so good morning your honor is my name is william weiss to represent the appellant in this case the more i can reserve a couple of minutes for rebuttal i really wanted to focus on a couple of things and i was worried that the court might have a lot of questions on the walker submitted the advisory one he puts as authority there so biased versus car sadi so i thought there's some sort of more pressure i don't know what he was thinking but it is interesting anyway you know we're not suing the employer in this case that's my first response to that and the garcia versus the vioxx case goes to great lengths to describe the employer's concerns in addition to the employee concerns and what the employer has to do in terms of being a government entity what concerns it has in regulating employee speech and how to deal with that worst are you know the counsel that was here before me also  not control on this case the supervisory liability runs against an individual and it's based on that individual's personal responsibility for the constitutional violation that doesn't require proof of an official that's true that's very true in this case stayed around long enough finally something that's pretty scary for us but i don't know that you'd have the same consideration because under nine hundred eighty three you're talking about basically another employer an individual acting under color of state law and to act under she's acting under color of state law because the state gives her power to do what she's doing that's her job i would argue like i did in the brief it's kind of like that ask john amato concept of dark mass you know in terms of their there are code of silence and code of justice that as a custom exist within the department mr ben ami broke that code of silence twice he turned in a supervisor for overtime fraud which charges the stain and then he raised the issue of the improper records so you have someone who's operating on around with others there that decide if you report supervisors or other people you will be punished for that and so you're not really getting into a workplace we're not going after the employer in this case and all those concerns that the court discusses concerning the employer and its rights and what it can do one time not do don't really fit into this specific fact defense but it can it has discretion to pay a judgment of any employee who sued in this context but she was the only defendant in the case that's a discretionary act that's me post judgment that's my understanding well some of it necessarily was prejudgment because the attorney general's office defended her so i guess the firms of responding to a monetary judgment that's a discretionary decision made by the state  because of the guard said he case i mean my response was probably inversely proportional mr mcmahon's you know when he saw that as probably irrational exuberance and i had irrational chagrin and i really had to read it over and over and over again and ponder and honestly it wasn't til this a few days ago looking at this that i realized you know we're we never seen the employer they're talking about the employer we're suing an individual there there's got to be some distinction and we're not trying to allege and it was never argued or no evidence was presented that there was any sort of policy or cost you know fishel policy or an informal cost them that the way the employer handles these kind of complaints so that's my thing all the way but when you read this decision and i've read it over and over i don't see any mention of that the the entire opinion is in the context of the employer so if they had made a comment that even just  know gratuitously that well you know the individuals can't be liable as well because they work for the employer or some analysis that argument might obtain but i don't see that in the case whatsoever it's all focused on the employer and what the employer can and cannot do honestly i don't know what happened to mr i thought mr gross said he was sued because he was a district attorney the head of the agency just like any agency that gets to the head of the agency's always named there were a couple other individuals as i was looking at it last night on line but i never did find out what happened to them so i can only go with what the opinion has and it's only talking about the employer there's no guidance for a supervisor you know with a separate kind of analysis so i'm just my argument is that it wouldn't bar the claim because we're suing miscue dini for her individual responsibility for a constitutional violation and that's a different analysis and maybe if you know depending on what happens this went to the supreme court you know what that would be and i want to predict that the other thing i wanted to mention was that on the the other arguments about the evidence i'm just going to leave that for whatever's in the brief i think i don't think those are the honestly the the strong points and if there were to be a reversal i think that's more lawyer think like just make sure you got everything and you think that you might want to argue but i think the jury instruction issue and the verdict is is a more troubling thing to argue because we have a jury instruction submitted by the judge where he in fact  quoting the ninth circuit it's a biased versus car study it was called and it's an incorrect statement of the law because he's asking the jurors to speculate on what the point of the speech was in the case on a nice circuits pretty clear that content is the controlling factor in determining whether there's protected speech secondly in prior decisions of this court the first one in particular on this case it was stated that mr ben ami speech was a matter of public concern so we have that as law of the case and then we have the judge ruling on a jam prior to going to the jury that it's as a matter of law the speech is protected then he gives the jury instruction samal what was the point of the speech and he gives this advisory verdict with in iraq tories about the point of the speech and now he's injected a completely incorrect statement of the law and analysis into the jury so you know mr mcmahon raise the point when we're speculating well maybe so we don't know what the jury thought but now they've got two competing things to consider one correct one incorrectly knows what they did and and because of that uncertainty i think in fairness that that would probably w because we don't know what they're doing and why do they why are they considering the point of the speech and whether it should have been a grievance that's already been decided by the court that it's a matter of public concern the point of the speech is irrelevant now so  i think that and plus under thirty nine c i don't understand how how when we have a jury trial where a judge has to decide that issue as a matter of law we now have the same jury decide who's the fact finder also deciding an issue of law to advise the judge on that had to be decided before it could go to the jury and mr mcmahon said well it's an issue of law therefore it's not for the jury and they can advise him on it but i think that's putting the cart mr mann yes good morning may please the court defendant and appellee marshall deni ask the court to affirm the judgment because not only did plaintiff get a fair trial and get an opportunity to present all the evidence that he's been clamoring about for ten years but there was no error committed by the trial court and there is no showing that even if there was error that it somehow prejudiced the outcome of this trial i'm troubled by this invention of the jury instruction on an again they're spending a harm shown or confusion shown to the jury the only thing that i can come up with way of explanation was that that was the the trial court's attempts to make sure that whatever the outcome was it was proper this is the judge who had been overseeing this case for so many years and keep in mind there was no action taken with respect to implementing anything from that advisory jury verdict form that is it was rendered by the jury and the judge never took any subsequent action upon it i can only imagine that the judge perhaps was going to take some action and implement the trier of facts opinion about the point of the speech if the been some other outcome in terms of a damage award against the against the defendant that is if an award had been rendered against the defendant at the same time the jury had found that the point of the speech was to a r a purely private grievance then perhaps the court could have taken some action to balance things and perhaps modify the jury's verdict now the question of it yes it is a question of law undeniably it's not a us judge walker said on the record a mixed question of law and fact is that well it may not be a write in the second appeal yes the court said in both well and but only one they said that it is does relate to a matter of public concern and it is protected speech and i said that in the context of a summary judgment didn't say that the court in ruling on the judgment the motion for judgment as a matter of law noted that the the then current standard under vs go steady was a very inclusive and forgiving one is what he said and that he was the court was not in a position to state as a matter of law that his speech was not protected so the court was really i think coming from the other direction in responding to the jama while to say look you haven't you haven't cleared the threshold there's not enough evidence presented to show that it absolutely was not and i think the court after two appeals frankly thought it was a better course to let it go to the jury i and i don't understand your response that comes back and said on the one hand yes we find you deanie liable for retaliation she did violate mr been on these rights and we're going to award some damages and at the same time they came back with  that advisory jury verdict form saying no the point of his speech was a purely private grievance in each of these four instances and i can only imagine that perhaps the court could have used that information to modify the first the damage award to say well you know the trier of fact has determined that in fact the point of his speech was not to air a matter of great private concern great public concern and therefore his speech was not protected  so and again nothing like that was done and again there is no evidence that the jury was confused it may have been conventional c it seems to me that the point of the argument is that the submission of that instruction the jury was confusing to the jury well that's certainly plaintiff's contention and it's not supported by a single shred of evidence and furthermore taken in the context of the entire trial the judge was overly inclusive in terms of allowing plaintiffs to bring in new claims or revive old abandon claims and present them to the jury and when they render their verdict  including the special verdict form they were given an opportunity to agree with the judge's assessment that this is protected speech that the speech does rise to the level of having first amendment protection because it does pertain to matters of public concern the judge said explicitly in clearly and again this hasn't been challenged by the plaintiff explicitly and clearly in the instructions what the law was with respect to a section nine hundred eighty three speech claiming any detailed forum look it's my also advise me what do you think you think the lies you mean that was the court's questions actually yes well not not what do you think the law is it wasn't asking him do you think this is your job or my job he was saying i would like to be advised by you the trier of fact you the people who heard all the witnesses accepted all the evidence and testimony what do you think was the point of a speech and you know i think this brings up a another important point that every single one of the nominees claims was was discredited or door debugged at trial every single one of them including this idea that his speech did pertain to some matter of public concern it became very clear when mr b the plaintiff himself testified that the point of his speech was to air a private grievance that is he was responding to some criticism of his workload he was criticized for having sloppy recordkeeping he was responding saying this is unfair i should be criticized because it's the predecessor agent who sloppy records i inherited that's why my caseload is in disarray he said this repeatedly it's clear in the record and other witnesses came forward to say you know  mr ben ami may have told that to me i don't really recall but it was in the context of explaining his poor performance and asking for a break and i think that i don't think the record is clear that every person who he supposedly told this to a no we're talking about a regional district administrator in the department of corrections parole division we're talking about mr been in his direct supervisor and we're talking about the defendant miscue dini who was in the chain of command between those two none of those three people reacted as if mr ben ami had told them something of great public concern that is mr but only claims of will i complain that there are dangerous felons running around and that this was creating a bad situation that's that was the claim made true or three years after this lawsuit was filed so at the time the speech was made it's clear from mr ben ami behavior and the people he told them that the only message in his speech was an explanation hey this unfair these records are not my problem they were someone else's and nobody reacted by saying gosh dangerous felons let's go you know start a manhunt let's take care of this and this was all fine was with mr ben ami mr ben ami has never claimed that well i made this speech and i raised matters of public concern and management never did anything about it that's never been the statement made here so again in the whole context of the evidence received at trial it really was clear to the court and to the jury that the point of mr ben ami speech was that it was just to air a purely private grievance again to have been a conventional to propose this jury instruction but keep in mind also the jurors are not aware of the finer points of hundred three law they don't know the elements the way that the attorneys in the judge might so they're it's just there's no evidence to support the idea that when the judge on the one hand said yes this is protected speech there's no evidence to show that the jury knew what elements had met and so they didn't know when the judge then it is you the advisory verdict form saying please tell me what was the point in only speech there's no evidence and it's inconceivable that the jury sat around and discussed the saying well gosh the judges already said the elements were met now he's presenting us with a question regarding one of those elements we must be confused what's the point of this i think that's just much too much of a stretch we were going we had a jury trial that mr ben ami had wanted through these many appeals he got ample time to present more evidence than he really should have been permitted to and that was to the defendant's prejudice i was allowed to revive plain speech that had been abandoned long ago i was able to twist the facts and none of it worked it did not convince the jury and you cannot pin that upon this simple advisory verdict form now with respect to this get demian her response story or scene because i certainly  judges in criminal cases seeking advice on sentencing well there certainly are places for it in the civil litigation system for example or a case of sounds in defendant in custody for miranda purposes i've made the determination that he was or he was not but i'd sure like to hear from you folks have you tell me what do you think he was   have a seventh amendment right to a jury on an issue you can't use an advice richard you have to use a real jury and if it's a question of law it's to be decided by the court now one can say in the case for example  your response is wrong my response is it's unconventional there's no prejudiced it's been shown and there's also it's never been shown i'm sorry how would you show  what could he show me so tell me what else he could have done to prove prejudice me to show that this advisory juror to form somehow prejudiced his case nothing comes to mind at this moment however again taken in the whole context of the evidence that was presented and the opportunities he had to present more than the claims that were litigated in the course of the case you had more than a fair opportunity in this case to to get the jury  to fire if the state chose to indemnify and that was not a settled question even at the time of trial it wouldn't be settled until the jury came back to the jury came back and said that she did in fact violate his rights and took these adverse actions against  involved coworkers and the state was not required to indemnify and pay those damages because that kind of activity on the part of the defendant did not happen within the scope of employment you know intentional constitutional violations are not within the scope of employment so that would have been the case here there was absolutely no indication that marjorie beginning was going to be indemnified there was no evidence and so it would have been improper to have given that instruction ok you're over your time