[00:00:02] Speaker 03:
Okay, and each side in this matter has 15 minutes total.

[00:00:18] Speaker 03:
Good morning.

[00:00:32] Speaker 04:
Good morning.

[00:00:33] Speaker 04:
May it please the court, my name is Julianne Fleischer and I represent the appellant, Pastor Dennis Hodges.

[00:00:38] Speaker 04:
I'd like to respectfully reserve two minutes for rebuttal.

[00:00:41] Speaker 04:
Your honors, this case concerns a bedrock constitutional rule.

[00:00:45] Speaker 04:
The government cannot create a religious test to hold public office.

[00:00:50] Speaker 04:
While at times commonality of political purpose may be an appropriate requirement, commonality of religious belief is not an appropriate requirement.

[00:01:00] Speaker 04:
The mayor's actions toward Pastor Hodges crosses this constitutional rule.

[00:01:04] Speaker 04:
By punishing Pastor Hodges for his religious belief, the government applied exactly the kind of religious test that the Constitution prohibits.

[00:01:12] Speaker 03:
So just factually, so that I can get this on point, he was not reappointed.

[00:01:21] Speaker 03:
He was not removed during his first advisory term.

[00:01:26] Speaker 03:
Is that correct?

[00:01:27] Speaker 04:
That's correct, Your Honor.

[00:01:28] Speaker 04:
The mayor exercised his veto authority to veto Pastor Hodges' reappointment to the police advisory board.

[00:01:36] Speaker 04:
But that veto authority was exercised as a result of Pastor Hodges' religious belief.

[00:01:42] Speaker 04:
Well, OK.

[00:01:43] Speaker 03:
But it's a volunteer position, is that correct?

[00:01:49] Speaker 04:
Yes, Your Honor.

[00:01:50] Speaker 03:
All right.

[00:01:50] Speaker 03:
And I note that you are arguing that you would like us to apply a pickering standard.

[00:01:57] Speaker 03:
And Pickering are people that are actually employed.

[00:02:01] Speaker 03:
Is that correct?

[00:02:02] Speaker 03:
Is that a distinction?

[00:02:03] Speaker 03:
That's correct, Your Honor.

[00:02:05] Speaker 03:
All right.

[00:02:05] Speaker 03:
So in his first, he's a volunteer and my understanding is he is an African American.

[00:02:14] Speaker 03:
He's a pastor and he has, he held either a chief of police or high police positions, correct?

[00:02:21] Speaker 03:
That's correct.

[00:02:21] Speaker 03:
So the first time he's appointed,

[00:02:23] Speaker 03:
And and the mayor does not exercise a veto on what he's appointed and he's in the first advisory term things come up during that and there are attempts to

[00:02:34] Speaker 03:
try to remove him in his first volunteer term, but those don't occur.

[00:02:39] Speaker 03:
So we're talking about his reappointment as a volunteer.

[00:02:43] Speaker 03:
Is that correct?

[00:02:44] Speaker 04:
If I could just add one minor clarification.

[00:02:47] Speaker 04:
The removal attempts actually occurred in his position as a county commissioner.

[00:02:51] Speaker 04:
So his religious beliefs were actually disclosed.

[00:02:54] Speaker 04:
while he was sitting as a county commissioner.

[00:02:57] Speaker 04:
So that occurred, and then a year and a half later, the mayor exercised his veto authority to veto his reappointment to the police advisory board.

[00:03:05] Speaker 04:
So there's actually two.

[00:03:06] Speaker 03:
His county commissioner position is not what we're talking about here.

[00:03:10] Speaker 04:
That's correct.

[00:03:10] Speaker 04:
But just to clarify that there was only one removal effort, and that was related to the board of commissions attempting to remove Pastor Hodges from the commission, which ended up being unsuccessful.

[00:03:21] Speaker 04:
And then the only time that his removal or his reappointment was denied as it relates to the police advisory board relates to the mayor vetoing his reappointment to the police advisory board.

[00:03:33] Speaker 02:
So in your opening brief, you say Pastor Hodges was not appointed by the mayor.

[00:03:37] Speaker 02:
That just seems to flatly contradict the municipal code.

[00:03:42] Speaker 04:
Your honor.

[00:03:43] Speaker 04:
And actually, I believe it's a docket entry 20.1 that was actually submitted in the request for judicial notice by the mayor.

[00:03:50] Speaker 04:
There's a memorandum that actually indicates that a city council person nominated Pastor Hodges for appointment to the police advisory board.

[00:03:59] Speaker 04:
And that memorandum was actually sent to the city council, which has the authority to affirm the nominations.

[00:04:06] Speaker 02:
Right.

[00:04:06] Speaker 02:
But the appointment is by the mayor.

[00:04:08] Speaker 02:
There could be

[00:04:08] Speaker 02:
nominations by the council and there can be confirmation by the council but the appointment is by the mayor correct that's correct your honor pastor Hodges was appointed by the mayor correct according to the record no but your honor even what you just said was a nomination and a confirmation it was an appointment

[00:04:27] Speaker 02:
I mean, I was listening very carefully to the verbs you used.

[00:04:30] Speaker 02:
You never said the council appointed him and the citizens advisory board municipal code says the member shall be appointed by the mayor and confirmed by the council.

[00:04:40] Speaker 04:
Yes, your honor.

[00:04:41] Speaker 04:
And I wouldn't disagree with that representation.

[00:04:43] Speaker 04:
I would just say that in the record and in the first amended complaint, my client's understanding and recollection of the events of his appointment or that a city council person nominated his appointment, that he was confirmed by city council and that the mayor

[00:04:56] Speaker 04:
had no involvement.

[00:04:58] Speaker 04:
Again, this is at the motion to dismiss phase.

[00:05:00] Speaker 04:
So whether that fact is not true or inaccurate, that would have to come out during discovery.

[00:05:06] Speaker 00:
But Your Honor- If the panel were aware of a memorandum on the city's website wherein Mayor Gloria does renominate Hodges, would we take no judicial notice of that?

[00:05:22] Speaker 04:
Your Honor, you could, but I would probably just maybe even clarify, and it might be helpful for the court, that whether or not the mayor actually appointed Pastor Hodges does not, that doesn't change our analysis of what this court should do in terms of whether the policymaker exception should apply.

[00:05:40] Speaker 04:
So generally, and this court in... Well, as you can see, we are bound by lapis.

[00:05:46] Speaker 03:
It's a three-judge panel of our courts.

[00:05:50] Speaker 03:
So we have to follow that.

[00:05:51] Speaker 03:
And so if, in fact, we were to find that the policymaker exception to government terminations, if we think that Lathis controls this and that he had the exception, then you lose, right?

[00:06:09] Speaker 04:
No, Your Honor, for a couple of reasons.

[00:06:11] Speaker 04:
One, Lathis is actually very factually distinguishable from this case for a couple of reasons.

[00:06:17] Speaker 04:
In Lathis, the panel there recognized that Lathis had the authority to speak on behalf of the person that appointed them.

[00:06:25] Speaker 04:
They interacted with the public.

[00:06:27] Speaker 04:
The board there held public meetings.

[00:06:30] Speaker 04:
The advisory board member was required to interface with the constituents.

[00:06:36] Speaker 04:
That is not the case here at Hodges.

[00:06:38] Speaker 04:
On docket 20.1, page 12, it lists out the specific duties of this advisory board.

[00:06:44] Speaker 04:
And nowhere in that list of duties does it say or give any authority to an advisory board member to interact with the public.

[00:06:51] Speaker 02:
OK, I'm going to look at paragraph 22 of the complaint for Pastor Hodges.

[00:06:56] Speaker 02:
Quote, in his advisory board appointment, Mr. Hodges served as a bridge between law enforcement and the community and sought to build trust between the public and law enforcement.

[00:07:05] Speaker 02:
That's in his complaint and it's also consistent with the municipal code which talks about the board shall function as a method of community participation and recommending and reviewing policies, practices and programs designed to make law enforcement sensitive, effective in response to the needs of the city, promote and encourage open communication and cooperation between the police department and residents of the city.

[00:07:31] Speaker 04:
your honor but looking at the specific duties again on page 12 of doc entry 20.1 that outlines the specific duties in terms of what pastor Hodges was permitted to do and so in terms of the statement regarding him being a bridge between the community I believe if I recall right that was in the the original complaint we've since amended the complaint to the first amended complaint to provide

[00:07:52] Speaker 04:
greater clarification, because I would agree with your honor that that statement would probably indicate that he is interacting with the community, but he's not.

[00:08:00] Speaker 04:
His job is solely advisory, which was something that was not the case in Lathis.

[00:08:05] Speaker 04:
Lathis had wide authority to be able to interact with the community to speak on behalf of the council person that appointed her.

[00:08:12] Speaker 03:
I guess, but the point is, okay, the mayor's a political person.

[00:08:21] Speaker 03:
Well, you're not going to be successful and convince me otherwise on that.

[00:08:25] Speaker 03:
I've worked in city government before.

[00:08:27] Speaker 03:
That being said, and the mayor has veto power, why do I have to have someone on a volunteer advisory committee that's creating kerfuffles out in the community?

[00:08:45] Speaker 03:
Why do I?

[00:08:47] Speaker 03:
Pastor Hodges wants to be on the committee.

[00:08:50] Speaker 03:
And I may exactly, you know, maybe personally I align with Hodges.

[00:08:55] Speaker 03:
But if I'm the mayor and I don't align with someone's views, why do I have to have that person on my advisory committee that's causing a lot of kerfuffles out in the community and he's trying to manage the LGBTQ community and the comments while I have no doubt that they are,

[00:09:17] Speaker 03:
Mr. Hodges religiously held beliefs, that he truly believes that.

[00:09:24] Speaker 03:
But why do I have to have that person on my advisory committee when I don't agree with that philosophy as the mayor and it's not causing good communication with people?

[00:09:36] Speaker 03:
Why do I have to have him?

[00:09:38] Speaker 04:
Your Honor, if I can respond with two points.

[00:09:40] Speaker 04:
First, I think that the distinction is because Pastor Hodges holds sincerely held religious beliefs,

[00:09:46] Speaker 04:
That's why specifically even Lathis or the policymaker exception fails here or it causes problems because then what we have is a rule that allows any time a government employee or a government volunteer exposes traditional views on gender identity, they're no longer fit for service.

[00:10:02] Speaker 04:
That's quite frankly a terrible rule to have.

[00:10:05] Speaker 03:
But the case is that the standard that you want is a Pickering standard and those are people that are employed.

[00:10:11] Speaker 03:
That's different than fit for service.

[00:10:14] Speaker 03:
that in terms of volunteers, I mean, if you look at presidents all the time, they don't appoint people to advise them that don't have their values as far as, this is a volunteer position.

[00:10:30] Speaker 03:
You are asking us to say and people out there can, you know, if their religious views don't align with what and all right now, all of the issues that are hot button issues,

[00:10:44] Speaker 03:
for politicians have to do with transgender issues, which does tie to people's religious beliefs.

[00:10:51] Speaker 03:
Why does a politician have to have someone on there that is going to undermine what his views are on transgender issues?

[00:11:01] Speaker 04:
Well, Your Honor, we would have to probably go back to what the policymaker exception actually is, and that under the policymaker exception, it requires that the government official show that party affiliation is a necessary requirement for the effective performance of the public office.

[00:11:21] Speaker 04:
This police advisory board, the sole mission, again, this is found on page 10 of docket 20.1, the mission of the board,

[00:11:27] Speaker 03:
Let's switch it and say Mr. Hodges was the mayor.

[00:11:32] Speaker 03:
All right.

[00:11:32] Speaker 03:
And we know what Mr. Hodges' beliefs are.

[00:11:35] Speaker 03:
And so then one of the people that was nominated, or one was nominated from an LGBTQ organization, and the other was from the ACLU.

[00:11:48] Speaker 03:
Would Mr. Hodges have to have those people on his advisory board, or would Lathis protect him?

[00:11:54] Speaker 04:
Well, if he's publicly disclosing why he's choosing not to appoint someone and it's because of their religious beliefs, then the rule would apply.

[00:12:01] Speaker 04:
Again, the issue is whether, in other sister circuits, I recognize that we're in the Ninth Circuit, but the Ninth... I don't understand where Lathas would ever apply, according to your reading here.

[00:12:11] Speaker 03:
I'm sorry, I would not... Well, to me, Lathas has no holding, the way you're arguing this, that public officials have to appoint people that

[00:12:24] Speaker 03:
don't agree with their agendas if it's a religious or other, you know, other held beliefs.

[00:12:31] Speaker 04:
Well, Your Honor, that's why it's so important to do a careful analysis of whether someone is a policymaker, because if Pastor Hodges is a policymaker, then the mayor does have that right to remove someone.

[00:12:43] Speaker 04:
However, so I would concede, let's say that Pastor Hodges is a policymaker.

[00:12:47] Speaker 04:
The Ninth Circuit is, the panel would hold that

[00:12:49] Speaker 04:
He's a policymaker and so therefore under Lathis, therefore under the policymaker exception, the mayor was justified.

[00:12:56] Speaker 04:
That doesn't satisfy or answer the cause of action related to free exercise because you now have a government official that is burdening and punishing someone because of their religious belief.

[00:13:06] Speaker 04:
Had the mayor exercised his veto authority and we had no idea why he exercised his veto authority,

[00:13:13] Speaker 00:
we might have a different case because we wouldn't have any understanding that the mayor was vetoing pastor Hodges for anything other than he didn't like the guy or he didn't want him on the board but because... Do you think that the Lathas case already crossed that bridge across that the bridge across that river has been built in Lathas because miss Lathas' speech in Lathas was not merely political party identification she was allegedly at a

[00:13:40] Speaker 00:
a Tifa rally, I think, and exercising her right to free speech, not just to affiliate with the party, right?

[00:13:47] Speaker 04:
Yes, Your Honor.

[00:13:47] Speaker 04:
That's absolutely correct.

[00:13:49] Speaker 04:
But again, I would distinguish Lathis from this case because we're dealing with religious belief.

[00:13:54] Speaker 00:
And the lower court didn't even... Did you make that distinction in district court?

[00:13:58] Speaker 00:
Because on reconsideration, the district court was critical of Mr. Hodges for not arguing that.

[00:14:03] Speaker 04:
Well, on the motion to dismiss the mayor only challenged one prong of the free speech clause, and that was whether the speech was protected speech, but that completely ignores all of the other causes of action.

[00:14:16] Speaker 04:
Pastor Hodges is limited by what's raised in a motion to dismiss and actually articulated in its opposition that the mayor forego any arguments related to the other claims.

[00:14:27] Speaker 04:
But the focus isn't just on the free speech claim.

[00:14:30] Speaker 04:
Although we would argue that we're successful on the free speech claim, there's an entire independent analysis.

[00:14:35] Speaker 04:
And in Kennedy versus Bremerton, the United States Supreme Court actually noted that religious speech is doubly protected.

[00:14:43] Speaker 04:
We have the protections of the free speech clause

[00:14:45] Speaker 04:
and the protections of the free exercise clause.

[00:14:47] Speaker 04:
And so that's something that this court would need to take into consideration.

[00:14:51] Speaker 04:
It's different from Lathis.

[00:14:52] Speaker 04:
Lathis dealt with political speech, but here we are dealing with a religious component.

[00:14:57] Speaker 04:
And so I'd like to reserve the- All right.

[00:14:58] Speaker 03:
You don't have any time, but let me find out if my colleagues- Oh, thank you.

[00:15:01] Speaker 03:
No, thank you.

[00:15:02] Speaker 03:
They don't.

[00:15:02] Speaker 03:
I'll give you two minutes for rebuttal.

[00:15:03] Speaker 03:
Thank you, Your Honor.

[00:15:04] Speaker 03:
Thank you.

[00:15:11] Speaker 01:
Good morning, your honors, and may it please the court, Elizabeth Biggerstaff on behalf of the appellee, Mayor Todd Gloria.

[00:15:16] Speaker 01:
Under the long-standing policymaker rule, the First Amendment has never required a mayor to keep as a representative an individual whose politics do not align with his own.

[00:15:27] Speaker 01:
The mayor respectfully requests that this court

[00:15:30] Speaker 01:
Uphold the lower court's dismissal for three reasons first the district court correctly applied applied late this in finding that appellant was a policymaker who could be dismissed for lack of political compatibility second in finding appellant was a policymaker the district court correctly resolved appellants free exercise claim under that framework and Finally, even if the mayor's veto did violate the first amendment qualified immunity would apply Now moving so let me ask you this are there any limits to?

[00:16:00] Speaker 03:
what we're talking about here because obviously let's say the mayor decided hypothetically not to reappoint a member of the advisory board because the mayor disagreed with the members religious tenants.

[00:16:15] Speaker 01:
It would depend on whether there was sort of a nexus between those religious tenants and politics, Your Honor.

[00:16:20] Speaker 01:
If the appellant had stated, for example, I believe in the Holy Trinity or Friday is my Sabbath, there's really no reasonable argument that those would touch on politics.

[00:16:30] Speaker 01:
There's sort of no political discourse surrounding those religious tenants.

[00:16:34] Speaker 01:
But here, the mayor's veto did not touch on simply religious tenants.

[00:16:38] Speaker 01:
Now, while the appellant's comments were certainly the source of his deeply held religious beliefs, they were nevertheless still political commentary on a community within the city of San Diego.

[00:16:50] Speaker 03:
So, is there, but I guess is there, your friend on the other side is taking this out of lapis completely.

[00:16:59] Speaker 03:
You're putting it right in there or saying secondarily,

[00:17:03] Speaker 03:
If it's not covered, there would be no way that it was clearly established that the actions that were taken.

[00:17:11] Speaker 03:
So you're taking the qualified immunity approach to this.

[00:17:18] Speaker 03:
But it's a volunteer position.

[00:17:22] Speaker 03:
So and I think it's, even though maybe it's disputed to someone, but it appears to me that the mayor makes this appointment because,

[00:17:32] Speaker 03:
the mayor can, people recommend and it's ultimately the mayor's decision whether the person gets this.

[00:17:38] Speaker 03:
That's correct.

[00:17:39] Speaker 03:
Is there any limit to what the mayor can do in a volunteer advisory committee?

[00:17:46] Speaker 01:
Under the policymaker doctrine in this court's precedent in Bardzic, this court stated that the only question relevant to a policymaker is whether political loyalty is a requirement of the position.

[00:17:57] Speaker 01:
If yes, then that individual can be fired for purely political reasons.

[00:18:01] Speaker 01:
So, so long as the source of the misalignment here is political in nature, then there can be a firing or a separation or a veto, like in this case, based purely on politics.

[00:18:12] Speaker 01:
And that's exactly what happened here.

[00:18:14] Speaker 03:
So, but it's not whether the mayor's a Republican, I don't know if the mayor's a Democrat, I'm guessing?

[00:18:19] Speaker 01:
That's correct, Your Honor.

[00:18:20] Speaker 03:
Okay.

[00:18:21] Speaker 03:
So, the mayor could say, I only want Democrats on the committee and that would be fine?

[00:18:27] Speaker 01:
No, Your Honor, and those cases have arisen before where you have a new incoming administration and they fire everyone who's a Republican, but the courts have held that that is allowed if the individual is in a policy-making position.

[00:18:39] Speaker 01:
If they are advising and they're able to influence city and municipal policy,

[00:18:44] Speaker 01:
then they can be removed for a political mismatch.

[00:18:47] Speaker 01:
And that's because an incoming administration has a right to implement their policies.

[00:18:52] Speaker 01:
Those are electorally mandated policies.

[00:18:55] Speaker 03:
So what's the mayor's policy on transgender as it collides with Mr. Hodges on his religious views on transgender?

[00:19:04] Speaker 01:
Your honor, the mayor is the first openly gay mayor in the city of San Diego's history.

[00:19:08] Speaker 01:
So his policies of fostering inclusion for that community is no surprise.

[00:19:15] Speaker 01:
The mayor supports transgender individuals.

[00:19:18] Speaker 01:
The mayor celebrates Pride Month, attends the Pride Parade, things like that.

[00:19:21] Speaker 01:
So his politics on this are not surprising that he wants to foster an inclusive environment for community policing.

[00:19:29] Speaker 03:
Did he have Mr. Hodges before?

[00:19:31] Speaker 01:
He did, your honor.

[00:19:32] Speaker 01:
Mr. Hodges had served not just one term, but several terms prior and had been appointed by the mayor each time.

[00:19:38] Speaker 00:
What weight in your argument is placed on the voluntary nature of this as opposed to an employment relationship for compensation?

[00:19:49] Speaker 00:
No, no wait your honor the sort of pay so could the mayor adopt a policy that all employees of the city of San Diego also need to serve as a bridge to the community and foster respect and therefore anyone who has Articulated you know a view opposite to the mayor's would would be within a policymaker or partisan exception

[00:20:14] Speaker 01:
Certainly not your honor the mayor were to sort of impose that on all employees of the city whether they were a policymaker or not Then the court would have to engage in the pickering analysis Did you just add that duty to all employee all public-facing employees of the city from the DMV desk up?

[00:20:30] Speaker 00:
Have a responsibility to foster sense of inclusion in the community By doing whatever using preferred pronouns, etc and

[00:20:40] Speaker 00:
And that would be enough to bring them within the policymaker exception still know your honor because even if it's a public-facing role that doesn't mean that that individual Influences policy and sort of acts as the public face of their appointer on these sort of community-facing Policy-making roles it's so that just for the generic employee the generic contribution of any individual government worker To towards fostering a sense of inclusion alone is not enough to make them a policymaker

[00:21:09] Speaker 01:
That's correct, your honor.

[00:21:10] Speaker 01:
They'd have to be able to actually influence policy.

[00:21:13] Speaker 01:
And in this case, the statute's clear that the advisory board on community and police relations was implemented and had statutorily mandated goals to look at the program.

[00:21:25] Speaker 03:
I think your friend on the other side asserts that the advisory board is not like the advisory board in Lafayette.

[00:21:31] Speaker 03:
because the advisory board does not speak for the mayor, does not formulate plans, but merely develops ideas and makes recommendations.

[00:21:40] Speaker 03:
So can you respond to that?

[00:21:42] Speaker 01:
Yeah, and I think that in Lathus, this court did not find an actual finding that Lathus actually spoke on behalf of Councilmember Carr to the community.

[00:21:51] Speaker 01:
I think what the court held was that it can be readily and reasonably assumed that when Lathus speaks, he is speaking on behalf

[00:22:01] Speaker 01:
of her appointer, Councilmember Carr.

[00:22:04] Speaker 01:
And so there need not be an actual finding of discussion to the community or a personal relationship with the appointer.

[00:22:10] Speaker 01:
All that matters is that that individual is the face of the appointer on that public board.

[00:22:17] Speaker 01:
And if you look at the statue in Laithus and compare it to the statue in this case,

[00:22:21] Speaker 01:
Their tenants are nearly identical.

[00:22:23] Speaker 01:
The statute in Lathus sets forth that they are to provide citizen participation and coordination.

[00:22:30] Speaker 01:
Our statute here says that they are to act as a function of community participation.

[00:22:34] Speaker 01:
Both held open board meetings that are Brown Act that fall under the purview of the Brown Act.

[00:22:40] Speaker 01:
The Lathus statute says they have to provide specific recommendations on housing issues.

[00:22:47] Speaker 01:
Our case says

[00:22:47] Speaker 01:
that the statute, they are to provide specific policy recommendations on policing issues.

[00:22:52] Speaker 01:
So it can be assumed that when appellant speaks, he is speaking on behalf of the appointer who is here, the mayor.

[00:23:00] Speaker 02:
Let me ask a question about the law.

[00:23:02] Speaker 02:
It does seem like the Ninth Circuit is kind of an outlier.

[00:23:05] Speaker 02:
It seems that others, you know, other than the Third Circuit, which just does pickering, and then the slew of other circuits that do Elrod Branti within pickering,

[00:23:18] Speaker 02:
Looks like we're the only circuit that just doesn't do pickering in this context, just as Elrod Bronte.

[00:23:23] Speaker 02:
You think that's wrong?

[00:23:24] Speaker 01:
No, Your Honor, I think that makes sense because even under the First Circuit's approach, for example, in Foote versus the town of Bedford, they engaged in a pickering analysis where essentially they came to the same conclusion that Mr. Foote in that case was a policymaker, and as such, his right to free speech was outweighed by the mayor's right to have an appointee who speaks on his behalf.

[00:23:45] Speaker 02:
So does that mean this court needs to do a pickering analysis as well and say, well, it would come out

[00:23:50] Speaker 02:
under the same test as in Flint or not?

[00:23:53] Speaker 01:
No, Your Honor.

[00:23:53] Speaker 01:
I think what the Ninth Circuit's approach does is kind of bypass the unnecessary weighing because this Court has held in Bardzic that the only dispositive question is whether the individual is a policymaker where political alignment is a proper requirement for the position.

[00:24:07] Speaker 01:
If so, then they can be removed without violating the First Amendment.

[00:24:12] Speaker 01:
The Ninth Circuit's approach is much more direct and asks a bigger question, sort of working from the top down rather than working from the bottom up.

[00:24:19] Speaker 03:
Well, if we applied pickering, would that be a violation of Lathis?

[00:24:24] Speaker 01:
No, Your Honor, for a few reasons.

[00:24:26] Speaker 01:
Because first, the appellant did not raise the pickering argument whatsoever below, not in the dismissal briefing.

[00:24:33] Speaker 01:
It's not in their complaint and not in the reconsideration briefing.

[00:24:36] Speaker 01:
So we would argue that appellants barred from raising that today.

[00:24:40] Speaker 01:
But even engaging in the analysis, when you get to the second step of pickering,

[00:24:45] Speaker 01:
The appellant here was a public official making public comments, and so their speech is not protected under the First Amendment.

[00:24:52] Speaker 01:
But even if this court were to find that although appellant was a public official, perhaps his comments were not public comments, even under the balancing test, again, Foote versus Town of Bedford is a nearly identical case to this one.

[00:25:05] Speaker 03:
But I guess my question was a little bit different than that.

[00:25:07] Speaker 03:
It seems like Latham says don't do the pickering analysis.

[00:25:11] Speaker 03:
Absolutely, Your Honor.

[00:25:12] Speaker 03:
So if we did the pickering analysis,

[00:25:15] Speaker 03:
would we be in violation of LATHAS?

[00:25:19] Speaker 03:
You're saying I can win under the Pickering analysis.

[00:25:22] Speaker 01:
Correct.

[00:25:23] Speaker 03:
But we have Lapis.

[00:25:26] Speaker 01:
And this court in Bardzic and then again in Lapis and recently upheld six months ago in Neal versus City of Bainbridge, this court has said, yes, that is a dispositive inquiry.

[00:25:35] Speaker 01:
If the individual is a policymaker, they can be removed or fired or in this case vetoed for political misalignment.

[00:25:42] Speaker 01:
So there's no need to go to Pickering.

[00:25:44] Speaker 01:
That comes straight out of this court's precedent.

[00:25:47] Speaker 00:
What do you view as the main difference between Pickering and Lathis?

[00:25:51] Speaker 00:
Is it something like Lathis looks only at the government efficiency side of the equation and Pickering looks at the importance of the rights, the individual rights at issue?

[00:26:02] Speaker 01:
I think, Your Honor, both cases still sort of balance the important rights.

[00:26:07] Speaker 01:
Government employees do not leave their political speech abilities and their freedoms at the door when they come to work.

[00:26:14] Speaker 01:
But what the policymaker doctrine looks at is rather than that individual's rights, they look at an administration's ability to carry out their functions for which they were electorally

[00:26:25] Speaker 01:
It's a volunteer.

[00:26:27] Speaker 03:
Does Pickering apply to employees or does it equally apply to volunteers?

[00:26:34] Speaker 01:
It would seem that we would have to sort of stretch the definition of public employee under Pickering to encompass these types of volunteers.

[00:26:41] Speaker 01:
I'm not sure that there's any cases that have directly applied Pickering to a volunteer appointment policymaking position such as this one.

[00:26:50] Speaker 01:
But again, even if the court did engage in that analysis and wanted to reverse on its precedent and late this under the pickering analysis in this foot of town versus Bedford case, our facts are nearly identical to that case and late this case and all three cases you have a volunteer appointment.

[00:27:06] Speaker 01:
to a policymaking committee where that individual came out and their statements now created a political misalignment with their appointer.

[00:27:13] Speaker 01:
The appointer has a right to have as their representative on a policymaking board somebody who will agree with their politics and will carry out what their administration was elected to do.

[00:27:25] Speaker 00:
It sounds like, are you saying essentially that the doctrine as articulated in Lathus is the Pickering Analysis?

[00:27:33] Speaker 00:
in the context of these politically sensitive jobs?

[00:27:37] Speaker 01:
I don't think so, Your Honor.

[00:27:38] Speaker 01:
That's certainly not what I'm intending to say.

[00:27:40] Speaker 01:
It seems like the difference in the Ninth Circuit is sort of at the top of the argument.

[00:27:44] Speaker 01:
If you're looking at sort of a diagram, the first question in the Ninth Circuit is, is this individual a policymaker?

[00:27:50] Speaker 01:
If yes, you go down the Lathis branch.

[00:27:53] Speaker 01:
If no, well then let's engage with Pickering.

[00:27:55] Speaker 01:
So even before you get to Pickering, this court would find if a policymaker, that's the dispositive inquiry, let's go down Lathis.

[00:28:06] Speaker 01:
Regarding the appellants arguments on the free exercise clause the district court correctly resolved the free exercise free exercise claim under the policymaker doctrine If the court did move on to apply pickering How strong is your case about the actual impact of?

[00:28:26] Speaker 00:
Mr.. Hodges comments on the work of the advisory board it would his comments were made a year and a half before On a separate body a commission not a board

[00:28:36] Speaker 00:
And the comments were germane to what that commission was doing, so they weren't off the cuff.

[00:28:42] Speaker 00:
Do you have any counterpoints on that?

[00:28:44] Speaker 01:
Absolutely, Your Honor.

[00:28:45] Speaker 01:
In this case, the appellant was on a county commission board for human rights.

[00:28:49] Speaker 01:
However, the county does encompass the city of San Diego.

[00:28:53] Speaker 01:
So Lathus's comments about individuals within the county necessarily are about individuals within the city of San Diego.

[00:29:00] Speaker 01:
And the Human Rights Commission is very similar in its priorities and its policies and what it's trying to promote as the police advisory board in this case.

[00:29:11] Speaker 01:
Trying to build an inclusive environment of trust with the police certainly would be relevant.

[00:29:17] Speaker 01:
Appellant's comments would be relevant to that board as well.

[00:29:19] Speaker 01:
So just because they were made at a county commission doesn't negate their relevance for the city's police advisory board commission.

[00:29:27] Speaker 01:
They're still talking about a vulnerable section of the community

[00:29:30] Speaker 01:
in a policy board that's trying to foster trust with that community?

[00:29:34] Speaker 01:
How can individuals in the community come to that board and discuss these sensitive issues with the mayor and with this advisory board if they feel that the board is going to, if the board disparaged vulnerable members of the community?

[00:29:49] Speaker 01:
So I do think it's still relevant.

[00:29:54] Speaker 01:
There's no further questions.

[00:29:55] Speaker 01:
Your honors, thank you for your time today.

[00:29:58] Speaker 01:
Thank you.

[00:30:10] Speaker 02:
Your honors if I can briefly just address my friend on the other side's statements regarding a pastor Hodges religious beliefs I do believe that question your or pastor Hodges as I'm not sure if your counsel below Didn't mention Pickering in any briefs to the district court so the district court opinions don't address it I Don't think it's appropriate for the appellate court to address an issue in the first instance without allowing This with in an instance where the district court hasn't had an opportunity to address it

[00:30:40] Speaker 04:
Your Honor, this isn't an issue, a new issue that's being brought up on appeal.

[00:30:47] Speaker 02:
You agree that Pastor Hodges, none of his briefs to the district court mention Pickering.

[00:30:52] Speaker 02:
They don't.

[00:30:53] Speaker 04:
They don't, Your Honor, but again, the analysis is first whether the policymaker exception applies or whether someone is the political face

[00:31:01] Speaker 04:
of the government official.

[00:31:05] Speaker 04:
And so the appellant was addressing and responding to arguments raised by the mayor.

[00:31:11] Speaker 03:
But leaving out a pickering analysis is like leaving out a Fourth Amendment argument or something and then saying you want to bring up a search and seizure argument for the first time on appeal.

[00:31:20] Speaker 04:
Well, Your Honor, this is on a motion to dismiss.

[00:31:23] Speaker 04:
And so the appellant has brought causes of actions in a first amended complaint.

[00:31:29] Speaker 04:
And then it's the mayor's responsibility or burden to show that Pastor Hodges has not successfully brought any of those causes of actions within the complaint.

[00:31:40] Speaker 04:
And just to address the court, we're not asking the court to override any precedent.

[00:31:45] Speaker 04:
I don't think that this court has to.

[00:31:46] Speaker 04:
So in terms of whether Lathis prohibits the court from applying Pickering,

[00:31:50] Speaker 04:
Lathas doesn't address issues related to religious belief.

[00:31:53] Speaker 04:
This is a novel issue.

[00:31:55] Speaker 04:
It hasn't been addressed by any court, any circuit court even, on what to do when, if we're going to concede, which we don't, that Pastor Hodges is a policymaker, what do we do when the facts indicate that he was fired or removed because of his religious beliefs?

[00:32:10] Speaker 04:
At the end of the day, Pastor Hodges vetoed Pastor, excuse me,

[00:32:14] Speaker 04:
The mayor vetoed Pastor Hodges reappointment to the police advisory board, not because of anything he did or conduct related to him acting in accordance with the law, but solely because of his biblical beliefs.

[00:32:28] Speaker 03:
All right.

[00:32:29] Speaker 03:
Thank you.

[00:32:29] Speaker 03:
Well, unless either of my colleagues have questions, we've gone over time, but we appreciate both of your arguments in this matter, and it will stand submitted.

[00:32:39] Speaker 02:
Thank you, Your Honors.

[00:32:40] Speaker 02:
Thank you.

[00:33:03] Speaker 03:
This court for this session stands adjourned.