good morning my name's dance wants now represent the planet pylint mr hove the central issue before the court this morning is whether the michigan public policy exception to the employment at will doctrine includes an employee's right of self defense in the workplace mr hope its position is a public policy that print in compass is an employee's right to self defense in the workplace i'm going to present fo points this morning in support of our position hissed why the district court in appropriately dismissed mr hope and complaint first michigan clearly recognizes as a matter of public policy the right of self defense second the district court narrowly in appropriately interpreted michigan's exception to the ant will employment that are in public policy that third the district court erred in finding section five end of the michigan concealed pistol licensing ect c p l eight twelve mbps citizen's right to self defense in the workplace fourth the district court inexplicably ignored in films or refused to address mr holden's constitutional arguments concerning the issue of the right of self defense in the workplace you notice the facts of this case are compelling i just want to spend a brief moment and mother's day june two thousand and eleven at four thirty am two armed robbers entered the walgreens in benton township michigan these two i'm individuals grouped together three or four people three employees put the gun to their head and was bringing them to the rear of the store the second robber ran to the rear of the store with mr hope and was working as a pharmacist leaped over the counter confronted mr holton in the little office pointed the gun at him and began pulling the trigger mr holden was on the phone calling nine one one moment mr hogan who had endured an armed robbery in this exact situation only three years earlier pulled his license concealed weapon fired three times didn't hit anyone and robbers immediately took off left through the front door all this occurred within a few moments mr exercise his right to self defense simply this is not an isolated sort of incident to the extent of i come from the city of detroit a very proud to say thirty minute wait time for police streetlights sixty no discoveries taking place in this case mr hogan in his complaint stated he was told he was discharged for violating the non escalation policy one which he had never heard of before that was the reason he was given for the isn't the employee still stuck because you don't even have to have an explanation the first place and you know i will goes both ways the employee gets to leave the next day as well your honor i agree with you to the extent of what your determination is in violation of a michigan public policy the discharge is can be challenged by the employer as wrongful recently the michigan supreme court in the make neal case of vs charlotte where two thousand and nine case we emphasize their point in saying that this is not some narrow data this public policy they expanded this to him to include a county regulation prohibiting smoking in the workplace and they said that employees would have a claim if they were discharged because complained about smoking that they would have a claim even if they were it will to challenge their discharge in the michigan courts and this court also yes eight point nine five one which is the use of deadly force in self defense in that specifically references in a business premises m c l a twenty eight point four two five and the in the course of the motion to dismiss hearing she specifically said then we said the transcript but you did you can see diddley didn't played it and you also didn't appeal the denial of the motion to amend it is true raised in response to the motion to dismiss did you notify the state that you were challenging the constitutionality of an act no we did not and you have a duty to do that if it is played in the complaint we do straight up played in the crowd you had  just looked for the a copy of your complaint to refresh my memory and i don't have it with me so tell me how you cleared the issue regarding the existence of both the self to fit statute  the statute specifically permitting the employee to have a policy not allowing a gun on the premises your honor we played it as a public policy violation citing general miskin public policy self defense we played the u s constitution the michigan constitution and several other stanchions were part of the us constitution if you're raising your complaint the second member ciaran or in the complaint how let's just say cept your distinction for how we can reach this issue here but there's no way you get around the duty to notify the state that you're challenging the validity of statute where there is a defense as a count in the complaint so i mean i don't know whether you want to continue to pursue this but if you do i can't imagine how we have the right to consider that without hearing from the state well your honor there is a second prong to this that i want to argue besides what i'm asking you a threshold question i'm just saying it's you know your complaint it's now your appeal and you get to decide whether you're going to push this but if you're going to push it i don't understand how we can proceed without hearing from the danger cho i'm just i'm giving it i'm saying you have a choice you can say well you know maybe we can rely on something else or no i want to notify the state and hear from them i have nothing further in their point except that based upon the employers can restrict employees from having conceal weapons or weapons at employment you're either challenging or you're not we are challenging that your honor that is correct because you're also challenging that on a second basis ok so we need to hear from the state then you might well in your need to hear from the state if the court considered that challenge in the court lower court did not consider that i would it be why would it take any cnts for  you to have gone through all this and come up here and we if we were to consider the constitutionality of this provision and we don't have the people we need in order to consider it i mean that just is a matter of thinking from in their prong is the case of mitchell versus the university of kentucky in their case would be kentucky supreme court held very clearly that in kentucky they had like we have in michigan stated providing for self defense and for concealed weapons being able to be placed in the glove box of automobiles they also had a statute that provided that universities could prohibit employees from having guns on their premises in the kentucky supreme court held that there was a conflict been never had to get to the constitutional issue in the conflict was the right of self defense trumps the university's unfettered discretion to prohibit employees from here guns in their car and there is exactly what we have here is well we have michigan state to state clearly provide for a right of self defense we also have a michigan statute that provides that the employer may decide not to allow concealed carry on the premises and that's exactly what they had in kentucky they had a stand shoot that allowed universities has an employer in their own fit or discretion to prohibit employees from having guns anywhere on the university premises and the court help that the right of self defense specifically the state should permitting handguns in glove compartment struck there and there was an internal conflict in kentucky like for us you'd like for us prosecution if an individual acted in self defense yes it has this other statute we've been referring to about employers being able to prohibit employees from carrying guns on to the premises even if they have a permit why don't those two things represent the coexisting public policy of the state of michigan and while even if even if one of those two provisions the employer one is unconstitutional why does it matter i mean this court doesn't determine what the public policy of michigan the is where look into the public policy of the state is articulated in its statutes court the authority to determine michigan public policy when the courts of michigan him not spoken upon the issue the legislature has spoken however the end it's spoken in a way that the case we've been mean that case is specifically referring to this kind of legislative articulation of public policy it does in the university of kentucky case again don't with this question of the public policy of kentucky does it allow for a right to the end will employment based upon self defense but that is something we could look to yes but certainly that's not something we're required to follow or consider persuasive i would agree and i think one of the issues in finding public policy many times as have other states found public policy rights has an exception to it will and i've said in a number of cases which here i thought that the mitchell case involved a statute that permitted individuals with license concealed weapons to store the weapon in a vehicle it did so that's not the right to self defense that's involved here it's a much more specific kind of statute the court references it is as part of a right of self defense part of right to have weapons those those rights to have a concealed weapon self defense the court says are connected and cannot be my time is up i just want to go back to forget for a second what the kentucky supreme court said about this i haven't read the opinion but i will go back and read it but don't answer this question by referring to it answer this question based on what i'm going to say your conflict between statutes point the normal rule is when you have two statutes in tension with each other the first job of a court to do is to try to preserve both you're not searching for conflicts in order to eliminate one statute and here i'm struggling with why a general right to self defense can't co exist with a rule that says employers are allowed they don't have to but they're allowed to say ploys can't bring guns to work right you can still use self defense it's not a limiting that right they're just saying if the employer chooses they can say you can't have a gun as your former self defense so i think they can work together even to the century you're worried about that you usually say this specific trumps the general right of self defense that's the general but the far more specific provision is a provision that says employers have a right that they don't have to say to employees you can't bring guns to work so forget the kentucky case i'll go read it maybe you're right but i don't understand how those very traditional canons don't answer your point i think the problem is the right to self defense is the supreme court has held a very substantial right in the circumstances where you hear every employees in workplaces that are inherently dangerous centric to arm robber workplace employers can't discriminate against people who seek to make application for concealed weapons thank you thank you three or just two or whether it's been expanded i don't think that's important i think what's important is at this point the michigan supreme court has recognized three plaintive appellate has just acknowledged that he's proceeding on the third exception the third exception  is where an individual exercising a right conferred by a well established legislative act and in the beginning if you didn't have this provision point four two on to be and all you have was the general right to self defense wouldn't that be pretty serious argument here i actually don't think that five then is is has the role that it's been portrayed to score five then certainly helps because i agree that it does show what michigan's public policy is but to start with the proposition five then is unconstitutional or more awful turns the whole process on its head it's not the employee that has a legal obligation to demonstrate a statute that gave it the authority vision charge someone it's the plaintiff's obligation to demonstrate a well established legislative act meant directly to conferring rights on employees put it a little differently you have a general right to self defense it doesn't distinguish employees or anyone else just as you have a right to self defen and then i think they are allowed to say even though it's a legislative policy to have this rule that says employers can restrict employees from bring guns to work they're allowed to say that's unconstitutional mean surely if the legislative policy was we have at will employment in michigan but not if you're black or not if you're white i mean you you you you would throw cast that overboard in terms of it being a legitimate public policy put enter into the equation so i don't understand why you need that argument isn't permissible which leaves you with the general right of self defense and that's why i asked my question because your honor i believe they're under michigan law to under the third except to shout out it's not just identifying a legislative an act like the criminal statutes that give you the right to self defense it has to be a legislative in hackney that's directed to confer rights on employees this is a workplace tort we're talking about will discharge and exception to at will discharge if what you're saying is true that could be anything back to my point so you have a public policy that isn't specific to employees employers but makes a racial distinction you know who cares you know you would still either pay attention to that or for it was invalid you would ignore it so i don't understand where you're getting this idea that the only public policies that are relevant and potentially can trump at will employment are ones that actually talk about the workplace i'm giving it straight from should all ski where the supreme court said that if you rely on a legislative  it has to be directed to conferring rights on employees i'm relying on the six circus decision you me where it said that the legislative action has to address the particular conduct issue even relying on the mcneil case which claims appellate says expanded it didn't expand the issue in mcneil at the kentucky case maciel case was in two thousand and nine supreme court cases the no smoking regulation where the debate amongst the justices of the supreme court was whether a county promulgated regulation is a legislative an act meant the majority said it was because it was consistent which should dol ski's third exception by dissenting opinion said i don't think so because the regulation which was promulgated by county commissioners is not statewide legislation none of the justices however disputed that the regulation whether you want to call it legislation and regulation was directed to conferring rights on employees was it gave them the right to be free from smoking in the workplace if it was any statute you could point to as an employee could come to your view is if the michigan constitution said individuals not only have a right to bear arms that the government can't take away individuals have a right to bear arms and consist of the right to bear arms has the right to self defense and no one private entity public and and city can restrict that right to bear arms ok so it doesn't mention employment doesn't mention the workplace you're saying that wouldn't enter into the  yes that's what i'm saying it wouldn't apply in this case if it was a problem to you it could remember the exception under exception three is very limited it's a legislative an active process i don't understand how back constitutional provision wouldn't apply to this case i think it's no different than what this court it or you couldn't fire him for bringing a gun to work i think you're hundreds no different than the cacique versus wal mart case that this court recently decided where the employee was discharged for testing positive for marijuana the employee claimed that the discharge was in violation of michigan's medical marijuana act or a public policy set forth there and what this court determined was that was not a statute that gave rights in the private employment setting it was a statute that gave rights to individual to be free from state action government prosecution that's no different in the plough no versus u p s case also the six circuit where that very argument was made in a play brought a gun to work he pointed to the  constitution said this gives me a couple because of cause of action and the sixth circuit said while you may have the general right under the constitution to bear arms you don't have the specific right to bring a gun into a private employers workplace there is no state action here this is a private employer so that my question related to your theory that the only public policy provisions that could matter are public policy provisions that relate to the workplace that's been your main theory and i'm testing that by saying he had a constitutional provision that did not talk specifically about the workplace but said the right to bear arms is absolute and it's not just the government that can restrict it no private entity it can restricted i assume you would concede that's not this case is a hypothetical but i so many would concede that would restrict walgreens ability to punish someone for bringing it to work if the seem like much of a concession if the constitution and the constitution is mandates don't apply in the private employment setting that's were in charge i just i just gave you a hypothetical provision that i would i were strictly everybody state and or private entity so just make the contest i would concede the point here but you're you're arguing that for instance the first amendment as it stands prohibits state regulation of speech but not private employer regulations absolutely and that's the law machine we cited to the price at case and also some decision from the eastern district of michigan you can't rely upon the first amendment free speech if you claim you were discharged because you were to go say something bad about a customer it's exactly what was at issue in the pricing case in the mission court said that's not an exception to employment at will i think that under a second exception if you're claiming you were failing refusing to violate the law i agree that the law that word the law has been interpreted by mission courts to be broad and it could be a regulation a statute a constitution we don't have a second exception case the paradigm we have here is in place claiming that he was discharged for exercising  right conferred by a well established legislative inaccurate and michigan law makes clear that not only must it be a well established legislative an accident but it also must be directed to confer rewrites on employees and your best case for that limitation is what well should also be said is that your honor i think if you also looked at looking at seven seven twelve of the northwest reporter second which seems to say when the reason for a discharge was the employee's exercise of a right by a well established legislative an act and or some other place in the opinion that says i'm look at the mission reporter six ninety six ninety seven but if you give me a moment i will that's just tell me what it says and then i can find days the magistrate judge that constitutional issue could be raised in conjunction with the original and with the original complaint the playing of did seek to rely on the constitution as a bases for his public policy claim and i think the only thing th at least thought that was an issue that was subject to litigation in this case i don't think so i think the magistrate denied it for two reasons one because it was prejudicial too because it was futile as to the prejudicial argument the magistrate pointed out that the district court judge judge naf has a primo she conference process where the parties supposed to identify all their arguments and defenses and the parties went through all these hoops did all this briefing the judge even gave the plaintiffs an opportunity to file a motion to seek certifications issue after the plaintiff denied that request or rejected that request the party started to brief six certification of what issue to whom what the to the supreme court as to whether there is a public policy exception first the defense of oneself of others and to carry arms the three issues at issue in the complaint looking at the complaint the complaint and paragraph thirty one has a reference to the right of self defense  defense of others is based upon constitutional statutory and common law see e g u s constitution and then to i don't know whether there's any other reference to the u s constitution but the complaint only has thirty four paragraphs tending to doubt it does that affect what can be argued in this this is a motion for judgment on the pleadings i believe it does your honor i believe that the issue of whether five n is constitutional was one that was sought to be added to this complaint but the motion was denied and since the he was denying it they said you could it could still be addressed that she denied the motion to amend it didn't become part of the complaint ok but  get even if even if it could your honor i still think the second argue raised is an appropriate one if you're challenging the constitutionality of a mission statute under rule five you still have to notify the state we have a concession here that didn't happen and even if we push past that forget that let's say the constitutionally wasn't going to still notify i mean if it's brought up as a defense you can still that's that's what sometimes happens in cases that the constitutional claim defense emerges later in the case you notify people then you get a briefing there's a way around that my response to your honor to the issue of whether it's a soon for discussion sake that the constitution was at issue here walgreens is not a state actor the constitution challenge to five then was a claim that the second amendment the united states constitution precluded the michigan legislature from passing that act then mr holton plaintiff should have sued the state of michigan was going to not affirmative discharge him because the statute said that must fire someone if they bring a gun in the workplace and said you didn't a from nuclear fire was going to do anything the statute merely said nothing in the statute says you can't you you're prohibited from having a rule that doesn't allow guns they didn't fire him in fact the plaintiff alleges that he was fired because he violated the non escalation policy not because he violated five then so whether five minute is constitutional or not really is not relevant if i then did not exist played it would still be obligated to identify a legislator management directed it conferring rights upon employees that provide a public policy except use at will discharge the only stanchions he points to are the criminal self defense statutes those prohibit there under certain circumstances but they have no bearing on the private employment setting for the only self defense we've been talking loosely about self defense provision you're saying the only provisions arse that you state debates also citing the second amendment line of cases but i think those have no bearing here again this is not the government seeking to restrict people's second amendment rights this is a private employer in a private employment setting pretty gun rights even those gun cases even the second woman kunt cases it's the plaintiff appellant claims are changing the landscape they all stop short of regulating private employment and they even allow gun rights to be regulated i couldn't prove come to this court today the right to self defense is not absolute why does it why doesn't it analytically simpler if you just can see that the sept tenth statute although applicable in a criminal prosecution sitting do express a public for individuals to be able to defend themselves but that but that right is not unlimited and it may be limited both through just the carrying the general provision requiring a permit and through the legislature specific recognition that an employer would prohibit carrying the weapon i think your statements fear your honor i don't me add that it's further limited and they were is my the the the confines of what can make a public policy claim under michigan law it just seems to me it's a lot it's just a lot easier to