flat out white racists in our society but rather with the far larger number of americans who believe intellectually in racial equality but are quietly oblivious to injustices around them in for many years i think i was a lawyer in that number larger number a grew up in you know card i appreciate that the reason i brought that up there were into the twenty six teams i know you have a number of these cases come before you all the time you know the standards i don't need to go through and you know in large part my argument is give us a chance don't south at the courthouse steps and so in this case though because the facts are so it long and intense and create a image when you first read them of things that seem how could this happen how could these things have occurred in a community i think sometimes a tendency for a court and about say the district court did this but they get to see of human beings is to look at that and go out how could that have happened and that kind of taints the view and i think brief include several references to append the c's that apparently worn attached to the brief upon the initial filing and then i believe the clerk's office so advised that appendices were not allowed  right yes it definitely is the only thing was taken out what i think would happen is we put together a chart of this kind of summarize the claims are going mainly to help you because that looks and they rejected that because it wasn't in the record specific defendants a district court made a blanket statement that it was because he is applied to everything that really is true if you look at the record but even so it was can see that applied to the bigger portion of the claims so then the question becomes in not be applied to this pleading stage of the case that was rejected by the district court because it wasn't what up at the magistrate level but we have reasserted in the brief we do think there is an argument there that under rule fifty six it's it's certainly unfair to the rules to to conflict with the federal rules require and and allow somebody to be ruled on the t c p a type motion without development the evidence and so we do it for them but even so even having that in there we believe that the facts that were pled in or you'd have met that burden and so i want to go into how that works starting with defamation and i really think i may be getting guessing wrong because there's a lot to guess here but i think that the single publication rule substantial truth issues are kind of the bigger issues in the case i'm happy to try to address anything else you may have questions about let me start with a single publication simply put the one year from publication has been extent has not been extended specifically to cases but in the mayfield full hard case of houston in two thousand and fourteen the court which ultimately did this ms base of the single publication rule did so after the standard was applied and after discovery and i think one of things in our current situation in society with publications is how do we deal with the internet and we've been dealing with it slowly as the courts have been since two thousand maybe even with issues such as penal code statutes lessen people from harassing people online or creating fake profiles all the way to lawsuits under federal action allow you to assume someone for or tending to be your company or saying bad things about your company online what mayfield says is you have to look at the time and date of the publication was placed on the internet indication of report statements about that same publication about the plaintiff and then whether that initial court has been re republic edited change or altered in some way in order to do that analysis you have to have some discovery i do think we play this enormous amount of facts here and the attachments are to a fact pattern that shows that did occur but in order to decide whether the single public usual should even apply in this case at the pleading stage that's very difficult to do that kind of analysis for example if you claim it as in here and it's publications do that this person is being charged with thirty seven counts of fraud and the allegations are that they've done this in the news does this all the time right they they report on crimes before the person is guilty what the news does they're allowed to republic ations in a reassertion of all this fraud and theft and other things after the fact so under this analysis it would appear that there is some evidence that this publication has been republic size and maybe even altering change in some way and certainly been used against him again and the problem we have with the internet is but with a twenty four second news cycle five publish something tomorrow on the internet blog and then one of you read it and share it with a friend a week from now it's been published again and if i go back and edit a piece of it you share i mean this happens all the time but just because it's hard as i mean we don't need to do something about it if you look at the cases of the single publication there's a particular quote from one of the cases that says hundred three publication is complete on the last day of the mass distribution of copies of the printed matter as standard works really well for newspapers for periodicals and things of that nature but in the internet decide that standard is very difficult to apply because something can be mass produced every day every minute so i do think the court needs to look at at least the standard the texas started to come up with and at the very minimum say look guys we need to found it and i i will admit that i'm a little baffled by this finding the magistrate applying the standard to the turner versus keith york a television case which examined evidence to support a jury verdict not a pleading about whether or not substantial truth could defeat a defamation claim and in that case it says the courts must ascertain the statements quote in the sense that the ordinary reader would understand and allegedly defamatory publication should be construed as a whole in light of the surrounding circumstances now in this situation what happened is mr walker was it was it was stated in publications and stated in front of the are there not assertions made that are not part of what he's pled guilty to in other words there's some reference in the record and in the briefing about some altered documents and some a negotiated checks that are part of this accounting system but it doesn't have to be something that's part of the factual basis for the crime doesn't it no i agree there are some in there are some indications of that would apparently happen does he had he had created two different sets of invoices one for his that his wife accidently sent this to the to the district and they pulled it right back never got paid on it so this is sort of a this is nothing to do with accusing someone of theft and really fraud and theft are the things that if you accuse somebody of that it's to me this is like saying i tell my secretary of a headache and she calls my wife and say and tells her have a brain tumor with that's not substantially true to having a hit and death and fraud is not substantially true to i i submitted him was by accident get paid on it and then paid my taxes late i mean their bills are so far afield the to find their substantially true i think is a mistake on the part of the court below they in the magistrate incorrectly concluded this is what  who is trying to get jobs where they will be paid by a municipality to do that work is to is devastated if you accuse somebody of theft in almost any position where they're going to be handling money or seeking money it's devastating and so so to paying late corrupt not pay not not any type of fraudulent or false statement however the factual basis for the play did include this is not this is just to say that they were in a vacuum and they were we misread this and so we reported incorrectly in light of all the surrounding facts and circumstances seems fantastic frankly and so we believe that there's plenty of in there to to allow us to go forward at least and do some discovery on that particular issue of the therefore these fabrications are made by the media defendants and the consumer we call the conspiracy defendants are not  news accounts that i appreciate you asking that very specific question your honor i would go you with him again in looking at all this i mean i will have to look at that to give you the specific answer because i've read so much of although i hear you but i think we are talking about defamation so i would think that the particular words matter no they'd absolutely do and in fact the quotes that are in these quote them in our brief the quotes that are in there some of them are for example that he  committed had submitted false in a voice as to the to the board and i'm looking at one it fifty five ninety that says in his plea agreement walker signed a statement that he knowingly altered in ways says that were submitted to the school district for repayment in the amount of two million is rather kind of statement that you can tell us absolute and absolute specially in light of the fact that he didn't even submit them you know the facts that were from that were that is his wife had done this and number one the amounts are correct number false there's just there's no factual basis to them whatsoever and what's what's frightening about it is that the people involved in this even after the prosecution was over and this jumping with had some of the immunity issues but the prosecutors and of the agents involved actually were still pushing the board and pushing the board of trustees to to not hire him to cancel his contract to publish information about this which is an amazing thing  certainly beyond what i normally would see a prosecutor or a agent do after a case is finalized a term briefly to the tortious interference issues basically we put it in a  the facts that have been played show that the that mr walker had been treated completely differently than the other contractors he had been required to produce all of these invoices in the county and the magistrate just on the renewal as i understand he had the contract and then there you allege there's an effort made to sever that relationship and relax the contract directive correct there's two pieces to it there's the fact that he wasn't renewed which is the interference with respect of contract and the fact that during the contract he alleges that he was improperly terminated and wasn't given an opportunity to rebuild in the right way and that in fact when he was being given that opportunity there was a matrix evaluation matrix put together by the board of trustees which alleged all of these same things again this was a well within the statute limitations issue which i'll get to the moment there's that he had paid back two million dollars that he had stolen money that he had submitted false invoices which gave him a score on part of this matrix of zero which definitively excluded him from being allowed to continue work there and so i let you know under the previous interference issues i do believe that we are on solid ground on at least having played the sufficient facts to get us beyond twenty six because we have shown the specific interference with his contract and with his perspective contract one of the things that i want to address briefly is the is the issue of limitations and part of the problem if course it deals first with them the single publication rule and i dealt with it there that's a one year statute and i have talked about that but on these other issues i think what's happened is that if i was a group of defendants in this case i think i would use the same way each defendant is basically said look me personally or we've done this thing in this one thing that we may have done even if we did it was well beyond the stats of them it's a shame so we're out we shouldn't be here and have it fail to look at the issue of whether or not under a conspiracy whether the acts of one or two people the acts of all there are plenty of acts pled from july of two thousand and thirteen forwarding that's the political to your date  things that that occurred of issues that happened but not every single defendant in the case fell within that stand that time for it but if a conspiracy is being alleged and if a conspiracy of all these actions can be shown together then the acts of one in the statute would still apply to the others i think that's something that wasn't really addressed perfectly below it type of last the courts will look at that a little more carefully more than it affects them in play connecting the activities of all these individuals but i read this for the very first time and saw where it started i thought well why are we starting here why we're starting so many years in the past story when you read the whole thing you realise that the first eight or nine years of of issues that are played in there are really given to the court to show how all these parties are connected over time resulting in one ultimately happened to mr walker and miss haynes and so i believe that we've played enough is that well under that theory to under the idea that the person that assault her had the authority to do so and obviously simplifying with the magistrate said but that is also to me an amazing ruling there's no fathomable way that a non peace officer could be acting in the scope of his or her authority to assault another individual the idea that that could happen in fact there was a case i think given to the court yesterday was more somebody walker case where a bailiff escorted somebody out of the hallway who was trying to get into the judge's chambers i think from remembering that correctly well that's a bailiff a police officer in the situation that happened here ms hands was was assaulted allowed i mean the best example i could think it was landlord tenant law and lords get evicted and they don't get to go into the person's house and drag them out they have to have a constable who can do that because they're not allowed to breach the peace so i do think in the magistrate even had issues with this but the judge crowe overruled the magistrate and dismissed this claim as well and i just i don't i think based on what was before you that should be reversed with regard to immunity so what's been the last minute here on that  overall discoveries about whether there were they were working in their official capacity or outside their fishing capacity i mean we have pled that they were acting outside their mission capacity this applies to the members of d to the agents of the prosecutors those things have been pled their specific facts that show that they were doing things outside of the prosecution of the claims against mr walker and so overall our issue there is that we need to have and spent most of my time on what opposing counsel spent his time on which is the fact that this is a court case it's essentially a defamation case at heart and with respect to all of the school defendants both the school district the school district defendants that i represent and the two school defendants that are represented by mr gilbert there mute any tort claims that plaintiff brought we know as a matter of texas law that the school district is immune to any tort claim that does not involve the use or operation of a motor vehicle this has no factual allegations pled to involve the use of operation of a motor vehicle so all the tort claims against b i a state can be set aside as to all of the individual employees of the school district including the board of trustees all of them were entitled to dismissal and in texas election of remedies prims and that is because the plaintiffs sued both the school district and the individual defendants they sued each of the individual defendants and their individual official capacity by suing them in their official capacity they were suing the school district by suing both of them they made the irrevocable election to proceed only against the school district that disposes of the defamation claims the tortious interference claims and the assault claim against mr me all of those claims fall by the wayside under well settled texas law put simply all of the school district defendants are immune to those tort claims opposing counsel argued well we pled they were acting outside the scope of their employment and that takes them out of the realm of immunity their pleading employment test for the election of remedies doctrine is fundamentally objective it doesn't it's not controlled by whether there's an improper motive or an improper purpose if there's a connection to the job duties that immunity applies here the allegations against the trustees are that they terminated a contract that they had the power and authority or did not renew a contract they had the power and authority to enter into it squarely within their duties it's not even incidental that squarely within with respect to the other school district defendants they were doing their jobs the factual allegations that allegedly caused harm to the plaintiffs are that they exercise scrutiny over his billing that they made statements related to the district's contracting all of those things are within the scope of their not so this court and morrison recognized what the texas supreme court is so old is that you look to whether or not there's a connection to the job duties he was a board member at a board meeting attempting to maintain order that's a connection to job duties all of those claims fall by the wayside and require that the district court be affirmed the last piece i like to talk about briefly is the rico claims they weren't addressed by opposing counsel but of course they've been the subject of a significant amount of briefing and i will speak to rico globally to some degree on behalf of all of the appalachian i think the presentation we just heard highlights that this was primarily a defamation case and every one of the defendant happily is as valid and viable defenses to those defamation claims that they'll highlight on the substance as i just did the immunity one for the school district defendants but we know that defamation is not a predicate act under rico and the fact that there was so much focus on defamation really highlights the infirm on the rico claims that were brought below and have been argued here to this court and that's that those claims fail at every single step of the analysis on a rico crime in the first instance mr walker probably does not even have standing under rico because his only claim to damages are that he had an expectancy to another contract this court squarely rejected that argument in the gill ramirez case holding that a mere expectancy that you might someday get another contract is not an injury for  purposes let alone foreclose as the rico claim because it negates honors also no separate rico enterprise here bargain article no separate rico enterprise here i agree or honor there isn't a separate rico enterprise and there isn't even a pattern predicate acts were official oppression and misuse of official information those can't be predicted acts as a matter of law because they're not there or they're state court offenses but they don't meet the statutory definition of winter state court defenses can be pre for purposes of rico i agree judge that there is no enterprise properly clad and that's independently fatal to the rico klein finally those few predicate acts that are identified even if the plaintiffs could identify more than two they still haven't identified a pattern for rico purposes and that's because of the additional requirement of continuity which as the panel knows ricos designed to strike at long term organized crime and so that you have to have a long term long running  in order to satisfy rico's continuity requirement in the melvina case this court held that you can have more than two predicate acts but you still don't have a rico pattern if you don't have the requisite continuity here the only predicate acts that you could even say came close to being pled all occurred within a very short time in a very discreet period related to mr walker's criminal prosecution as a matter of law that single of them can't constitute a rico with the prize because it's necessarily closed one victim does not constitute a rico pattern and also did the the i ask he in fact issue any payment to walker or his company based on any altered documents or any  may please the court my name is chris gilbert and i represent former b ice t trustees mike neal and tom neal than i've asked my co counsel for sixty seconds to briefly address the issue of scope of authority as it applies to the assault claim against mike neal judge prone below properly found that under texas education code thirty seven point one zero five which gives the school board the authority to each act undesirable people from school property mr neil's actions in removing jesse james from a doorway that she was blocking that would have led into a room on the school district property where they were holding a press conference so that a member of the press could attend that press conference was at least incident to his duties as a trustee mills actions were no different than the bailiff we believe in morrison versus walker and certainly no different than the h r director and rosencrantz for salt suhler which is cited in our brief that restrained physically restrained any employee from talking in a meeting both of those employees were found in title two immunity and we would ask the good morning me please the court my name is robert karnik and i represent the international brotherhood of electrical workers the i b e w and my task this morning in the time that i have a lot of is to address the issues in this case that affect the i b e w and those defendants who are allegedly affiliated with the i b e w but as an initial matter i need to mention that the various issues rather none of the issues raised by opponents counsel the t c p a single publication rule the substantial truth defends the whether tortious interference has been properly put the effect of his conspiracy claim on the statute of limitations of salt and immunity have any effect whatsoever on the claims against the i b e w i do want to talk about the district court holding that several of the state court claims asserted  against the i b e w were preempted by the exclusive jurisdiction of the national labor relations board but before i do that i need to say at least a few brief things about the complaint agents as a district court stated in the complaint actually contained very little other than includes a restatement and section headings so if you look at the complaint itself it says that the i b e w used it allies for assistance those sorts of broad general vegan conclusions which the district court described as a void of factual detail simply with respect to any of the claims asserted against the i b e w well established an agency cannot be played in a conclusion remaster this complaint labels literally label several defendants as i b e w agents but that label is no substitute for the actual allegations of fact showing that an agency relationship existed between the i b e w and those so called agents allegations of fact that are nowhere found in this complaint when one looks at this complaint from the point of view of the claim to get the i b e w and the so called the i b e w agent it is impossible to determine who is alleged to have done what on whose behalf and so the pleadings here simply do not provide any basis for holding the i b e w or the so called i b e w defendant liable for any of the claims asserted in the complaint now preemption the district court held that the claims against the i w defendant for tortious interference work and civil conspiracy and defamation to the extent not based on malice are all preempted by the exclusive jurisdiction of the national labor relations the appellant's in this case concede that those that defamation claims not based on malice were properly deemed preemptive but not the tortious interference in civil conspiracy claims the applicable stand for n o o o or a preemption is not in dispute state claims based on conduct that arguably prohibited or preempted by the national labor relations act is i'm sorry prohibited by the national labor relations act is our preempted magistrate judge given in this case and district court judge crone agreed that mr walker was essentially accusing the i b e w and i b e w agents of committing an unfair labor practice trying to force him to join the union and then retaliate against him for refusing to do so there is no question whatsoever that it is an unfair labor practice under section eight b one of the national labor relations act to try to force somebody to join the union or to retaliate against an individual for refusing to join the district court cited various rb cases the appellants have made based on similar patterns you collins made no effort whatsoever to distinguish those cases the district court also relied on operating engineers versus jones ironworkers versus perko both cases in which claims against the union for tortious interference and conspiracy redeemed preempted because they need to case the underlying claim was in on your arse may please the court who counsel tom letter very representing the examiner defendants and history of the district court properly dismissed all of the plaintiff's claims against these defendants under both the texas citizen participation act and the rule twelve b six i'd like to discuss plaintiff's waiver of the argument that the t c p a does not apply in this case and mr walker's failure to plead a viable claim  tortious interference or civil conspiracy i doubt i'll have time to reach the rico issues over oil mr brushes presentation along with measure judge good ones and judge crow's opinions all those the bottom of record page eight nine nine four and carrying over to the top of record page eight nine nine five plaintiff's counsel concedes that the t c cleat p a a applies to each claim brought against brought by walker against these defendants and plaintiff's counsel again concedes that the t c p applies to the rico claims and everything else at page nine zero one nine also at tab one day counsel conceded when the nonmoving party failed to object to its application and here even if there had been no waiver there's no conflict between the t c p a and federal rule twelve based on this record these defendants relied only on the fourth amend complaint and documents referred to an attached in touch to the fourth amended complaint the two examiner articles at issue judge duncan we certainly agree with you that the words matter in this defamation case two articles or it taps to a into b of the bench book mr and they were attached as exhibits two and twelve to the fourth amended complaint mr walker's factual basis and stipulation supporting his guilty plea was referred to throughout the complaint and it's attached bench book at tab three and it was attached as exhibit one to our motion to dismiss so on this record the plaintiff's conclusory allegations were insufficient under both the t c p a and federal rule twelve now let me turn to the defamation claim which is barred by the board for several reasons first the statute of limitations and i want to address the single publication of this court's prior holdings or the single publication rule second the articles were not substantially false as judge get one analyzed and i'll try to discuss that third and we didn't hear anything about this from the appellant's counsel but the court's below found also that mr walker was a conceited public figure limited purpose public figure and he never challenge the lower court's decision that there was no actual malice pled or stablish so that issue waived on appeal for mr walker allege no personal no facts that would support any personal liability against mr dodd or mr rio and under texas law that that is insufficient and again a grounds for dismissal so first is the statute of limitations kelso is really asking the court to overrule both nationwide which was decided in zero seven or six or seven and hamas which was decided eight by this court and he's asking the court of make to overrule those decisions when they defaulted entirely on their obligation or their right to ask for discovery under either the federal rules or the t the court does apply when the when the pleadings negate a viable defamation claim to the court certainly it was a single publication rule at the twenty six stage let me talk about the waiver in this respect plaintiffs never alleged any facts such as republic xing reposed being editing retracting correcting that sort of thing that arguably could have restarted the statute of limitations so there was no allegation to support the inference that discovery would lead to any relevant information even if they had asked for it plaintiffs waived every opportunity they had to ask for discovery they might never sought discovery under the federal rules  the t c p even though the t c p a has a specific provision allowing discovery for good cause show plaintiffs never responded to defendant's motion to stay discovery plaintiffs never objected to magistrate judge ghibellines order stain discovery they agreed to an expedited hearing at that hearing they never asked for discovery and they acknowledged in their briefing page thirty seven that it was a deliberate tactical choice not to seek discovery and to agree to an expedited hearing a couple of words on falsity in substantial truth a magistrate judge give them properly place the burden on the plaintiffs to allege and establish falsity the standard is the same no matter what stage of the the enterprise or ms crumb and six of them are identifying the articles that are at issue six different articles the other two basically say that the enterprise was used by imperative other members of the conspiracy so his actual absolutely no factual content whatsoever in the complaint to substantiate the conspiracy claim that tortious interference claim the rico claim none at all to the extent to which  defamation claim is asserted here piers noting at the outset that this was daily reporting news reporting by a local newspaper on a matter of significant public concern and walker himself or first to it in his sentencing memorandum which is part of the record is a controversial case that has vexed and divided the community and warranted deep degree of following the articles of the enterprise were absolutely accurate and defamation claims were properly dismissed both in substantial truth and fair report grounds walker says in his brief and this counsel said here today that the media defendants had accused him of theft and fraud but if you go through the six articles by the enterprise not a single one of them says that he pled guilty to or engaged in theft or fraud and also that simply is not true with respect to the enterprise essentially what his claim comes down to is saying that the plea agreement was misstated because in each one of these articles there is a recitation essentially of the plea agreement that he entered into and what he is saying here is that he didn't actually agree that he altered invoices and submitted them that there is a passive voice use stories some linguists a passive a vase of  know mistakes were made invoices were altered invoices were submitted and he points to the critical paragraph in the plea agreement for b and for b starts out at the very beginning by saying that he submitted in voices and it ends after it deals with these specific altered invoice that he takes issue with by saying that there were other altered invoices that were submitted by him so to say that he s defendant and the claims against him arise from a slander an oral publication not a written publication so there's no argument that the one publication rule has any uplink ability whatsoever all the claims against mr getz arise from that one single july and i don't represent corey crenshaw who was special says u s attorney the time and then acting district attorney jefferson county but arguing on his behalf and representing the law enforcement the defendants as a group  one thing about this complaint is that in the recitation of the legal claims against the various defendants none of the law enforcement defendants were specifically named so it was impossible to tie any of the fact allegations to specific legal claims and to the extent that they can be tied to legal claims all of the claims brought by the plaintiffs were barred by absolute prosecutorial immunity and this is made clear from the complaint is efforts to secure restitution on behalf of the victims all of those as a dish report correctly recognize are prosecutorial functions for which these defendants have absolute immunity and as for crenshaw there are some allegations by mrs haynes that during her criminal trial in state court mr crenshaw who was the acting da at the time communicated with the prosecutor during the conduct of the was an issue with the way the record was printed and then reprinted by the when we got it so i will these numbers are rights let me give you the exhibit numbers to our petition with their five six and seven the page number started fifty six ninety three according to this but i'm not a percent sure the numbers correct anyway and all that to say the bowman enterprise of these three articles which are all in two thousand and fourteen and going to the specific words said things such as walker submitted fraudulent invoices to both  exhibit seven the article says that he knowingly altered invoices that were submitted to the school district for repayment in the amount of two million dollars that's not at all true either  parties specifically i just want to get to the articles in two thousand and fourteen where it's not just kind of close it's completely off the chart in terms of what the truth is one of the things that wasn't mentioned and i the things that ruled that the facts as put were not objective really reasonable under the civil rights violations and of course immunity doesn't apply to these either and so i do want to say that the case law which has been cited in the brief says the all you need is a short and plain statement of the claim that's all that's required under a civil rights violation and in that regard the facts that were alleged with regard to that were both the oversight invoicing issues the including me not including mr walker and the request and making up of the false statements both orally in the paper in the evaluation matrix and specific request of attendees of the texas alliance of black school educators for purposes that seemed to be only racially motivated something he attended in the court way that evidence  against walker in evaluating the twenty six i just think that the court would too for him looking at the facts and trying to infer what really happened from them against him instead of doing the analysis that i think the six wires and so i do believe there's been sufficient evidence played into the civil rights violations of my voices disappearing with regard to the the other issues that it's impossible sitting here today for me to go through all the facts that were planted the evidence and say here's where this is where this is it was i mean what i would have needed a chart we had a chart and i thought would bring that it would have filled the wall but again implore the courts and just look at the specific in the petition and match those up with the cause actually i think in our brief what we tried to do of course we didn't draft the original petition but we did draft a brief we tried to break it into pieces so the to make i say this is easy as possible look here stack i want to start laughing but that is easy is it possible to go through them one by one so the cortical analyze them to you know in order to do so this is not a case just about defamation that is a big chunk of the case you know although i did spend some time on that this case is not just about that it's also about the civil rights issues and it's also about the breach the interference with his contract i don't have anything else to talk about while in the briefing for anything else unless there's any didn't talk about the preemption it's too much again because it's down in here but you know the issue there of course is whether or not the claims are deeply rooted in state interest and we know that's what the standard is i think the winfield case which is from this court we would we would believe that contract which is a state claim is certainly part of a state interest so i think we've pled or attempted our best players counsel to their best to plead sufficient facts and cover that winfield's the case for the short answer is i really want to spend one second to to thank you for having us come down here we're expected to be doing that in a case like this we're glad we were able to it's a lot for that i apologize that it's so much for