philadelphia good morning mr jennings i will reserve two minutes granted thank you all i'll state at the outset for the benefit of both counsel there are many many issues here of interest to the court so we please there are many issues here is it clear that we are under the standard of the case i believe i believe it is not a letter carriers i believe it's crystal clear that there's i mean no doubt that that's john ging at all over saying is is the prohibition on political contributions to the of police officers at this point the firefighters as you know are out because of a district court decision  is unconstitutional in light of n t e u and that's what that's what the lower court held why not pickering to further complicate the matter why don't we that's why why don't we have ply pickering balance because that speech made as public meaning as public speak individual speech as opposed to a general end it's opposed to what this court said a generally a possible statute or a regulation as opposed to individual speech is the test that this court understood there to be individual police officer plaintiffs in this case yes who want to speak so why isn't that into the cause none of them have spoken none of them have been have been disciplined none of them have in fact spoken they've all thick testified in the depositions that they were afraid to speak because they've been speak they just the the prohibition was you can't get the you get very right or can't get paid well but what you're right was less offensive he just doesn't seem like it was challenging to me personally in this case is there doesn't seem to be any supreme court precedent  really is is directly on point on the facts of this this case even though this is of a challenge to the the regulation i would i would suggest perhaps that n yes you can speak period you can't do that you simply cannot do this but that's what the eight circuits has had already and and that's what the courts have said in upholding the hatch act and the little so what's changed i mean there's well there's some of there's some authority it's seems like anything the older we go the farther back we go the more trouble you're in right i mean you've conceded that there was a real problem in philadelphia of corruption yes that was that that was there that was and the key in the cases that have been adjudicated to date prohibiting political activity whether be federal workers state municipal workers or those have been fairly consistently upheld current when there's a broad based prohibition and we're not attacking that broad based prohibition on political activity what we're saying here is that that was then and this is now had not exist since one thousand fifty there's not a single fact in this record post one thousand nine hundred fifty indicating the existence of politico corruption in the police department misusing argues the proves the validity of her point well there are no problems and this is now but the court said well the city said the city argues that that that's proof that that somehow works well it also might be proof that subsequent the one nine hundred fifty we had what civil service in the same aspect of the individual officers working atmosphere is controlled by the collective bargaining contract whether how he is hires control completely by civil service by independent has to include a politician very very controlled testing procedure once he's hired it it's his his job security is controlled by it's performance you know by civil service or ops or through through labor arbitration if he's fired he goes to labor arbitration if you think if you believe the discharge is is unjust it's completely and totally different environment then it was in one thousand fifty indeed the up the proof again parts of the charter also has to solicitation on political activity and then we're not count showing those around are no no no i'm saying these perhaps could be other reasons why there hasn't been any corruption because of other provisions of the charter that the sides the one that's being contested today that would appear to minimize this but they do not red dot target speech and say this is speech you and i in reality the whole world has changed since one nine hundred fifty politicians don't control who gets hired fired any more proud you know no politics in the you know small hiring and promotion not that i'm aware of the promotion system or civil service you have a vigorous two party system here and or three party system in philadelphia you clearly don't have that my understanding with the live with the rise of the reform was the head demonic control of the republican party  control over for over the political aspects of philadelphia yes over promotions within the police department absolutely positively not and i humbly suggest there is not a shred of evidence in this record to to substantiate that belief well maybe it's just a common belief that oh that's how it works but has a someone it's been representing this organization for twenty five years and it's done hundreds of cases like this all right i can tell you the promotion system is watched like a hawk down to the hundredth of a point as to who gets promoted who doesn't it's all run by civil service it's done with written examinations or examinations the only people who are not hired or promoted by civil commissioner seven out of sixty five hundred if your view is so clear then why is the mayor taking the contrary i have no idea because he's the mayor i have no i have no idea because he's the mayor and we're  fact the firefighters have had now the pack for ten years not a single not a single case of political views anywhere in ten years for far far you have put your fire the the prevent an activity show which he does not the colorado river republican case under your position there and such bans can be based on historical data show how this particular band is in fact going to affect the government there's not a shred not a scintilla of evidence in this record indicating that fact none the courts reliance on a half an hour a dozen newspaper articles that there's corruption in the police department subsequent one nine hundred fifty read the articles has nothing to political corruption it's a dirty cop and that happens but they also had police were included in this particular prohibition astroland page one fifty five of the record the expert that they retained and the reason that they were police were were included in the in the you know contribution band was because of their control the voting booth polling areas that's that is in fact the reason that from their own evidence says page one fifty five that's the reason nothing else all the rest of this is just is just come out of out of that thin air the expert says the reason they were included was because the police officers were in fact pulling people at voting areas well we all know that doesn't happen when he and if i mean wanted if you wanted someone to protect and serve you you had to call the ward leader not the local before civil service that was before at one eleven bargaining that was before indeed we had control of the political system through the export and it's a heavily regulated system now and the best evidence is where single example just won since one thousand fifty to justify freezing the the free speech rights of sixty five hundred police officers and that's that's what the issue in those cases we were looking at the facts in both those cases you have to look at the facts and both of those and incidentally both of those neither of those cases discussed will shortz water all right shorts well here in this circuit is the a letter carriers you party well it was always that way therefore we're just going to pretend that it still that way kind of theory that that is no question about that however this circuit takes a more practical point of view and says show me show me where where it's that way show you have to come forward with evidence showing to justify freezing the free speech rights of police officers if you can fine if you can if you can fine but in this case th i'm just not sure i understand how you're relying on the evidence and pollard and reader because those cases were decided in the eighty's and the reforms there were in response to the pendergast machine right and say lewis was right that was in the application of the facts was not in dispute as it is here it was never in dispute they just simply tacked the policy they never to date they did not say wait a second this makes no sense this simply makes no sense to continue particularly in light of n t you simply makes no sense to continue of freezing the rights of people then fact just simply attack the policy and said it's time for the policy to go  or will they also as i recall i just double checked they also preceded n t right which obviously puts a whole different light and what's required to justify these types all the things that mr jennings saying about times of change in the world is a different place these could be said about the hatch act as well if you look at the letter carriers its predecessor case mitchell and even going back to ex parte curtis back in the eighteen hundreds the interest and i think in letter carriers the supreme court talks about the the judgment of history is that it is valid to make a legislative decision to that the government work force has to be shielded from political influences and that the  three different types of interests and these interests are things that have been really don't change or if they do it's for the legislature to determine that they have those are whether there is partisanship in the administration of justice particularly when we're talking about police whether there is the perception that one's police department is free from political influences and that and then there are employee protection of employee interest and but there  other provisions of the trigger that deal with protections of employee interest or the just like the hatch act did and there are a variety of provisions that the charter the people who developed the charter and put it to the electorate to for a vote they term and that these made sense and these don't it and is it clear that we're under a letter carriers i think we are although i mean i think we are because letter carriers is applicable to this particular type of speech and these particular type of activities or what have you we know that you use we disregard the no i don't i think entry you can be is can be reconciled and interpreted consistently but letter carriers deals with this particular type of speech in conduct when you get to n t you and the court takes pains because they are faced with the argument well what about letter carriers is this somehow we consistent because we didn't letter carriers and that is good law so i think to interpret to to to harmonize those two tests and i think the district court did this very well you have to you have to look at what each side of that balanced means they're both balancing tests and and she is certainly was not dealing with political activities and nor was schwartz well there they were dealing with pure speech of various kinds is supposed to the political contributions which there is entire lines of case law saying that this is a marginal type of speech which is actually less protected and entitle to less deference it's sort of like speech by proxy i'm giving money so that candidates neck and can speak i'm only making a sort of a general  you know i'm so i support him but he's the one who's really going to be able to speak to one of the ethics rules and a police officer could write a very compelling op ed to the enquirer correct as long as you don't hear she doesn't identify themselves as a police officer if they're saying i am i am john smith and i i support had a jones for with all these reason that's less influential than a fifty dollar contribution to their p it's hard to determine what is influential in what respect if if the officer is saying i'm he's not identifying himself as being part of the city in any way and he is simply submitting a letter to the inquirer and it doesn't seem to plug into any of the interests that the government employer really is that concerned about but when you're dealing with the is your jennings that everybody other than the commissioner and the deputy commissioner are fop members probably or at least they're civil servants and you know it may not be that the  a lot of the same even subtle type of pressures that i'm a new recruit and my sergeant is thinks that this is a terrific idea that we all could contribute to compaq i mean that's the point but there's a there's a mean if i'm not sure i understand the course of aspect of that i think when the when the case is really you're talking about not you know not hammer type of coercion but more of off aspect well that's the way it's being done in which case i would ask why doesn't the city just a limit the check off there's certainly no constitutional right to have an automatic payroll deductions correct so why doesn't the city just eliminate that if you're truly concerned about these officers being coerced well i mean there we have to let them go home to their families or of themselves and then to make a decision whether they want to send in a check it's it's not it's quite different than having a superior sticker floorman your face or look over your shoulder when you have to decide whether to check off an automatic payroll deduction is it not it's one of the interest and but it's not all of the interest and i think that you can address you might be able to address one part of things with one other i mean you know that the whole thing is a package that the the drafters of the charter felt was necessary and the charter can be changed it's a living document it's like the city's constitution but it can be changed by either there are two ways either of those twenty thousand citizens can submit a petition to city council and city council then put its puts it on the ballot or a city council could initiate it itself and they can say hey we think maybe we should rebalance this stuff it's time to it's time that we maybe we just need this and not that but they haven't done this what they've done instead is to say the courts should pick and choose and say this one is no longer necessary and i think it's a matter not only for and i'm not sure you're giving them enough credit i mean as i understand their argument they're saying this implicates their first amendment rights so there's an important constitutional interest on their side of the ledger they dollar judge no question that the city has an important interest in having a professionalized a political police force ok so where we have the difficult task of balancing those right too so you know where is the evidence do you do you disagree with mr jennings argument that the police that is a political force is a political that it's a different world you disagree with that do you there is it a different world i don't mean let me let me on eighty let me let me be more specific i was i was personally underwhelmed by your evidence of corruption because in every instance that you cited those were criminal acts those were rogue acts of individuals that just didn't seem to me to be political in nature and i did i misread the record is there a political problem to which you can cite that would cause this court to override some of the significant employee protections such as civil service protection such as collective bargaining such as for example the fact that the rights of privilege distinction in mcauliffe is no longer the law in the mccall affair or you know police they did that or told the party line or they're going to get fired right there we're we're we're in a polar opposite situation today to the end of that world are we not well there are some proof there is some more protection i mean there there were civil service laws even before the charter provisions there are there are stronger civil service lost today there is some protection but as we say in our brief these protections help in some ways and they don't help in others for example there it's what mr jennings is talking about if you have a pay if you can have an individual who can bring some evidence that there was political influence in his hiring decision or firing position or something then great you have a remedy but your that only deals with protecting the employees first of all rather than the interest of the public in and and  only catches the ones where you have a strong case there are there and some of the other cases of talked about promotions for example i mean even with mr jennings talks about how things are done so strictly by tests but there's always there's the rule of two comes into play there is always a choice at the end of the line of a number of these things whether you pick a or b and then maybe he gets another shot you pick b and then you pick a or c and you can pick c so there's always an opportunity for there to be some sort of influence at play so that mr raised the collective bargaining agreement civil service protections that were put into place post nineteen fifty i don't know that the district courts and a lot of time think i'm not what the judge said i would like to i was struck by this when i was preparing was and i think that the case law reflects this to a great degree is that the history of corruption in the city provides specific evidence that there is a concrete danger of corruption and that corruption in whatever form and reemerge and no question all of that is you seem to be saying that this is got to be a legislative decision and we simply have to defer because there's a potential there for regression and that's not the real the real history is what distinguishes it from being conjectural that provides that there is there has been a history that gives a reasonable basis for an assumption that philadelphia is not an  all the peace and love if these if this is removed i think also if you look at the political contribution cases in particular the ones that don't even have to do with employees per se but they are the cases that have to grapple with the rationale of corruption and their number of the cases this one in the second circuit and any which talks about do we do we have to give do we have to wait for corruption to reemerge and then say ok this was working well we have to lift it but what about what about the fire the example of the firefighters in the last ten years have there been evidences of evidence of political corruption i'm not aware of that but and is that is that significant or is it are they just have such a different job i think they have a different job and and a different vulnerability and police officers i mean that the the firefighters case was never by its terms was never intended to it didn't look at the situation of police officers at all it was looking at maybe whether firefighters had some role in doing instead actions but that the contact with the public and the law enforcement aspect and the fact that there was discretion and that and that the police are the in body and then of force and they have decisions to make with citizens and discretion none of that's involved in  firefighters and what they thought in the charter they were they treated the firefighters and the police equally at that time i mean and at that time there may have been more of the uniformed forces acting as a  whole but certainly police are a lot different than firefighters so so times change circumstances change and but your decision not to appeal the firefighters decision by the eastern district equity aspect you're mean the let's accept your version of the politicization of public employees in philadelphia as i understand the landscape of present all kinds of ashmead members the other union members that work in city government the firefighters they can be very politically active through their pacs they can they have a seat at the table when it comes to influencing the folks that have a say over how much they're going to be paid and what their overtime rights are cetera et cetera so that the police are at a distinct disadvantage visa v all of their fellow municipal workers are they not police have always traditionally been subject to different and more restrictions and that are what arena not always in fifty one chart of the firefighters and in the police were treated identical with respect to this political contribution van from that point but certainly the police were always treated more restrictively than the water department or the streets department or whatever and as recently as this court  in the green case talked about how police are you know they the public has to have a total confidence in their integrity and they have to be subject to more oversight in more more control and then from one thousand nine thousand and one nine hundred fifty one there was evidence that there was a a an utter or a systemic lack of integrity in the police force correct correct and during that time contribution were banned well so what's the what's the letter what's your what's the nexus let's let's assume that we are fully with you let's assume we're fully with you about the evils to be avoided not returning back to these troubled times what is the nexus between this contribution ban and the evil sought to be avoided in light of the fact that the evils occurred while the ban was in place the the ban and obviously there was still a problem and the city fathers looked at what needed to be done and perhaps i don't know exactly how what all the different measures in place control curbing political activities were compared to one nine hundred fifty one and just prior to nine hundred fifty one but clearly some strengthening and again i think you have to look at things as a package and then see after nine hundred fifty one mr denning seems to say no problem obviously this package worked now he is pulling apart part of the package and saying well this part we don't want all the package intrench is on government employees first amendment rights and it's not that the city is underestimating those or being blogged about them but there are they there are interests that the city feels and particularly in the case of police officers as as being that kind of last line where you need to be absolutely sure of their integrity where you want to you want to be very cautious about moving away from that and if the voters want to do that they have a method there seems to be a gap here between the setting certain principles some of them based on historical experience and current evidence and you seem to be relying more on the former rather than the latter am i correct about  recent experience for the past i think the past provides the basis for believing that there is still a present danger mr glaser the then share of the ethics board he submitted an affidavit in which he he stated that he felt that there was still the there were possible issues with you know police supporting judges and these contributions the coppice made in the past these are directly to city type offices there to people running for common pleas judge for a city council for the mayor for state rep but you know they're very local type of offices and that there was a possibility certainly for actual political decision and also for you know certainly for the appearance to grow  and the impression to grow among the public that the police somehow were able to you know have an inside track with other with the city officials and  i think we covered most of what i wanted to address i would point the court to the the political contributions cases because they're already if you have some you have a that would be one side of the balance and you are already allowed to restrict that even with the general public much arsenal it's controlled by the hatch act cases i don't think n t e u is contrary to that and i think that where we're dealing with corruption and says conceded in its brief there was a good basis for the passage of the law letter carriers also you know that they looked at the law forty years after neutral and  exactly which what father said is to state the reason apply and c e o that's that's this court's decision decisions torts while there is exactly why it said to do it you look at it you look at the circumstances and you hear  identified in the newspaper give i well i don't believe that an officer can do that even not identifying himself if you just take a look at page three ninety eight of the record which is the rules and regulations of the exported says any activity on behalf of who advance the interest of ok a candidate doesn't say as an officer going to find yourself an officer it's a flat prohibition i don't believe i mean that's not an issue in this case but i don't believe that that was that that is accurate with