good morning may it please the court my name is marjorie branstetter and i represent carolyn ritchie i would like to reserve five minutes this appeal centers upon two primary issues one is the question of whether or not carolyn richie was a public employee or whether she was acting as a private citizen when she complained about the program that warden wanted suma created and ran we submit that the jury should have been allowed to decide that issue we do not believe that the court should have pretrial decided that this issue was an issue to be decided by the judge and by doing so by deciding that she was in fact acting as wasn't her a trial wasn't wasn't journey during trial i apologize but in essence what she did was she took away from the jury the right to look at the comments that carolyn richie made within the prison system and the primary argument that the defendants make is that it is because she admitted that she was a mandatory reporter that she felt that she had some ethical obligation to protect those who were vulnerable in society and she felt that it was those ethics that required her to report what she believed to first one is r twenty four thirty eight where she said because my profession and code of ethics i'm a mandated reporter i don't have a choice i have to report rebuke abuse and neglect especially of vulnerable populations and later she said that she reported because she believed that showing the rape videos to the female inmates she i believe they violated standards of decency and ethics of professionalism and they were damaging and hurting the inmates and those in that she appeared on earth to four four three is the defendant's position that that is the only evidence that goes to the issue of whether she was acting as a private citizen or as a public employee that there is your honor but that was not the issue before the court before the court below and what carolyn ritchie was believes that she had to report was the systemic abuse of women and not a specific issue of child abuse which would have been subject to the statute report to home you feel obligated to report well she felt obligated to report to basically anyone who would listen she reported to her boss she reported to the attorney general's office she reported to the e e o c and the hawaii disability rights commission so what  and the a c l u for some reason assigned from this problem the but i don't think you heard about this the jury was told that only the e e o c and the disability rights project matters not the attorney general not t yes aside from not but you haven't really arc in about that you know your honor we believe that her primary arguments about the fact that this entire this entire program her her employment your honor they yes your honor they believe that only the ones outside world we have we had a situation because some of the reports were at different times in the process so preventing the jury from having the opportunity to look at this did have an impact and was prejudicial to carolyn richie's position but it we believe that even the state admits that normally these issues should have gone to the jury and they would take the position that only when there can be no other outcome is it appropriate for the court to rule in this case there were so indicia that this was not her job she was not in internal investigations she was simply dealing as a part time social social worker she was told not to do this she was told to stay away from the warden she was still that this was going to circle back at her and all of those things should have been things that the jury should have been able to she just reported to her immediate supervisor correct or reported to his supervisor who then reported basically jumped the line and went over to the other division right right and showing but her reporting was in fact up up the line of her supervision it started out that way yes  yes and that's make of that well i think once it's in that is not dispositive i think the fact that she went up the if you have to take a look at whether or not the subject matter of what she was reporting was the type of subject matter that was her job to report well in her direct examination she said i told him that i was counseling and a female inmate who i consider to be mentally ill who needed me to intervene she was humiliated to the point of being hysterical so it seems that she considered that to be part of her job to intervene on behalf of the maids who were complaining to her you want to that is one example where it did relate to a specific inmate but the vast majority of her complaints about the pornography that was being that she believed was being shown within the prison about the shaming that was ongoing a lot of those were things that she had heard from others that were part of this entire program not necessarily patients or inmates who were she was charged to report wasn't that part of her responsibility her assumed responsibility for the help of the inmates well when you look at the specific job description that is not something that she's supposed to be doing and in fact should close a job description is not always determinative understood your honor and and i would submit that it was rather the entirety of the situation that has to be looked at not just one factor or another and so the fact that she started to do this by going up the chain was something that was not part of her job she was not an intern internal affairs for example there were no forms that she was filling out to talk about how the correction officers were treating the inmates instead it was something where she was told specifically honor i would submit that once the ninth circuit decided the posy case it was clear that this is something that is a question of fact that should not be and i believe that once the posey case was decided it became clear that it was a question mixed question of law in fact that should go to the jury the jury side the facts related to that and the judge applies the law that point well i think i think that what the jury should be asked is whether or not she was acting as a as a public employee or whether she was acting as a private person and that would determine whether or not the her statements would be subject to protected protected rights you can be doing both and still have her statements protect that's that's that's that's correct and you know the chain of command going that's correct and the concept that there was only one outcome is belied by the fact that pretrial in dealing with a summary judgment the court specifically said that it is clear that the plaintiffs spoke as a private citizen and then later obviously she came out a different way i think that in of itself suggests that there were two ways in which she could have come out the second set of issues for this court very substantial amounts of evidence evidence of the video itself evidence of an expert who would have testified that there was no therapeutic value to the program and that in fact it was dangerous to the out to the jury found that in mind her concerns were reasonable so much of france where there that was not the only area in which this would be would have been relevant to there were a number of different causes of action and one of the issues was qualified immunity whether or not warden work at zuma was reasonable in believing that he had done nothing wrong that appends on law and not on what the expert thinks is good psychology well i think the question is we're trying to to present to the jury how inappropriate this was this was not a question of the fact that ms ritchey didn't like the wardens they bought it they bought it as i understand it is they bought it she was reasonable i'm thinking that what they bought it was she was reasonable but they also bought that he was reasonable which is why they let him off unqualified to different reasonable right i mean the call first of all i think it's very odd that qualified immunity is going to a jury i understand we have some case saying that i can usually it doesn't and it seems very peculiar but aside from that it's about what he would have thought his legal obligations were not what he would have sought his professional obligations for qualified immunity right well the question is whether he believed that he was being reasonable in how he was treating but it's a different reason a boss not reasonable like a reasonable person it's reasonable in his understanding of his legal obligations understood your honor and if i had sought for a job out of what during but it was going to the jury and we believe that the jury should have been able to have a more complete view of what was actually being presented which they were denied but on the flip side the jury was given incredible amounts of hearsay which should never have gone to the jury the first and second investigations were filled with   but yes i'd be happy to know honor i have a supervening question the jury found as i understand it with regard to both the first amendment issue and the title seven issue that she didn't prove by her ponderous of the evidence as you suffer adverse employment action is no i don't understand how they could have done that because they were told that a suspension and he imagines mandated leave was an adverse employment action but they did and you  the question that the court had to address i believe that the court should have addressed was the question as to whether or not it would have a chilling effect to charge someone like carolyn ritchie with costs we believe that because of the public interest and i think that the evidence that we were attempting to submit also went to the scope of the public interest all of those issues should have led the court to believe that she should not have been subject to to paying the costs of the state is it true that she was seventy five years old yes you are and if i may reserve your area of your your honor is asked about the reports outside the agency yes she did make some reports to other agencies such as the attorney general's office to the a c l u the court excluded those reports and it was because there was no evidence that mr walker suma was aware of those reports and so there was no connection to retaliation he didn't know she had reported that he couldn't retaliate so that's that's why the claims that the attorney general was she there is no evidence that mr walker was aware that she had been contacted and so because of that her testimony was irrelevant and also the allegations about her reports to these other agencies the court excluded because there was just no causal connection between the retaliation and and the report's now in addition your honor i'd also like to answer a few of the other questions that came up regarding  are decided as a matter of law the posy case that came out in i believe two thousand and eight but there are other cases since the dalia case is actually two thousand and thirteen case and dolly actually relies on freitag although based on rule fifty then she could have been reversed so your honor i question the order because i think if the question had gone to the jury and there was only one reasonable conclusion i think that might have been  common expression among healthcare and social service people where you're supposed to report abuse and neglect and i think that says an important issue in this case i really don't understand like what it's supposed to  things not usually it has to do is children who are just able people and they're quite specific and they're not generic and they more than that they deal with the person's professional responsibilities not their job d is that distinction not matter or doesn't matter your honor i think it doesn't matter in this particular case because her understanding was that she had to report abuse and neglect was part of her professional ethics and right she told me part of her job not part of the job what's required is a practical inquiry as to what her professional duties actually are and she provided that she provided the evidence of what her professional duties were i'd like to point out excerpts of record two three ninety five that's the transcript of november twenty third page ninety one she says it's a part of her to go for work to comply with her professional ethics so she's the one who drew the connection there she's the one who said that this is part of her professional duties now separate and were made to within the chain of command and her she did make complaints to her immediate supervisor that's not disputed another factor was the subject matter of the complaints hurt she testified that she had responsibilities to all of the inmates not just the ones outside the l t s program with all of the inmates she also testified extensively about how she thought the l t s program was hurting the inmates so this this is the subject matter of her complaints related to her job testified that she was responsible to these inmates and so if there is a potential harm to their mental health it's related to her job it's not related to broad systemic corruption or abuse a third factor was whether she acted in direct contravention of her supervisors orders now mistrust or said that she was told to stay away from their brief actually says stay away from l t s that's not actually what the record says in fact what the testimony was from dr mitchell was that she was told to stay away from want it so much i think he was worried that there might be a physical confrontation between them and he told her to stay away from a consumer he did not tell her to say what happened what happened i suppose i can only speculate on your honor but what what what what the dr mitchell told her was to stay away not from l t yes he did not tell her to not make the complaints he did not of structure he did not harass or he actually helped her make her complaints he asked her to put the complaints in writing and he passed them up the chain of command so this factor very clearly it's in our favor dr mitchell did not obstruct or he hoped for all of these factors i asked miss france or i understand that the jury found with regard to for felt the first amendment and the title seven issue that there was no adverse employment action this year at some point have means anything else that happens is harmless essentially i don't understand how there was no adverse employment action since the jury was specifically told that the investigation and the suspension were adverse employment actions but somehow they found there wasn't so at the end of the canes but your honor they haven't raised the adverse employment action issue i know they haven't and i'm asking you  there was no an adverse employment action on either of these with regard to either of these matters even if there was retaliation now i suppose the difference maybe is that she's still entitled to try and put on a case about whether about her her or her complaints that were within her might have already been but if there was no adverse employment action decisions in the special verdict forms which found other elements to be not proven so i would argue your honor what on their own well in the one nine hundred eighty three claim the jury found no retaliation in the oh yes but that conclusions and so on it seems to me to make a huge difference whether those came in or not know your i respectfully disagree the report authors were allowed to testify themselves and so no but it reports themselves every when he then he chose who was going to do and he had them and he gave them the parameters essentially the information and he and they did go back to him they ended up with him actually the testimony was that  sumo did not have any interference in the investigations he did not supervise them it was captain lindsay who was the supervisor of the investigations furthermore when the investigations were completed they want to the supervisor of institutions division michael hofmann michael hofmann he concluded that these were objective and these are fair and just occasions so i would argue your honor there's abundant evidence in there indicating that these investigations were fair and even if you decide that they w some reports were made outside of the agency that means that all of the reports are suddenly protected speech even the reports that are within the agency and that's just not a correct analysis of the law the dol your case makes it clear that you look at each report on its own merits and value in fact some of the reports were found to be pursuant to official duty reports to the supervising lieutenant but other reports such as the reports to the police union were found to be protected and so the approach i think has to be the same as dalia and that's the approach the district court took you look at each report on its own merits you just because you make one report outside the agency doesn't mean they're all suddenly validated and i think that's a misinterpretation of it's i understand it's a bit confusing but that apparently is the case law the material facts have to be found by the jury even on a qualified immunity issue and the jury did find no retaliation counsel as to the c is it your position that there was no public benefit to the actions taken by this ricci your honor i believe it depends on how you interpret this case is this case just a disgruntled worker or is this case something that implicates important you know corruption or abuse issues but your position by position is is that i agree with the jury that this was a retell this is a simply a unemployment case and the jury found no retaliation and the feds are not the issue that we have to address in terms of costs yes your honor i realize that but i would argue that because the jury decided that this really happened after the television case i'm not sure what counsel would you agree that prison reform in prison practice is generally is an area that the public is interested in yes your honor but again this is a retaliation case there are other cases that address that kind of thing in fact i believe that the claims against the l t s program are being addressed in a separate case in district court but that's not this case but it seemed from complain about the practices in the prison the retaliation case stemmed from that so why isn't that a matter of public concern again your honor i would argue that this this case itself is a retaliation case and the jury decided that i would just like to return back to the question the judge burrows on asked earlier and that is about the finding of no adverse employment i really felt hers and i believe that the reason that they found it is because they believed that there was an adverse job action when there were and there was retaliation based on the reports up the chain that while consumer admits he knew about that the out but in other words yes that would be true if the problem was what when they thought that was caused that there was an adverse reaction cause cause of it was and i believe your honor that that was the confusion that was a result of them being told that they couldn't look at the complaints up to mitchell that was at zuma realized  had been hers and then he took the action lead to her being suspended and so we believe that that did color their their decision in that regard i would also suggest that the  dahlia case says that if a public employee raises within the department broad concerns about corruption or systemic abuse it could hardly be viewed as part of her job and that's precisely what we believe carolyn which you