[00:00:00] Speaker 03:
We'll go to this matter submitted, we'll move on to the next matter for argument.

[00:00:07] Speaker 03:
Canzonary versus Prescott Unified School District.

[00:00:42] Speaker 00:
May it please the court, I'm Sherry McCracken and I represent Denise Kansaneri.

[00:00:49] Speaker 00:
My client and her husband are with us in the audience.

[00:00:52] Speaker 00:
I must start with it is a pleasure to be appearing before you today.

[00:01:01] Speaker 00:
In this particular matter, Denise Kansaneri, a 22-year librarian at the Prescott Unified School District,

[00:01:11] Speaker 00:
spoke to the school board on a matter of public concern as a private citizen, which was the last protected speech activity she took on April 2nd before she was terminated on April 3rd by the... But?

[00:01:32] Speaker 04:
It's correct, is it not, that prior to that school board meeting, she was told that her position

[00:01:41] Speaker 04:
I guess for budgetary reasons, was being eliminated.

[00:01:44] Speaker 04:
Is that correct?

[00:01:45] Speaker 00:
Yes.

[00:01:46] Speaker 00:
She was told that on March 22nd.

[00:01:49] Speaker 00:
Excuse me, on March 20th.

[00:01:50] Speaker 00:
On March 22nd, she talked to the school board member about matters of fiscal concern.

[00:01:57] Speaker 00:
But it's clear on the record, if you look at ER64 and ER90 particularly, where ER64

[00:02:11] Speaker 00:
On April 3rd, she has sent a letter from the Superintendent Howard and told that she is terminated on behalf of the school board.

[00:02:22] Speaker 00:
Then as you go forward on documents dated April 11th, the HR people tell her that she's going to be insubordinate and that she can be terminated as part of the discipline.

[00:02:38] Speaker 00:
It's pretty clear that Prescott Unified School District did not consider its notification to her that there might be a reduction in force, that she would be placed in a different position, and that the school board had to make that decision, and they wouldn't be making that decision until July.

[00:03:04] Speaker 00:
So we think that it's very clear that she was terminated

[00:03:09] Speaker 04:
So we have the initial point, the school district, someone from the administration tells her that her position is being eliminated for budgetary reasons.

[00:03:24] Speaker 00:
Yes.

[00:03:25] Speaker 04:
And that there will be a... After that, she appears in a public setting as a private citizen and raises concerns about the library and the way it's being operated, I guess, correct?

[00:03:38] Speaker 04:
Right.

[00:03:40] Speaker 04:
She goes back to work and assembles some fellow employees and talks to them.

[00:03:48] Speaker 00:
What's that all about?

[00:03:49] Speaker 00:
I'm sorry.

[00:03:50] Speaker 00:
She never goes back to work.

[00:03:52] Speaker 00:
On April 3rd, in retaliation for her speech, they put her on administrative leave.

[00:03:58] Speaker 00:
They tell her that she cannot speak.

[00:04:03] Speaker 00:
to basically anyone who is related to the Prescott Unified School District, any student, any peer, any parent, and she never returns to duty as a librarian after that.

[00:04:20] Speaker 04:
She never goes to the workplace and attempts to organize employees to help in her cause?

[00:04:27] Speaker 00:
No.

[00:04:28] Speaker 04:
That the library is not being operated properly?

[00:04:31] Speaker 00:
That never happened?

[00:04:31] Speaker 00:
No, because she is not

[00:04:33] Speaker 00:
ever back at the school district.

[00:04:36] Speaker 00:
The April 3rd letter bans her from all premises of Prescott Unified School District.

[00:04:44] Speaker 04:
Whether she was banned and whether she ever assembled these co-workers are two different questions.

[00:04:52] Speaker 04:
Are you saying that the meeting with co-workers never happened?

[00:04:59] Speaker 00:
I think she talked to co-workers prior to her speech.

[00:05:04] Speaker 00:
to the school board.

[00:05:05] Speaker 00:
I'm talking about after.

[00:05:05] Speaker 00:
She did, she did, she obeyed the draconian.

[00:05:10] Speaker 04:
Still not answering the question.

[00:05:12] Speaker 04:
There's a difference between never going back to work and getting together with fellow employees.

[00:05:19] Speaker 00:
She obeyed the school district's order and never got together with fellow employees, nor talked to anybody about the matter except in the

[00:05:30] Speaker 00:
presentation to the school board and letters to the superintendent and to HR.

[00:05:35] Speaker 00:
Okay, I got you.

[00:05:36] Speaker 00:
Okay.

[00:05:38] Speaker 00:
There are two well-established First Amendment rights that the Phoenix, excuse me, that the Prescott Unified School District violated.

[00:05:48] Speaker 00:
The first was retaliation for protected speech on a matter of public concern, which included the April 2nd

[00:05:59] Speaker 00:
presentation to the school board where she signed in as a private citizen and she was allowed to speak as a private citizen.

[00:06:08] Speaker 00:
Previous speech had been speech to a member of the school district on March 22nd saying, I'm worried about donations under the Arizona law for schools.

[00:06:22] Speaker 00:
I'm also worried about a third party vendor and if there should be an audit.

[00:06:30] Speaker 00:
She, thus the retaliation is clear simply by the letter of April 3rd and followed up by other letters.

[00:06:45] Speaker 00:
The other well-established matter is prior restraint.

[00:06:54] Speaker 00:
We submit that Prescott Unified School District's

[00:07:02] Speaker 00:
policy GBEA is prior restraint.

[00:07:08] Speaker 00:
It basically says it's the employee's code of ethics which the district says that she is bound to by her contract to follow.

[00:07:19] Speaker 00:
It says that she will not take any criticism of the school district or discuss it with anyone but the

[00:07:31] Speaker 00:
management official who is in charge of making it better.

[00:07:38] Speaker 00:
Then the other prior restraint is the letter itself on April 3rd that directs her to not have any communication, contact by telephone, in writing, or other communication

[00:08:01] Speaker 00:
with anyone who is related to the Prescott Unified School District.

[00:08:07] Speaker 00:
Who is that letter from?

[00:08:09] Speaker 00:
That letter is from the Assistant Superintendent, Defendant Marty Reed.

[00:08:14] Speaker 00:
Now is the Assistant Superintendent a policymaker?

[00:08:20] Speaker 00:
I believe so.

[00:08:21] Speaker 00:
What we think the policymaking is in this situation is the board delegated it to the superintendent and the superintendent delegated it to the principal.

[00:08:34] Speaker 05:
That's either in the record or I mean it's a fairly drawn inference that he was acting as you know the direct subordinate of the board.

[00:08:45] Speaker 00:
Yes and in fact we have a letter that comes in response to Mrs.

[00:08:50] Speaker 00:
Kansaneri saying, look, I've worked for you for 22 years.

[00:08:58] Speaker 00:
You have given me this gag order.

[00:09:01] Speaker 00:
I want to talk to people.

[00:09:03] Speaker 00:
I want to talk to my peers.

[00:09:06] Speaker 00:
Please lift the gag order.

[00:09:08] Speaker 00:
And the superintendent Howard, a defendant, writes back and says, I have delegated this to the principal and

[00:09:19] Speaker 00:
I stand behind him basically.

[00:09:25] Speaker 00:
Well established is kind of fun.

[00:09:29] Speaker 00:
Prior restraint was well established with US versus New York Times.

[00:09:35] Speaker 00:
We probably remember those as the Pentagon Papers.

[00:09:40] Speaker 00:
It shows a presumption at the Supreme Court level that prior restraint of almost any kind

[00:09:50] Speaker 00:
is not available to a government entity.

[00:09:54] Speaker 00:
You will recall that the government in that particular case brought a case to enjoin the publication of what it considered highly secret documents by the New York Times and the Washington Post.

[00:10:09] Speaker 00:
What was found is that prior restraint was not something that could be used by the government or the courts in this situation.

[00:10:20] Speaker 00:
The other thing we want to point out in this case is Pickering.

[00:10:24] Speaker 00:
Pickering is 52 years old, a Marshall decision.

[00:10:30] Speaker 00:
It may be older than that.

[00:10:32] Speaker 00:
But it has almost the same factual pattern as the pattern of Ms.

[00:10:38] Speaker 00:
Kansaneri.

[00:10:40] Speaker 00:
It says that not only are teachers

[00:10:47] Speaker 00:
entitled to free speech as citizens, but that we have a tremendous important role to guard teachers who are the people who may know the most about school districts and public, excuse me, school districts, fiscal and other problems that need to be addressed as a matter of public concern.

[00:11:16] Speaker 03:
Let me ask you this real quick, because I'm anticipating what the other side is going to argue.

[00:11:20] Speaker 03:
They're going to say, even if everything she says is true, this is a very tricky area of law under Pickering.

[00:11:26] Speaker 03:
You've got to weigh these five government interests and qualified immunity.

[00:11:31] Speaker 03:
So for qualified immunity, the way the Supreme Court has set up the test, you've got to give us something specific.

[00:11:38] Speaker 03:
So what is your best case that put the district on notice that if they went down this path, there will be a problem?

[00:11:46] Speaker 00:
I think I like Gieson, which is the one with the chief of police where the chief of police decided that the county manager was suspect about paying invoices, not paying invoices, et cetera.

[00:12:04] Speaker 00:
And he went into the financial and talked about the, with the comptroller and the court, the ninth circuit found

[00:12:15] Speaker 00:
that those were not with us in his job duties, and that he was speaking as a private citizen, and actually he was reinstated.

[00:12:28] Speaker 03:
And that's Greece in, you said?

[00:12:29] Speaker 03:
Yeah.

[00:12:30] Speaker 03:
Okay.

[00:12:30] Speaker 00:
Thank you.

[00:12:30] Speaker 00:
It's in my list.

[00:12:32] Speaker 03:
I see it.

[00:12:34] Speaker 00:
Qualified immunity, I might as well say, is a controversial topic.

[00:12:41] Speaker 03:
That's fair.

[00:12:45] Speaker 00:
then you probably don't want me to go further with that.

[00:12:50] Speaker 03:
You want to reserve your time?

[00:12:51] Speaker 03:
Yes, please.

[00:12:52] Speaker 03:
You got it.

[00:13:04] Speaker 02:
Good day, your honors.

[00:13:05] Speaker 02:
May it please the court?

[00:13:06] Speaker 02:
My name is Don Johnson, and I represent the appellees in this case.

[00:13:14] Speaker 02:
I think it's important to make the point right off the bat that we are talking about two different types of defendants in the case.

[00:13:23] Speaker 02:
The first defendant, of course, is the school district, the juror entity that was sued, and very different considerations apply to the statement of a claim against the district.

[00:13:36] Speaker 02:
We'll talk about the individual defendants shortly, but

[00:13:39] Speaker 02:
Again, with respect to the district, the case law is very clear that Ms.

[00:13:44] Speaker 02:
Canzenaria only states a claim against the district if she can show the existence of an unconstitutional policy from the inception, or that the action of which she complains was taken by an official policymaker or official decision maker.

[00:14:04] Speaker 02:
Neither of those are present in this case, as Judge Bernovich recognized.

[00:14:08] Speaker 02:
First of all, policy GBEA, the staff ethics policy, speaks to what the school district expects of its employees in their school relationships.

[00:14:18] Speaker 02:
That's in the very first portion of policy GBEA.

[00:14:22] Speaker 02:
The districts is explaining what school employees, how they're expected to interact with each other.

[00:14:28] Speaker 02:
There's nothing unconstitutional in the face of that.

[00:14:32] Speaker 02:
And so GBEA is not an unconstitutional policy and can't be used as the basis

[00:14:37] Speaker 02:
for an assertion of liability against the district.

[00:14:40] Speaker 05:
With respect to... Just a minute.

[00:14:42] Speaker 05:
Yes, sir.

[00:14:44] Speaker 05:
Are you saying that it's pretty clear that that policy doesn't purport to affect relations, an employee of the district, officer of the district's relation with any outside person or entity, doesn't put any

[00:15:06] Speaker 05:
kind of impingement upon it?

[00:15:08] Speaker 05:
Is that what you're saying?

[00:15:10] Speaker 05:
Is that the way the board has read it?

[00:15:12] Speaker 05:
Is it in the record that way?

[00:15:14] Speaker 02:
There's nothing in the record to say that that's how the board interprets it, your honor.

[00:15:18] Speaker 02:
We're saying that from the face of the policy, it starts out talking about how employees are expected to manage their school relationships.

[00:15:26] Speaker 02:
And then there's a laundry list of expectations about how to get along with each other.

[00:15:32] Speaker 02:
So when an employer

[00:15:36] Speaker 02:
is giving its employees direction about how to interact with each other, we suggest that you can't say that's unconstitutional on its face, especially when one juxtaposes that with the case that we're going to talk about shortly, the Garcetti case, recognizing that employers do have the right to manage employees' First Amendment expectations in the employment context.

[00:15:59] Speaker 02:
But as I was saying on the official policymaker question, as Your Honor touched on this,

[00:16:05] Speaker 02:
Ms.

[00:16:05] Speaker 02:
Reed is not an official policymaker, nor was Superintendent Howard, nor was Principal Goligoski.

[00:16:13] Speaker 02:
And the reason we know that is because the case law instructs that the identity of an official policymaker is governed by state law, and Arizona law is very clear that the governing board has the authority to make policy.

[00:16:30] Speaker 02:
The cases in Arizona interpreting those statutes

[00:16:35] Speaker 02:
are to that same effect.

[00:16:38] Speaker 02:
They recognize that in a Section 1983 claim against the school district, well, there's, it doesn't exist because the school, that is, unless the school board itself took the action, because the cases recognize that the school board is the policymaker under Arizona law.

[00:16:56] Speaker 02:
So, because there's no facially unconstitutional written policy,

[00:17:02] Speaker 02:
And because the individuals who took the actions of which Ms.

[00:17:06] Speaker 02:
Kansanari complains are not official policy makers as a matter of law, there's no Section 1983 claim against the district, period.

[00:17:16] Speaker 03:
So let's turn then to the- Actually, one quick question on that, because this is the part of the case that I think troubles me the most.

[00:17:25] Speaker 03:
I don't mean to either side, just me understanding it.

[00:17:28] Speaker 03:
So the complaint here alleges

[00:17:31] Speaker 03:
that the school district had a policy to deprive the plaintiff explicitly of free speech.

[00:17:37] Speaker 03:
So she alleges that.

[00:17:39] Speaker 03:
At this stage, this is 12b6, why isn't that good enough to get to summary judgment?

[00:17:46] Speaker 02:
Here's why, Your Honor, because as we know, in assessing a motion, a 12b6 motion, the court looks not at just the black and white allegations in the complaint,

[00:17:58] Speaker 02:
The court also considers the attachments, the exhibits, the documentation that the plaintiff might include with her pleadings and upon which her asserted claim rests.

[00:18:10] Speaker 02:
And so in this case, she referenced and attached a copy of policy GBEA, the staff ethics policy.

[00:18:18] Speaker 02:
So in assessing our motion to dismiss, Judge Bernovich quite properly looked not at just the conclusory allegation that

[00:18:27] Speaker 02:
They're using an unconstitutional policy.

[00:18:30] Speaker 02:
She looked at the policy.

[00:18:31] Speaker 02:
She read it.

[00:18:32] Speaker 02:
And she recognizes, as I think anyone really looking at it seriously must, that policy on its face, which pretty much every district in Arizona uses, is not an unconstitutional policy on its face.

[00:18:47] Speaker 02:
So even though, yes, she alleges there was an unconstitutional policy, the policy she attached and upon which she relies is fair game.

[00:18:56] Speaker 02:
And Judge Bernovich recognized it's not unconstitutional on its face.

[00:19:00] Speaker 02:
So in effect, what's the old expression?

[00:19:02] Speaker 02:
She pled herself out of court on that claim by referencing that specific policy and the content of that policy is known to us.

[00:19:10] Speaker 04:
Can we go back to a question I asked your friend on the other side?

[00:19:14] Speaker 04:
At some point, Ms.

[00:19:18] Speaker 04:
Kanzaneri was told to attend a mandatory HR meeting of some kind.

[00:19:26] Speaker 04:
with Krista Simmons in the HR office?

[00:19:29] Speaker 01:
Yes, sir.

[00:19:30] Speaker 04:
Is that correct?

[00:19:31] Speaker 04:
Yes, sir.

[00:19:32] Speaker 04:
And she didn't show up for the meeting.

[00:19:35] Speaker 04:
And then Simmons followed that with an email, am I correct?

[00:19:41] Speaker 04:
I think that's right, Your Honor.

[00:19:43] Speaker 04:
After that, asking her to come back or whatever.

[00:19:46] Speaker 04:
But the letter at the, she then sends Kansaneri an actual letter

[00:19:55] Speaker 04:
detailing the results of the formal investigation?

[00:19:59] Speaker 04:
Am I still correct?

[00:20:01] Speaker 01:
Yes, sir.

[00:20:03] Speaker 04:
Okay.

[00:20:03] Speaker 04:
In the letter, it says that she's violated sections E, I, and K of the GBA policy by speaking with coworkers about forming a committee to address the library's future while at work.

[00:20:20] Speaker 02:
Yes, sir.

[00:20:20] Speaker 04:
Am I correct in that regard?

[00:20:22] Speaker 02:
That's what Ms.

[00:20:24] Speaker 02:
Simmons recited yesterday.

[00:20:25] Speaker 04:
The allegation about the meeting with coworkers, did that occur before or after the appearance at the school board?

[00:20:33] Speaker 02:
My understanding, Your Honor, it was before.

[00:20:34] Speaker 02:
It was during the 10 days or so between the time she was told that her position was being eliminated and the time she made her presentation to the board.

[00:20:42] Speaker 04:
OK.

[00:20:43] Speaker 04:
That brings this question to mind.

[00:20:46] Speaker 04:
This is, as my colleague pointed out, rule 12 dismissal.

[00:20:51] Speaker 04:
Why not let a jury determine whether the school district was terminating Miss Kansaneri for what she did at the school board meeting as opposed to forming this committee of coworkers to address library concerns?

[00:21:10] Speaker 04:
Something that on its face, if that's standing alone, could have been reasons for adhering to their position that her position had been terminated.

[00:21:21] Speaker 02:
The answer to the question, Your Honor, requires that we go back and remember, again, we're talking about claims against two distinct types of defendants.

[00:21:29] Speaker 02:
Understand.

[00:21:30] Speaker 02:
The claim against the school district fails because it just wasn't correctly pled.

[00:21:35] Speaker 02:
No unconstitutional policy.

[00:21:37] Speaker 02:
And the individuals such as Ms.

[00:21:40] Speaker 02:
Simmons, Ms.

[00:21:41] Speaker 02:
Reed, et cetera, they're not official policymakers.

[00:21:43] Speaker 04:
Suppose we were to conclude that the complaint states someone else's claim.

[00:21:49] Speaker 02:
States a claim against the school district?

[00:21:51] Speaker 04:
Yeah.

[00:21:52] Speaker 02:
Well, in that case, I'm sorry, Your Honor.

[00:21:54] Speaker 02:
Under Monel.

[00:21:56] Speaker 02:
Yes, sir.

[00:21:58] Speaker 02:
In that case, if it does state a valid claim against the school district on either of those two bases, then we look at the Garcetti case, which demonstrates that even if she states a valid claim against the district, her speech to the school board, her conduct in basically going to her boss and saying, I think you ought to run my department a different way.

[00:22:19] Speaker 02:
She's not speaking, that's not a speech that's subject to First Amendment protection under the Garcetti case, Your Honor.

[00:22:27] Speaker 02:
And in fact, the work that she did in preparation to the speech, as we pointed out in our brief, really demonstrates that.

[00:22:36] Speaker 02:
When she was told that her position was going to be eliminated because there's no dollars left for libraries, or at least not enough,

[00:22:43] Speaker 02:
She took that 10 days to meet with people, meet with a member of the school board, meet with administration, gather evidence to try to basically change the school board's mind about how they wanted to manage her department.

[00:22:59] Speaker 02:
She, I think in one of her papers that's attached to the complaint, she says she was trying to head off that vote.

[00:23:06] Speaker 02:
Now, as Judge Bernovich noted in dismissing the first complaint,

[00:23:12] Speaker 02:
All of that work really is a public employee talking about her job, talking about how her job ought to operate, telling her boss, you're making a wrong decision about my job, about my department.

[00:23:26] Speaker 02:
You really ought to run it this way.

[00:23:29] Speaker 02:
And that's a fair discussion for any employee to have.

[00:23:31] Speaker 02:
I respect that.

[00:23:32] Speaker 02:
But that's not subject to First Amendment protection.

[00:23:35] Speaker 02:
When the boss responds negatively to that kind of a critique or discussion,

[00:23:40] Speaker 02:
That's not a First Amendment issue.

[00:23:42] Speaker 02:
That's a public employer exercising its prerogative as such and taking employment action that it feels is justified.

[00:23:51] Speaker 02:
So even if one concludes that, well, there is, we do get over Monell as a threshold matter, a fortiori, Your Honor, there's no claim because of Garcetti against either the school district.

[00:24:07] Speaker 02:
And then if we could segue, Your Honor, to the individual defendants.

[00:24:11] Speaker 02:
There's certainly no claim against the individual defendants.

[00:24:13] Speaker 02:
They are immune.

[00:24:15] Speaker 02:
They are immune under, given the Garcetti case law.

[00:24:21] Speaker 02:
I knew we were going to hear about pickering from my colleague.

[00:24:25] Speaker 02:
I want a small bet with myself that we weren't going to hear about Garcetti from my colleague.

[00:24:31] Speaker 02:
Because that case, obviously the more recent case and has been the subject of much more discourse, is controlling in this circumstance.

[00:24:40] Speaker 02:
When the individual, when the plaintiff's speech arises from and finds its origin in his or her job duties, that kind of speech is simply not protected under Garcetti and under this court's precedence interpreting Garcetti in the 12 or 14 years since.

[00:24:58] Speaker 04:
Do you agree that if the only reason on behalf of the school board for

[00:25:07] Speaker 04:
either A, sticking to their prior position that her position had been terminated for budgetary reasons, and if they had simply said your meeting with organizing coworkers violates the policy, if that was the only thing before the court, that that's summary judgment stuff.

[00:25:33] Speaker 02:
If the plaintiff's deposition testimony were to that effect, or if the plaintiff made some other admissions to that effect, then I think that would be summary judgment material.

[00:25:43] Speaker 02:
Yes.

[00:25:44] Speaker 02:
Yes, Your Honor.

[00:25:46] Speaker 02:
But again, getting back to the qualified immunity issue for the individuals, as Your Honor pointed out, the plaintiff in this case really has a burden to show the court, either to show the district court, which she couldn't do,

[00:26:02] Speaker 02:
or your honors, which she can't.

[00:26:04] Speaker 04:
We could conclude that the district court was correct on qualified immunity.

[00:26:11] Speaker 01:
Yes, sir.

[00:26:12] Speaker 04:
But say that, determine that her complaint states someone else's claim and send it back.

[00:26:18] Speaker 04:
And then the district court could resolve through discovery or otherwise, summary judgment or not, or jury trial or not, correct?

[00:26:28] Speaker 02:
If your honor reaches those conclusions, certainly, yes.

[00:26:31] Speaker 02:
We're here in a little different posture, 12b6, but as we're all aware, of course, even a Section 1983 claim is susceptible to dismissal under 12b6.

[00:26:47] Speaker 02:
The Sabra case, which we've cited to great length in our briefing, is exactly such a case.

[00:26:54] Speaker 02:
It's the province, it's the obligation of the trial court to assess the pleadings

[00:27:00] Speaker 02:
and to gauge whether, based upon the allegations and the complaint and its attachments, and based upon the governing case law, does it state a viable claim?

[00:27:11] Speaker 02:
And obviously we think Judge Bernovich got it right in concluding there's no claim against the district as an entity, and the individuals are immune because it's not clearly established that the employer does not have the right to manage its employees

[00:27:30] Speaker 02:
internal discussion, as we've summarized in our brief, when an employee takes the time to research and then a presentation to her boss about how her department ought to work, no one can say that it's clearly established that the employer doesn't have the right to respond to that.

[00:27:49] Speaker 03:
Thank you, Your Honors.

[00:28:00] Speaker 00:
Obviously, I disagree.

[00:28:02] Speaker 00:
We think our city supports our case.

[00:28:06] Speaker 00:
Ms.

[00:28:07] Speaker 00:
Cancenari was not speaking as part of her job.

[00:28:11] Speaker 00:
It's very clear that it wasn't part of her job.

[00:28:14] Speaker 00:
All of the correspondence from the school district told her not only that it was not part of her job, but that she was not allowed to do any of these things.

[00:28:25] Speaker 00:
Also,

[00:28:28] Speaker 00:
I refer you to Lindy, which is a Supreme Court case that basically talked about when something was speech authorized by the employer.

[00:28:43] Speaker 00:
The Supreme Court said in that case, which was the opposite of this case, that when a public official was accused of speaking in his

[00:28:56] Speaker 00:
public position that there had to be proof that there was authorization for the public official to not only speak on that subject with authorization, but to speak in that arena or that manner.

[00:29:14] Speaker 00:
That particular case involved a city manager who had some kind of social media site where he blocked someone from.

[00:29:26] Speaker 00:
Also, one of the questions is there is no obligation for the plaintiff to plead the lack of an affirmative defense.

[00:29:41] Speaker 00:
And under 12b-6, this is supposed to be on the basis of the complaint and all of the things that were in the complaint.

[00:29:55] Speaker 00:
to find that there's qualified immunity on the face of the complaint.

[00:30:03] Speaker 00:
It's not there.

[00:30:04] Speaker 00:
It wasn't pled.

[00:30:07] Speaker 00:
Also, we disagree about the well established.

[00:30:12] Speaker 00:
The well established really does go to prior restraints and, excuse me, prior restraints.

[00:30:24] Speaker 00:
Also, I would refer you to ERO 64 that talks about these things.

[00:30:32] Speaker 00:
And I would refer you to ERO 77.

[00:30:37] Speaker 00:
This was connected to my client because they said she violated it and she by her contract was obligated to it.

[00:30:48] Speaker 00:
It says,

[00:30:50] Speaker 00:
directs any criticism of other staff members or any department of the school system toward improving the district.

[00:30:58] Speaker 00:
Such constructive criticism is made directly to the school administrator.

[00:31:06] Speaker 00:
That is prior restraint.

[00:31:09] Speaker 00:
Then it says at the very bottom without a number,

[00:31:14] Speaker 00:
In the performance of duties, employees shall keep in confidence such information as they may secure unless disclosure serves the district purpose required by law.

[00:31:28] Speaker 00:
It is plausible under Twombly and Iqbal that the Prescott Unified School District did everything in its power to keep Ms.

[00:31:40] Speaker 00:
Kansaneri and any other employee

[00:31:43] Speaker 00:
from actively criticizing it in the public forum.

[00:31:48] Speaker 03:
Thank you, counsel.

[00:31:48] Speaker 03:
Appreciate it.

[00:31:49] Speaker 03:
Thank you.

[00:31:49] Speaker 00:
I have a quick question, counsel.

[00:31:51] Speaker 04:
Oh.

[00:31:52] Speaker 03:
Apologize.

[00:31:53] Speaker 03:
Misinterpreted the sign.

[00:31:54] Speaker 04:
I practice law in this community for a long time.

[00:31:58] Speaker 04:
I know that.

[00:31:59] Speaker 04:
There was a lawyer in this community named Robert McCracken.

[00:32:03] Speaker 04:
Any relation?

[00:32:05] Speaker 00:
If I can take time, your honor.

[00:32:06] Speaker 00:
Sure.

[00:32:07] Speaker 00:
It truly is very funny, because McCracken is not a common name.

[00:32:14] Speaker 00:
Robert McCracken was married to a judge here.

[00:32:18] Speaker 00:
And when I was young, I had a opposing counsel, Rich Goldsmith, who could not get through his mind that I was not married to Robert.

[00:32:34] Speaker 00:
And Jose Rivera, who you know, walked in to the Superior Court judge and said,

[00:32:42] Speaker 00:
I have been dying to talk to you.

[00:32:45] Speaker 00:
Goldsmith can't get through his mind that you are not married to Robert, that Sherry is not married to Robert McCracken.

[00:32:54] Speaker 04:
So there's no found moral relation?

[00:32:56] Speaker 00:
No, no.

[00:32:57] Speaker 00:
But I suddenly get his malpractice insurance.

[00:33:03] Speaker 04:
Thank you, Your Honor.

[00:33:04] Speaker 04:
Thank you.

[00:33:04] Speaker 04:
Sorry for the diversion.

[00:33:06] Speaker 03:
Thank you both for your briefing and argument.

[00:33:07] Speaker 04:
He was a lovely man.