that case a north dakota sheriff from a deputy the ran against him and made negative comments about him during the course of that like now person curtis would like this court today nor would want to do it and they argue that this court should ignore it because it sheriff the sheriff is liable for his deputies conduct and has all the same powers and authorities as the sheriff and as a result the term that so long as the employee is sworn deputy engaged in law enforcement activities political loyalty is an appropriate requirement and notably here factually neither bruce nor quarter curtis disputed that they were sworn deputies engaged in law enforcement activities one of the rationale and jenkins which this court relied upon just a year before br told terminators and curtiss recent curtis's positions require a lot of what is the case that it requires political loyalty or are you really just arguing that there's an absence of of but forty to the contrary or really i think it's both i think they were both concensus the cases would prove that it is an appropriate garment based on the rationale in north and how they relied on james well when you say it's a requirement it doesn't mean that the new sheriff has to terminate anybody that has ever disagreed with him but that it permits a requirement that individuals who are going to be in such trusted positions with a shared not be in opposition to him as he proce well the reason i'm asking the question is because i don't see anything in missouri law that necessarily says hey political loyalty is absolutely an appropriate requirement because you do have that and i realize you make arguments why the statute doesn't apply but it's at least it maybe make that the last or are there maybe the last argue makes more sense to me which is that there's nothing and or missouri law that prohibits making political loyalty a part of being out of you know a deputy incidentally in the in the mist in the minnesota case in the minnesota case it appeared that there was some certainty as to as to whether political loyalty was appropriate in that scene and the answer was no that's correct in minnesota which is that it is a normal very there's a civil service you're right boys are here in between classes classified employee at will or the court in that case determine that because cause is required and these are merit based decisions with limited exception and they would like to buy a collective bargaining agreement case a year before share of call to action is simply just not apples and oranges missouri law would make the let me ask you a question i want to ask you a question about duties and the th circuit i think in opinion by judge pryor here we have twenty two deputies with vastly different duties one was a detective and one was sort of a computer id network person do you look at the actual things they do or do you look at statute didn't say what they were in the th circuit as at that point in time you have to look what that does but doesn't it doesn't the brady does focus on the actual duties i think it looks at the duties of the office slew of case law and frankly not all that consistent in various circuits construing these exceptions and when they went in in part because it turns on state law in terms of what the  capacity kluge in terms of their liberty to discharge it certainly and your honor yes and so to your point i want to address this the so called st responder statute because we make arguments in our brief several arguments why we believe that it's can to the statutes in the minnesota case and the st of which is and this is not an insignificant act doesn't appear within the chapter who's or a vote that defines the scope of the sheriff's authority or restricting his authority in any way it's under chapter sixty seven which is kind of a movement miscellaneous powers of government and it's talking about what political subdivisions get it and i do if you look at the bill is there a cause of action to enforce  no no there's no legislature does not specifically say someone can as a private right of action if if so i don't suppose we go say that is there a cause of action though under missouri law that would be not that i'm aware of no no i really can't readily answer your question but not one which i am aware but the language used in so you mean you think it's more of a regulatory statute where the legislature is telling subdivisions you can't make these prohibitions but it's not enforceable by individuals i think that's right your honor i mean i could give you my opinion it doesn't mean much but i'm asking what the law is and what i think the law is particularly clear i mean i know that it doesn't give you a right of private action within that statute and i think the purpose of the law was there were probably a lot of these old antiquated and books in counties and cities that said you know you can't run for office and things like that and writing with the counties to pass those that sixty seven  at its core does not in any way modify the obligations under fifty seven to seventy that a deputy has which are the same as the sheriff it doesn't change the fact that they are an at will employee serving at the pleasure of the sheriff and the sheriff does not have to have any cost whatsoever to terminate if they are his agents under the law and as such they have a duty to his their principal the sherif and more specifically if you look to the language of the statute it just doesn't apply to share in minnesota the statute at i mean there's any number of reasons i would also point out that it also is sheriff's as the potentially the class under st responders and it would be nonsensical to have a statute having a share repeating itself and doing something i mean there there could be a situation where a particular deputy takes a position that the governing body county commission for example doesn't like when they try to defund the sheriff's office to cut off that person's salary to as a as a warning shot to the sheriff that you better keep your guys in line or something to that sorry the statute in minnesota the legislature chose the term any employee or official of a political subdivision shall not here in missouri that language any official or employee is not included in the statute in the missouri legislature at the st ask you to chapter sixty seven references a different missouri statute defining political subdivision and that definition requires in order to be a political subdivision that they have the authority to levy taxes as the sheriff is a sheriff to federal felonies barring misuse of his office in the funds so even under that standard which there's been no case cited that would have seen me like a subdivision now could circumvent this prohibition just by having its official age and political activity because the officials aren't subdivision so i mean if the political subdivision is struck somebody to do it the county commissioner is a public works department person you mean i think that this is actually you as defined by missouri the missouri legislature is only talking about the body of the political entity that has the authority to levy access and so i don't talk about officials who make policy for do with that money and i'm sorry i'll wrap my thought here but i would like yours are pressed i'm certain that the government may not condition a public employee public employment on employees exercise of his or her st amendment rights with few exceptions the constitution prohibits patronage dismissal but is one of those exceptions in our cases are cases around the country sheriffs after they've been elected in certain jurisdiction and being able to dismiss those who they felt might be disruptive to the operation of the force or those who had had who who might be in positions of trust that couldn't be counted on so certainly i mean there are no there are exceptions to this general and it is that all of this circuit that just like any anywhere else like in most circuits government employees have the right to be involved in him pain that's just simply all this is is two guys who want to put out yard signs or to tell were to adopt the four circuits rationale i don't know that there's anything left that any sheriff's dept regardless if we talk about the i t gentleman at the i t guy who is ace sworn deputy may be fired but what about statements made to colleagues about the nature of the person's character who's going to work to come in that they are potentially criminal that's not that and that's not part of this case we're not alleging that we're not saying we're not expert protection for them so in order a specifically asked for protection of the statements made out on the campaign trail that we need to improve the sheriff's department we need to upgrade facilities we need to give better equip all the things that were said enough if we don't ask for more protection from speech we may suffer that consequence but we did not ask for protection from private comments made to friends and of course those comments they were relied on by the sheriff i don't think the sheriff knew about them they are absolutely made in the context of you know sheriff's deputies talking to each other they were put on facebook they weren't done in any way that would make them public or in any way jeopardize the integrity of their office and it really is a red herring we're not making that claim we are only asking for protect protection from the involvement in the campaigns that's it talk to me about state law though and unless they are essentially sworn by the by the sheriff and you know you know this is something i've dealt with for twenty some years i've been the county attorney for clay county missouri for most of my career i'm not currently but i have been and so dealing with your arms that we deal with all the time the mere fact that they are empowered by the sheriff doesn't mean that they're the same as the sheriff they certainly can't gate the county for budget or the sheriff or budget for it they can't enter into contracts all sorts of  tomorrow we're going to go deal with our break ins in this subdivision you know we're going to investigate that the the deputies don't have kind of discretion to say no no i'm not going do that i want to do what i want to do is a deputy well ok assuming there's some limitations the deputy still are considered alter egos by statute and by case law so then you need to have some affirmative showing that i think that there's a political point that the deputies need to have political protection kind of like the what they i think certainly number one to extend what you're saying you're heading towards the th circuit case of adopting that that again that they're huge change in baseball what counts is will be after overrule to what they would three additionally there are very specific policies of the sheriff's department that the sheriff said these are in play i understood that these policies existed when i took the office and there's a very specific policy in how you discipline shift or be chose not to even look at it he chose not to follow it he chose to just simply terminate people of course we're talking about eleven deputies here and there are two in front of you but their level involved are those statutes relevant though here i mean really this is all about whether or not to protect political viewpoints political actions political campaigning i mean the fact that he didn't get a due process here i don't understand that that is what you're arguing here is is a problem with the termination well i think part i think it's out hey can i do what i want to do and it took a measured follow probe to terminating mr know in this case no such evidence exists the evidence is the he's that we said no i chose not to contact the attorney i chose not to reach out to  i chose not to consult policy and chose not to consult statute i fired these guys within minutes of taking off and to me that shows payback that shows it's not a considered approach it's a it's an issue that was very specifically relied on is thompson versus shock two thousand and seventeen case quoting from at page seven hundred and ninety three when the constitutional right at issue involves joining working for or contributing to the political party and candidates of the political of the employee's choice we apply the test the very simple analysis it's the correct analysis if all or doing is campaigning if all the that's all you're doing you you get this court needs to apply  you know it's not a new revolution in the law this goes back to the iraqis this is forty four years in the making at this point you know there there is no doubt that this is clearly established important when shock and see said that it was clearly century after some of these important decisions out supreme court in their still efforts to try to say that doesn't say what it says there you know they have the right to just put up a yard sign to wear a t shirt that supports their friend  against each other so when we talk about the difference in political philosophy there is no what does it have to do with the standard i mean i'm just trying to figure out with who has the burden of proof here well i  against each other it is a situation where there are vastly different political theories involved it's not a matter so much of the political affiliation or in terms of party the concepts here have to do also with the sense of personal loyalty and in the decision about how will this office work with the kind of dissent that could destroy mourinho and the mr bruce or anybody was going to fight and they get to have that begin to define how they want that relationship to be you're saying it would be completely clear to  if the sheriff had a concern that's when you talk to your counsel you know shock if he says it is a clear issue it's result you're allowed to go out and campaign and not be fired and it just that simple  scott and they were the court determined that they couldn't find the law clearly established when it required a scrupulous legal analysis to reach to determine whether the played out right and that would be sure here even if you want to look at shock and say you have to look at it in light of a board and at the force or one of the four circuit if you are a sworn deputy engage in law enforcement activities which is not in dispute here political loyalty is required and so kohl under those circumstances that case being decided just a year before he took office any the court today the briefing that's been submitted to take the case one hundred reisman thank you