protected speech and under a qualified immunity framework it has to be a another case that's somewhat similar for my client in those cases especially in colson there were investigations memorandums produced by the defendants accusing the  of illegal conduct there was even a petition for a recall election submitted and passed around by the defendants in that case and all that together that was determined not to be actionable harm i would submit to you that the filing  if it we have to assume that that is true in this case the following a pleadings accusing judge marchment of illegal or unethical conduct is this is far less than those allegations and so when you look at the state of the law in the circuit then you look and see that it was not clearly established to be a violation of law and so there is qualified immunity with respect to my client  i'm going to say if there are no questions then i'm going to reserve the rest of my time for my colleagues thank you thank you has received any discipline and is the record reflect she was disciplined for any of the alleged conduct there since there are allegations in the complaint that she was suspended and she was i think second on the mouse and she got mad she quit the committee licensors it not uncommon for the she has a she has a she has a lot of very she doesn't i don't i don't believe she's a member of the bar but she's an employee of the court and in you know we're television is the word of the day and that's this is the ultimate retaliating here filing a lawsuit and publishing  internal court information and confidential important information in pacer in the federal records where it can be disseminated evercore it's retaliation i think as judge judge hits on judicial restraint is is very appropriate here especially when you're talking about personnel matters involving internal politics of a state district court and for that reason you know we take the position that this is not the proper method for her to seek more redress she is causing harm to ms campbell by continuing this in if anybody wanted to clear up something real quick mr gibson made a point and this is why we should go outside the record that they're claiming that judge marchment delete information to me or  co counsel that's just faults if you look at the lawsuit that was filed against campbell in july it's matters of public record i know the bar associations investigating those allegations because they came and took my  deposition and then when we got the production in august we changed the allegations i wrote a memo and october say wow here's what happened that's when they really retaliated it to a judge or a lawyer five or wait five a night she said yeah i don't have any that's that's pontus in the subpoena i'll take a look at it i had no discussions with her my counsel had no discussion of her it was all private into say that she lea these investigations that's her truth about what's going on if she spoke the truth here it is she didn't stand up on the street corner and read these pages one by one she gave them is documents i think the law is clear that that should be protected speech the other comment that i think the law clerk is not a member of the bar you can't go that route to cure this as i would or the bar investigate any of us there's a judicial committee that investigates judges and they're very secretive so i have no idea what happened there other than sharon nothing happened to her apparently and i don't know were response to talk about that that's very private the only way i could get anything done was to file suit against the law clerk and that's on behalf of a different client good go to the local press and tell them everything that they know about the us and the press could report it judge yes that's true and what happens in all these cases pull out his corp lasky versus campbell and remove thing else and and and it early on disputed that is rather mation occurred for art of most of the stuff so well that was merely one thing your honor one adverse employment actually was that but also all the retaliatory actions against her that we've outlined i think you have to include all of that and remember the initial retaliation where she she voluntarily resigned that's after she kept saying we've got to go forward we've got to give this to the press remember the press  judge i think we do have to keep it in the legal framework and i think we've shown adverse employment retaliation when you when you you combine all i know there's there's there's a tendency to say well they were just being rude they were being unprofessional it was more than that it really was more than in you for the questions thank you thank  we'll go ahead and take a short recess to go check up on