morning honors may have please the court my name is mary schultz i represent the appellant frank strother as like to reserve eight minutes for a vote the time string on your on the clock is total time ok so when it counts down to eight if you want eight minutes you need stop i'll go with that your honors were requesting that district court order granting summary judgment be reversed in this matter remanded for trial the and it controverts the brady vs gabby case and it reverses the standard of summary judgment in construing the evidence in the record against the moving party i want to just touch on three of the issues of law that arise in summary form for me first the district court held that there was no liberty interest actionable here because we've shown no injury beyond reputation but injury reputation is a protected liberty interest because injury to reputation impairs the individual's ability to obtain future employment it impairs an economic interest and that is the holding of  cox and brady so when the district court found that we had in fact evidence to injury to reputation which there's no dispute that we did we proved that triggering and that actionable liberty interest second the district court concluded that post terminations process is really all that involved here but publication the initial publication without notice and without an opportunity to respond is actionable as an initial deprivation and that is the holding of the nellie so when we demonstrated evidence that there had ultimately ended up going to the jury and each case and because there wasn't an initial and an actionable deprivation surd the district court held that you do you dispute that you client was offered a post deprivation hearing on at least four occasions we dispute that are that my client was offered an opportunity to clear his name yes w ait a minute that when they keep offering you a post from a nation hearing how can you say that you were denied an opportunity to clear your name because an e mail that says name clearing hearing has never been held to constitute an opportunity to clear one's name of that counsel i don't if they've offered you an opportunity to have a name clearing hearing and offered you an opportunity to structure that hearing so they haven't described that they haven't prescribe what the precise contours of that hearing are going to be and you've got  shape that how can you say that it's not going to be effective because the word opportunity encompasses a lot and well then make sure your room my marine would judge by be said because my first idea was that you were offered this on at least four occasions and then as i understand it not only you offered the opportunity the hearing but the opportunity to discuss the timing and the appropriate process for the hearing which is embodied in his question no such evidence in this record none no evidence there's no such evidence that we were offered an ability to participate in timing process challenge them as to what was being meant here is the problem chief straw had no notice at any point of exactly what behavior he allegedly and gazed in gauged in that made up these stigmatizing characterizations he had asked the city who said that the evidence was somewhere buried in someone's notes and those notes were never produced i asked through letters to the city i asked for the discharge order itself so that we could see get some sense of what exactly was in compassed in these characterizations the city refused to provide any notice of what chief straw had actually done so misrepresentation of the mayor conduct unbecoming a police chief there were these characterizations chief strada had originally asked what exactly makes this up and one of the city employees who was in the process of firing him said well it's in my notes we requested those notes we never got them i continue to communicate with the city tell us exactly what he did  before we can have a hearing in respond we have to know what the charges are we have to have notice of what the charges are i could not get a response out of them on october the eighth i filed a tort claim a formal claim basically saying the same thing we don't know what he's done tell us what he's done and we have a deprivation here we did not get a response to the tort claim even we did get a response from the city insure a city insurer wrote us a letter and said we're investigating this and will let you know we never got a response from the insurer either so to suggest that we can participate in a meaningful opportunity i such a hearing now your unwillingness to respond to that to tell them that you would like a theory it seems to me third of preclude your stops you from complaining that you didn't get all of the information on this if you're not going to if you're not going to do the hearing i don't know why the city is going to have to come forward with notes of the charges of his because it's way water under the bridge at that point because it's the government's burden because when it's the government's burden to do what it's the government's burden to provide due process the government if they've offered you a hearing and you declined it what was the government supposed to do well we really didn't decline it i mean this is where it is you may respond to those letters i did respond to that if you tell them you would take them up on it by the time the letters came from outside counsel your honor it was november right the tort didn't have it in that would have been that way and that clearly would have been a post from a nation hearing i understand it's not a satisfactory to you as a pre term anation hearing but it is something did you take them up on that opportunity i'll put it this way we did not decline it what what what the communication evidences in the record is this does not seem to me saying this does not seem to be meaningful now there is ninth circuit long out there that says that we do not have to participate we don't have to request nor do we have to participate in a name clearing hearing that is purely a formality this is why brady went how trial this is purely a formality because there was no notice of the charges they asked you they asked you if you wanted to hearing you you told me that you i mean effectively you told them no because you didn't respond that you wanted one yes so i don't know how what they're supposed to do we responded by saying tell us what he did first tell us what he did secondly the process all right what is the process i mean essentially your honor what you're saying is as long as they say homey that's an opportunity for a name clearing hearing that's not all you know it may not be an adequate hearing because but if you call them and say if we're going to have a hearing i need to have the evidence i'm going to have to be able to hear or see all the documentation that you got that we haven't received  and if they say no nothing do and i think you've got a pretty good case for complaining that you didn't get due process but if you don't ask for that stuff and give them an opportunity to provide it to you i don't i don't i don't know why you can complain that your that you didn't get the fact as to whether the process that was being offered was indeed if you had a trial what would have shown well in brady what it showed is that that process was not a legitimate process that the evidence would you have mustered at a trial about whether the city provided you with process well i think what we would have mustered at trial would not be on the table at summary judgment the evidence that we mustered at summary judgment was that there was no notice of there was no apparent desire to give us notice of exactly what constituted the charges secondly that there was no process that was being proffered at all it was call me third that there was no impartial tribunal which is also a requirement of due process notice process and an impartial tribunal in brady the impartiality of the tribunal is what was at issue what did you think what were they offer you in terms of the impartiality well no one but what do you mean no one well because answer their question so how could you how could you even how how how do you know that they were to offer you there was no question posed to me there was you have been offered a name clearing hearing the response back is a not is essentially this is meaningless what you're offering is meaningless now i suppose you could take that as a question of fact i suppose i counsel could take that as  oh well we need to offer a process and an impartial hearing officer or they can simply say aha gotcha since you haven't responded back you're now out and the law does not support the latter i just want to say that the only circuit the only circuit that requires that an employee request and or participate in a name clearing hearing prior to bringing a due process claim is the fifth circuit that's in re craig and that's because they have this seven elements test where the requirement is actually built into one of their seven elements but in slack which is a case that was offered by the city and the mayor that employee refused the name clearing hearing outright refused it and yet it was the court's responsibility to go forward and assess the nature and the quality of what was being offered anyway and the schleck court found that it that the process that was being offered which was a c thirty one hearing he was actually being offered or what could have been offered what was actually offered in schleck you know ok so how are we to divine what it would look like without some response thing well we'll meet in these will be the this is what the outline of any quarter any jury body evaluate that because the government has to comes forward and says this is what we proposed that's precisely what happened in slack the government said because they didn't tell you who was going to preside government is not satisfied its burden you know because they didn't proffer anything well even let's look at the our three hundred i went there because you said there's nothing in the record that suggests that you were given the opportunity to discuss the top i mean the appropriate process for the hearing heavy are three hundred says that well at least i read that suggested through counsel you were given the opportunity to discuss the timing in the appropriate process for the hearing you said there's no evidence of that but it right counsel suggested that that's something you could discuss that that's true counsel suggested that there's something that we could discuss well but not only d something but to discuss the timing in the appropriate process for the hearing that's not a proffer of a constitutional process oh so you're saying that record is is is the lead of th any such evidence just because you don't interpret it that way what we've all had seemed to me counsel said come and discuss the timing in the appropriate process we should do in this hearing that's one of your three hundred says if council it  please let me know if it is possible so that you and i may discuss timing and a constitutional process would that have been sufficient now there is no specific grid or list of qualities for what the government must propose but what it must propose is a process and notice that is that meets constitutional adequacy and this is an issue that has gone to juries whether in fact problem the process that we're talking about here of the letters going back and forth whether there was indeed a good faith constitutional adequate process being offered this is a question of fact letter said call me i will tell the letter said and i quote discuss the timing and appropriate process for the area which is not a proffer of a constitutionally adequate process the bottom line what is in a proper w government satisfy due process because the government is the actor so if they know that so the what is it that you think they should have done so that you would have said that's sufficient and take that response to them  not posting letters on the internet after they posted letters on the internet perhaps producing the notes saying here's the charges against you let's have a hearing we're going to provide for a c thirty one hearing under the office of the ministry of hearings like slack  you know there's a variety of different mechanisms for the post terminations hearings and they are literally offered in all of these cases in a different in different cases they're in every thing out there isn't it suggest you have to sit down and try to iron out the details know what the law says is the government has to offer if the government has to make clear what their process is because they're in control of the process but they can't understand without talking you what you think your requirements are and maybe they would meet those requirements don't speculate that it would not have an employee does not have to except for participate in an offer where it appears on the surface to be a mere formality that's what we allege here we produced evidence to support that and it should have gone to the jury as a question of fact when you cut it off and the council i don't know how you can complain about the lack of process is that this letter had said let's discuss timing and providing you with process and appropriate notice and an impartial and an impartial decider with that have been sufficient how can it not be if you're not willing to talk to them i don't see how you get to complain i don't think a lack of process there is there is no way of finding that i was not willing to talk to them from this record i was in communication with them throughout including three page letters four page letters up until the filing of the tort claim communicating with the insurer i was in constant communication the city would not respond with anything legitimate nothing legitimate there was call me will figure it out which is not constitutional adequacy as a matter of law there was we'll let you know what the charges might be without ever letting us knowing even as we sit here today as i stand here today the city has never identified the specific conduct that's being alleged under the umbrella of then the answer is no ok all right let me go to the to the what i think the guts of the case are you bertie covered this by virtue of your questions and because i was a participant in the offers for name clearing hearing on two of the latter occasions after the city hired me as outside counsel we shouldn't forget that the information of which the plaintiff complains was published on september twenty second and on september twenty ninth in response to an e mail from a scholtz that suggested that the chief was no longer going to resign she said if he's not going to resign then there will be a determination and we hear by our for you that a public meeting clearing hearing has been some recent cases that talk about the character of the dissemination may help form the basis of the hearing so for instance if you make it a broadly public statement in the newspapers and television there is some sensibility to allowing a public hearing if the employees of the desires of that they have an equal opportunity to respond this is why i said let's talk about the process i get the due process is a moving target particularly with respect to liberty interest claims there is no property interest claim here in the plate conflate the property interest requirements with the liberty interest requirement she talks about charges there are no charges because the entirety of the hearing is defined by the repeatedly particularly in strictly liberty interest cases you must be guided by what happened in this case we cannot formulate a hard and fast rule will give you a three element a four element or a seven element test pending what particular necessary publication to trigger the right to a hearing but it didn't solve nor did it discuss the timing issue however they relied on the lebanon circuit case of buxton versus the city of plant city where they said we'd like the reasoning of this the court in the eleventh circuit on this the city of boston and we adopt this part of the decision which is that if you put it into a public employees file so that is subject to recall by the public records act that's a publication i've been suggesting to this court that if the court doesn't exist doesn't accept that because due process is a fluid place in the offer of having a name clearing hearing and saying let us sit down and determine the parameters avoids many of the problems that exist in the cases went up on appeal because the entity either said you're not entitled to a hearing and so failed in that regard or provided a hearing that was inadequate and so i thought an elegant solution to suggest that the process should be worked out so there really be no questions later about whether the process was adequate or not the question i guess is is is  i mean my well so paul i was through this and i said ok in my understanding here of strawberries offered a hearing maybe even offered this name clearing hearing as many as four times yes and then i said to myself well just offering the hearing is not enough so what else and then i seized on this line if you will already our three hundred which said and let's discuss timing and appropriate process yes and so i said to myself is that enough i mean i tried to find a case that would say that's enough there isn't a case is says that's enough but the proffer of a is that you can't know in advance so that you can describe a process with respect to a specific set of facts and disclosures that will not be subject to cause to tional scrutiny later so an open ended the response was it's too late to have a hearing it can't be meaningful that is the response we receive four times in a row we can't have a hearing because it can't be meaningful and the response was not because the offer was inadequate response was because counsel believed that the resignation was in fact a terminations and so we have talked about the fourth element which is in order for a liberty interest to kick in at all you have to have a termination model this is a hot mess and the city made a huge mess out of this whole thing that there's all kinds of misdirection and direction here in the way that the city conduct of this  odd really was unfair if there were there were a hundred different ways of handling this matter if you thought that the charges were serious then you should just make them straight up giving him the opportunity to resign for family reasons and then saying in the next paragraph that there's all kinds of complaints against him that he hasn't seen and that we're not going to substantiate is really unfair i understand that perception you're you you may have you know i'm not going to predict going to come out maybe maybe you've done enough to offer me a post terminations hearing but the city ought not to be under any illusions when you go back to spokane that handled this well understood understood are there any statute or ordinance regulations that i can look at to suggest what it is that one should do in this particular instance there really are not i didn't find  why i'm putting it on you there's not a there's there's many of the cases have arbitration clauses in union contracts so for instance benelli as such i think i understand it based on my review of the record there's nothing in this record to suggest what the defendants would have thought was appropriate to all three and the reason is because michelle's from the beginning of her representation took the position that this was a unique case  unicorn case a unique set of facts our response to that was great let's craft a process that satisfactory to you so that we can move forward with it and that was offered within five days even if you treat the publication as terminations on september twenty second on september twenty ninth even if history is opposed germination hearing case law supports that that closeness in time to the disclosure is constitutionally ok so the now we is not a helpful case because under the particular facts of that case of the ninth circuit struggled with that outcome b in this case because of the presentation in this case specifically saying in this case we don't think that the post germination hearing was constitutionally adequate because it was too far distant from the events which triggered the right to the to the long it's a very much appreciate the comments that the court has made both pro and con and so on so forth the issue here for an at will employment situation which means that the employee can be terminated for any reason or no reason at all has to do with the issue of whether or not this idea which for which the council has never provided us any authority that there is some basis for a pre publication pre term anation hearing in connection with the liberty interest by somebody who is serving as an at will employment situation there is no such case counsel the idea that he was that will i think is pretty well established in the record and that means that you could you could do it for any reason and for no reason when you choose to disclose defamatory reasons then when you do you may assume certain obligations here under the sting a plus pass that is you could have simply that the chief of police you could have removed him you could have told him that you would renew his contract at the end of the year there were half a dozen things that you that you could have done that but what you don't get to do is is to kick him in the pants on his way out the door and slander him in front of a whole city without any opportunity for him to rebut the charges no and i don't take issue with that my point is that basically he signed a contract and agreed to work in the city city attorney's office and he was represented by counsel at that time and the fact of the matter is that as the balancing test in matthews talks about one of the things it's important for the city to be able to communicate to the constituency the reason the changes being made this was not just some malicious comment made by one person it was it was a the belief of virtually every high ranking police officer and police man and woman in the city and so in those situations on the on the basis of transparency if not anything else and the balancing test includes that is that people understand why this was done i wasn't remission provid yes yes yes the memos are not very not very specific i mean i love them the use of profanity i've got a pretty good idea as to what that was i'm not sure what anything else may not understand so the issue comes down to is there any authority putting aside how it was done and it may not have been handled as well as it could have been and i understand that and i don't necessarily dispute that the issue comes down to quite frankly is this so called idea that there's a pre term a nation pre publication hearing is that something is clearly established or is it not is it beyond is it beyond argument well no there's not one case there is not one case the council has brought to the attention of the city or brought to the attention of the federal district judge who decided this info can or to you that suggests in an at will situation such as we have here that they were required to provide him with notice before they disseminated that information and give him a chance to rebut there isn't any  issue the issue then becomes if there is no case and in fact if you take a look at the record you'll find that ms schultz conceded in the record that there was there was there was  there was no authority she had no authority with which to suggest that there was some sort of hearing before the change i contend not terminations to change to being it's the same salary same benefits and so on in the city attorney's office there's not one case and she's done because you're down to the minute twenty is anybody else going to talk i'm done i mean as are i don't want to cut you off if you're going to continue but it will come out of the time of your of the other counsel let me just finish with this if you if you take a look at the transcript and i know you have and you take a look at what is discussed in the transcript and what is what is what the what the judge struggles with in the court below he talks about the fact that page forty six of the transcript what do you do with the hundreds of cases that allow post terminations defamation clearing hearings question mark without anything before that and what the  t counsel defaults back to and i i just want to make this is clear as i can make it the of the nellie case which i really remember that rock team that was also live singing that has nothing to do with this that was that was that was a property interest case and it was not a determination it will it was not at will case at all it was a totally different case brady which is discussed in page twenty three of our brief is it is an entirely different situation they had a hearing and there was a finding of fact that the hearing was not satisfactory and so forth and so on we don't have that here we don't have a hearing and frankly this was a set up i understand we made mistakes every day we probably made maybe twice as many this morning more times they offer to have a post hearing to clear the name zip nothing and if you listen carefully and i know you did and i was to what counsel says it makes no sense i mean if in fact there was of serious belief that they wanted to clear the name of the chief she would have taken that up they would determined what kind of a hearing would be and they would have it they didn't ever want that in my opinion and i would strongly urge the panel to affirm the court below thank you think contract there was a contract involved in l a but the the appellate court didn't review it that way and it held if you go through the valley decision it really is a blueprint of what occurred here i do want to talk about your three hundred because i think this this point your honour's it nails exactly what i'm saying on they had an offer to discuss process is not an offer of constitutionally adequate process of problem that i have with that argument is this they offered to do it there is no statute regulation or law which says what needs to be done and you present none as to what they ought to do what i  at that point you did no only not presenting to think of them as to what ought to be but you haven't presented anything to us or to the district court as to what ought to be you just in a vacuum say they didn't do more that they didn't do as much as they ought to be but i don't have to tell you what they needed to do and there's no statute law or regulation which suggests so i win well mathews there isn't a statue or regulation because matthews requires a balance to look at the facts of the balance i'm having a tough time when i don't even know what you want to look at or what you need or i don't have a case well your idea is that i will i'm saying what if i don't agree you lose well there's always room for disagreement but i still win because matthews requires a balance and that's the question of fact but i but  weird when we get to matthew's council we're always doing this post hoc we're always we're always saying did you do did you do what was constitutionally required given the contours of the right and the interest that at stake there's a government interest there's a private interest risk of erroneous deprivation we don't have anything here and if they hadn't offered you any hearing at all you would have a very strong argument but when they've said let's get together and talk about a hearing that we could hold for your client and you won't talk about it how do we get to judge whether whether that was constitutionally adequate of course there wasn't a hearing because you refused to have a hearing i will respectfully disagree again i did not refuse i challenge them i used the phrase specifically i said in essence i don't believe you that this is any sort of meaningful process that you're offering why not because i was talking about unicorns because i said this was a this is a hatchet job what you're doing to this person is a hatchet job now when you start with that and you can head to job but how do we know how do we know that how do we evaluate whether what it would or would not have been adequate if the court chooses to impose a personal i think the record read in the light most favorable to the appellant or to the nonmoving party shows that this was a hatchet job for a variety of reasons one being that there was no reason to release the letters put however i had a ham handed operation but mr mcmahon sends you a letter and says you want to hearing let's talk about it and you didn't call mr mcmahon and say let's i will be interested if i get the right kind of hearing what are you proposing i did not respond in those words we already however had the tort claim in process we had gone beyond four weeks what are the charges to decide council whether you're really wanted to post germination hearing or not so i would put it i would say that what happened is is this if you want to say that there was a four times offer there was a four times response that was a challenge tell me tell me what you mean and there was no response back now whether that is an offer and a refusal i believe is a question of fact construed in a light most favorable to chief strong and and we need to go to a jury to meet you and mr mcmahon on the stand to decide that and have the jury decide which of you they think is credible whether their offer really was genuine and whether whether you really declined this is that where we are but no the letters speak for themselves and there wouldn't be anything we'd be able to add to the letters in any event so well though how do we how do we know that this was that this was not a genuine offer from the city because the city hasn't shown that it was well they've given us a lot or it was a letter from mr mcmahon now if we're not going to put mr mcmahon on the stand to ask him whether he really believed what he was writing to you and we were not going to put you on the stand to say i i talked with mr mcmahon and he was laughing the whole time that i spoke with him so i knew he wasn't really serious about this then we have all the record we're going to have the offer to discuss as brady put it it is a your point that it's just they were bluffing it's a mere formality now where they believe they should put it out there where they bluffing about where they're not really serious about with something that is a mere formality yes blood is above you when someone is but what we did do is to communicate relentlessly to challenge what was happening with the city because of the nature and circumstances of what had already occurred which to us demonstrated bad faith and there is a summary judgment standard that requires that this course of communication be taken in a light most favorable to us and what i'm saying in those letters is tell me show me what do you mean time after time after time tell me and week to this day we have no response so from a court standpoint is that a constitutionally adequate showing of post germination process last point i want to make i think that there's that that essentially even if there was a refusal and an outright refusal which i do not concede that there was by any stretch even if matthews were still requires the balance was the violation so egregious in what they did on september twenty second september twenty first and twenty second was that violations so egregious that it would not in this instance ha been mitigated by or cured by as one of the cases said what was being offered post germination you can't get away from that balance that required balance even if there is a refusal so holding  ok and is ordered submitted