[00:00:01] Speaker 04:
Good morning.

[00:00:02] Speaker 01:
Good morning, Your Honors.

[00:00:03] Speaker 01:
So I would like to please reserve at least three minutes for rebuttal argument.

[00:00:16] Speaker 01:
And actually, I'd like to allow most of my time to be used for any questions.

[00:00:22] Speaker 01:
that the court may have, preliminarily, I was able to file a reply that I think best sums up the primary issues as to the First Amendment claim, as I understood, was the court's interest in having heard the oral argument, specifically.

[00:00:41] Speaker 04:
Yes, fundamentally, my understanding, and different counties do this differently, that in this particular county, that the employees are at will in the DA's office.

[00:00:58] Speaker 04:
I don't know if the public defender's office is the same.

[00:01:01] Speaker 04:
And so when things, the DA's an elected official, and when it changes,

[00:01:07] Speaker 04:
they can bring in their own people and they can get rid of everyone if they want, correct?

[00:01:12] Speaker 04:
Absolutely.

[00:01:12] Speaker 01:
It's just like regular private at-will employment.

[00:01:15] Speaker 04:
Okay.

[00:01:16] Speaker 04:
Because I worked for a public defender's office when I was in law school for a year and a half, and then I worked for a DA's office for 10 and a half years, and we had more protection than that.

[00:01:26] Speaker 04:
And I lived through where people had elections or things like that, and so it wasn't

[00:01:33] Speaker 04:
It wasn't like a governor or a president where everyone comes and goes.

[00:01:37] Speaker 04:
So that being said, obviously, Mr. Badeen, is that how you pronounce it?

[00:01:43] Speaker 04:
Yes.

[00:01:44] Speaker 04:
When he was elected, he had a different philosophy than the prior person that was in the office.

[00:01:51] Speaker 04:
And I mean, some people would have termed him, he's no longer there, is my understanding, but that perhaps is what would be a more progressive DA.

[00:02:02] Speaker 04:
So he would be able to have the people in his office that would be consistent with his values or how he sees prosecution.

[00:02:12] Speaker 04:
And Mr. Osley and he had had trials together, not always happily, and it would be safe to say that Mr. Osley would not be a person that he probably would have kept anyway.

[00:02:27] Speaker 04:
Okay, that is not necessarily, he seemed to be, Mr. Osley seemed would be a more traditional prosecutor and Mr. Bodine seemed to be a more progressive prosecutor.

[00:02:38] Speaker 04:
So let's assume that he could have gotten rid of him.

[00:02:42] Speaker 04:
So from a First Amendment perspective, if he got rid of him because he was retaliating against him for exercising his First Amendment right, what exactly from your perspective is the evidence here?

[00:02:57] Speaker 04:
And if, let's say he could get rid of him anyway, how does his retaliation factor into that?

[00:03:07] Speaker 01:
Absolutely, Your Honor.

[00:03:07] Speaker 01:
So yes, there's this idea of at-will employment so that Mr. Rossley could have been terminated for any reason or even no reason at all, but not an illegal reason.

[00:03:23] Speaker 01:
a right that is subject to a number of exceptions, public policy exceptions, statutory exceptions, like the First Amendment.

[00:03:31] Speaker 01:
So if his motivation was not just because he had a different philosophy, but was for something more specific, was essentially a form of retaliation for Mr. Osley's... Okay, a bunch of people got... He got... Mr. Budding got rid of a bunch of people in the first few days, right?

[00:03:51] Speaker 04:
How many people?

[00:03:53] Speaker 04:
Do you know?

[00:03:53] Speaker 01:
Well, and that, so there was only a few, the first few days, and then there was a delay, and then there was other layoffs after the fact.

[00:04:02] Speaker 01:
But here's the- Layoffs or firings?

[00:04:06] Speaker 01:
I mean- Sure, firings.

[00:04:07] Speaker 01:
You're right.

[00:04:08] Speaker 01:
Yes, yes.

[00:04:09] Speaker 04:
That's more- So if, let's just say that part of his motive was because he didn't like

[00:04:16] Speaker 04:
that Mr. Ossley, I guess, complained about the Defender's Office not conveying plea bargains to the clients.

[00:04:27] Speaker 04:
And also I think that the public defender's office was filing complaints against DAs and I guess essentially intimidating them from exercising their independent duty to how to handle their cases because if they handled them contrary to how

[00:04:47] Speaker 04:
the public defenders liked it, then they get a complaint with the state bar, right?

[00:04:51] Speaker 04:
Are those the areas that he's talking about?

[00:04:54] Speaker 01:
Yes.

[00:04:55] Speaker 01:
Yes.

[00:04:55] Speaker 01:
I mean, there's two primary issues in terms of the First Amendment speech.

[00:04:59] Speaker 01:
There was the reporting to the press

[00:05:02] Speaker 01:
of the fact that public defenders were not communicating settlement offers to their clients.

[00:05:09] Speaker 01:
So that was the first one.

[00:05:11] Speaker 01:
The second one was complaining of the fact that, yes, public defenders were using the bar complaint system as a means of intimidating and harassing prosecutors to prevent them from doing their job.

[00:05:30] Speaker 01:
And that's something even that in, I'm sorry.

[00:05:33] Speaker 01:
I think Judge Greber wants to ask a question.

[00:05:35] Speaker 02:
No, no.

[00:05:36] Speaker 02:
I want to be sure you finished your answer to Judge Callahan before I ask a question.

[00:05:43] Speaker 01:
So there was, even going back to 2018, there was a change in policy in District Attorney Gascon's office about what to do with these types of complaints.

[00:05:56] Speaker 01:
all having to do with a similar type of conduct at the time, which he put out a memo, it's one of the exhibits, one of the attachments, wherein it cites the Business and Professions Code and defines that when public defenders are engaging in that type of conduct, it's actually a violation of law in and of itself.

[00:06:20] Speaker 01:
And so that was one of the things that Mr. Ossley was complaining.

[00:06:23] Speaker 01:
I'm referencing that fact to show that it was

[00:06:27] Speaker 01:
even in the paper, you know, in writing that this was a whistleblower type claim.

[00:06:33] Speaker 04:
This was a complaint about violation of law that affected the public at large, meaning obviously- Well, because obviously a complaint just against Mr. Osley, if you assume that's the only complaint, that makes it harder to be a First Amendment argument because then he's sort of litigating a personal matter as opposed to something that's of public concern.

[00:06:57] Speaker 04:
And that is- Because Mr. Osley did get a complaint against him, too, right?

[00:07:02] Speaker 01:
Yes.

[00:07:03] Speaker 01:
And so did some of his colleagues, which he knows by way of having spoken with them, to which he put in both his declaration and in his verified complaint.

[00:07:14] Speaker 02:
Now- Counsel, I would like, if I may, to ask a question on a slightly different topic.

[00:07:20] Speaker 02:
And that is the-

[00:07:25] Speaker 02:
Mr. Boudin in his declaration number one says that essentially that he didn't know of these complaints or whistleblowing activities or protected or potentially protective speech and the

[00:07:45] Speaker 02:
District Court went through a long explanation of why there was not a reasonable inference that he was aware of these things.

[00:07:55] Speaker 02:
So, what is your response to that?

[00:07:58] Speaker 02:
Why isn't that under our case law that there has to be something more than speculation to counter a sworn declaration that the person didn't know?

[00:08:10] Speaker 01:
So I asked myself that same question, Your Honor, and that's why most of the papers are devoted to reviewing the transcript from the oral hearing, because

[00:08:20] Speaker 01:
If you review that as compared to the court's ultimate written order, it looks like two different courts looked at the case.

[00:08:26] Speaker 01:
One court heard oral argument.

[00:08:28] Speaker 02:
One court wrote the decision because- Well, counsel, oftentimes we put up straw persons in oral conversation as to- I'm not sure why that matters because I'm asking sort of a factual question.

[00:08:44] Speaker 02:
What support is there in the record?

[00:08:47] Speaker 02:
Right.

[00:08:48] Speaker 02:
That reasonably shows that Mr. Boudin was aware of these alleged complaints.

[00:08:54] Speaker 01:
So first of all, if you look at Mr. Oxley's, beyond just the verified complaint and declaration, his specific allegations, if you look at the attachments, the exhibits to Mr. Oxley's declaration, they tell the story chronologically if you just look at them one by one.

[00:09:10] Speaker 01:
So he tells a reporter in 2017 that public defenders aren't communicating settlement offers.

[00:09:18] Speaker 01:
That doesn't come out.

[00:09:20] Speaker 01:
That article doesn't come out until a few days after Jeff Adachi's passing.

[00:09:25] Speaker 01:
It comes out in March of 2019.

[00:09:28] Speaker 01:
Very shortly after, Mr. Callaway, who's in the public defender's office, puts out an article in a non-profit paper explaining why the public defender uses the bar complaint process to go after prosecutors, almost as a preemptive move to get around the issues that Mr. Osley has been complaining about.

[00:09:57] Speaker 01:
Within days, another public defender, Iona Solomon, goes to court and accuses Mr. Osley of prosecutorial misconduct, which is denied outright by the judge.

[00:10:09] Speaker 01:
Within weeks thereafter, there's an email from her internally in the public defender's office referring to a case that Mr. Osley was involved in from 2013, a personal matter completely unrelated

[00:10:21] Speaker 01:
which she misrepresents, which she uses and calls him a monster.

[00:10:25] Speaker 01:
It has nothing to do with any pending case or any legitimate reason.

[00:10:31] Speaker 01:
It's basically dirt.

[00:10:32] Speaker 03:
But in that email, there's no evidence of retaliatory animus for Mr. Osley's speech, right?

[00:10:39] Speaker 03:
It has to do with a sexual harassment, wrongful termination, libel lawsuit involving his former law firm.

[00:10:44] Speaker 01:
This is my point.

[00:10:46] Speaker 01:
Right.

[00:10:46] Speaker 01:
It has nothing to do with anything legitimate at the job.

[00:10:49] Speaker 01:
They're looking for dirt on it.

[00:10:51] Speaker 03:
I know, but making that extra step that this email was sent as retaliatory animus for Mr. Ossley's reporting the lack of plea offers being conveyed to clients, that's speculation, right?

[00:11:04] Speaker 01:
Well, first of all, when you're talking about retaliation, you're never going to have someone come out and admit, yeah, I did that for retaliating.

[00:11:12] Speaker 01:
It's all circumstantial evidence.

[00:11:14] Speaker 01:
And this is just one part in the history of the document.

[00:11:17] Speaker 01:
So I wasn't going to end there.

[00:11:20] Speaker 01:
So that email goes to...

[00:11:24] Speaker 01:
Daniel Harris.

[00:11:40] Speaker 01:
The public defenders don't want him on the cases.

[00:11:44] Speaker 01:
Sharon Wu refuses.

[00:11:46] Speaker 02:
But counsel, if he's removed because public defenders don't like him, that's not a First Amendment issue, is it?

[00:11:53] Speaker 02:
It is if the public def- Whether they like him or they don't like him is a separate question.

[00:12:01] Speaker 02:
They could not like him because he beats them at scramble.

[00:12:06] Speaker 02:
I mean, the fact that they don't like him seems to me

[00:12:10] Speaker 02:
separate from the allegedly protected speech.

[00:12:18] Speaker 01:
I agree, Your Honor, but if they don't like him because of his

[00:12:21] Speaker 01:
whistle-blowing because of his complaining about what they're doing, both internally and to the public.

[00:12:28] Speaker 02:
But you still have to show us that there's evidence that Mr. Boudin knew that.

[00:12:33] Speaker 02:
Right.

[00:12:33] Speaker 02:
And that's what I, just speaking for myself, I don't find a non-speculative nexus there.

[00:12:44] Speaker 04:
Here's your best argument.

[00:12:47] Speaker 04:
And this is to me, okay, that's what I'm going to say.

[00:12:51] Speaker 04:
And some of it, what Judge Chen called speculative can be argued would be circumstantial evidence of retaliatory intent.

[00:13:03] Speaker 04:
And you're right, no one ever comes out and says, I'm retaliating.

[00:13:09] Speaker 04:
Or it's sort of like in a case, if a defendant, there's a specific intent required.

[00:13:14] Speaker 04:
The defendant doesn't have to say, oh, I'm specifically intending to do this to prove that the defendant did so.

[00:13:22] Speaker 04:
The things that you're mentioning are not necessarily tying to the speech, but in my mind, what they tie to is the public defender's office and the DA's office, and having worked in both,

[00:13:41] Speaker 04:
They all know what's going on with everyone else, and I believe that where it becomes less speculative is it somewhat impeaches Mr. Bodine's statement that he had no idea that this was going on, because

[00:14:00] Speaker 04:
And this I could be relying on some of my own experience, but if the offices are taking particular positions against, say, a judge where they're filing 170.6s against a judge, they all talk about it and then everyone does a blanket 170.6.

[00:14:17] Speaker 04:
if let's say the process is we're gonna complain to the state bar about all of the DAs.

[00:14:24] Speaker 04:
It's hard for me to believe at one moment that that's not something that's being discussed strategically in the offices.

[00:14:30] Speaker 04:
Those offices are in court with each other every day, all the time, and the way they wage war against each other can be strategic.

[00:14:40] Speaker 04:
So I think your best argument, to me anyway,

[00:14:44] Speaker 04:
is that how they operate and how not so much that that's evidence that the retaliation, that it ties it to the First Amendment, it's that Mr. Bodine impeaches that whether he knew about

[00:14:59] Speaker 04:
the reports to the press, the reports to the State Bar.

[00:15:03] Speaker 01:
I 100 percent agree, not just because he was on some of those emails that were being circulated internally, but of everybody that the public defender is going to to try and get Mr. Ostley removed, it's kind of, it would be strange to think they wouldn't go to the one person that could actually help them to do that once he becomes DA.

[00:15:20] Speaker 01:
His declaration, and I want to address your Honor's question.

[00:15:22] Speaker 04:
Was he running at the time that all of these things were going on?

[00:15:25] Speaker 01:
I believe so.

[00:15:26] Speaker 01:
That wasn't, but I don't... That's not in the record?

[00:15:29] Speaker 01:
No, that's not a part of... That's not the connection.

[00:15:33] Speaker 01:
Here's the connection.

[00:15:34] Speaker 01:
The declaration itself is what I think undercuts his argument.

[00:15:37] Speaker 01:
Notice he doesn't say, no public defender ever asked me to do this, right?

[00:15:42] Speaker 01:
His declaration says,

[00:15:44] Speaker 01:
Despite being at will which he could have just said and probably should have at his own best interest He says I let mr. Ross Lee go because of my experience with him as what public defender Because of co-worker complaints.

[00:15:59] Speaker 01:
He's been da only of less than a week.

[00:16:01] Speaker 01:
What co-worker complaints public defenders and complaints by citizens

[00:16:08] Speaker 01:
right, which again, to answer your honor's question, what would have been on the campaign trail?

[00:16:12] Speaker 01:
What does any of that have to do with whether or not he's suited to perform the job?

[00:16:17] Speaker 01:
His declaration essentially creates

[00:16:24] Speaker 01:
the pretext, some of the circumstantial evidence to which your honor referred earlier, because it makes no sense.

[00:16:31] Speaker 01:
It's, first of all, three or four sentences of hearsay, doesn't provide a single name or record of an employee complaint, of a citizen complaint.

[00:16:42] Speaker 02:
Council, council, he does start by, his first reason is that he was released from an at-will position

[00:16:51] Speaker 02:
And then he says he also had other motivations, but the primary thing he says is this was at will, which is true.

[00:17:00] Speaker 02:
And I'm not really sure how having other motives really changes that.

[00:17:09] Speaker 02:
It's sort of like the

[00:17:11] Speaker 02:
the situation where someone is stopped for a legitimate traffic reason, and it also happens that the officer can't stand this guy's cousin, it doesn't take away from the fact that it's legitimate.

[00:17:27] Speaker 02:
And so I wonder why that first sentence, it doesn't sort of trump the rest of it.

[00:17:34] Speaker 04:
Well, I have a question as a matter of law.

[00:17:36] Speaker 04:
If part of the reason was retaliatory, but part of the reason was at will, what's the law on that?

[00:17:47] Speaker 01:
That's the point, is the jury has to have the opportunity to hear whether or not the other non-legitimate reason argued for the reason for termination was a substantially motivating factor.

[00:17:59] Speaker 04:
Does it have to be primary, or is the law substantially motivating?

[00:18:06] Speaker 04:
What is the law on that?

[00:18:07] Speaker 04:
Let's say he has two reasons.

[00:18:10] Speaker 04:
I don't like the type of DA that you are, and that would be okay, but I really didn't like that you went to the press.

[00:18:19] Speaker 04:
I don't like that you complained about because public defenders were not conveying plea bargains, which I think is something of public concern because you don't want judges taking pleas from people if they've been offered something better.

[00:18:37] Speaker 04:
and then they get convicted at trial, and then you have to, like say for example, they got offered a manslaughter, and then they go to trial, and they get convicted of murder, and I have to sentence someone to a life sentence, I can't then make it a, I can't make it a voluntary manslaughter.

[00:18:55] Speaker 04:
And then they can file a habeas, and then it puts doubt on the whole integrity of the system.

[00:19:01] Speaker 04:
So I think that's a public concern issue.

[00:19:04] Speaker 03:
The Chronicle article doesn't mention Mr. Osley, correct?

[00:19:08] Speaker 03:
How would anyone know that this March 4, 2019 Chronicle article actually involved Mr. Osley at all?

[00:19:17] Speaker 03:
If you look at the article, it just says a defendant spoke to the

[00:19:23] Speaker 03:
reporter and told the reporter about the defendant's case, and then actually has quotes from the record of the judge speaking.

[00:19:35] Speaker 01:
Yes, because as the court just acknowledged a moment ago, it's a small community between the DAs and the public defenders.

[00:19:42] Speaker 01:
They know each other's cases.

[00:19:43] Speaker 01:
They work on each other's cases, and this case in particular that the reporter commented on was one that Mr. Ostley was involved with.

[00:19:51] Speaker 01:
They would have known

[00:19:52] Speaker 01:
It was him who provided the information, because in this case demonstrates exactly why it was Mr. Osley acting as a private citizen on a matter of public concern, or at least operating outside of the normal course of business.

[00:20:07] Speaker 01:
Because that was the case where the defendant was accused of basically stealing and selling some Beyonce tickets.

[00:20:15] Speaker 01:
The plea bargain was not communicated to him.

[00:20:18] Speaker 01:
Once that happened, he got new counsel.

[00:20:24] Speaker 01:
Mr. Osley actually testified on his behalf.

[00:20:28] Speaker 01:
Now, that is not something that is required for him, nor I think had ever been heard of within the district attorney's office, that he felt that there was an injustice done and testified on behalf of the defendant at the ineffective assistance of counsel hearing.

[00:20:45] Speaker 01:
That type of case.

[00:20:47] Speaker 01:
is one that they all would have known of because that was also one that was very severe in terms of the allegations that were being made against the public defenders for not communicating a settlement plea deal.

[00:21:01] Speaker 04:
Well, we've taken you over.

[00:21:02] Speaker 04:
Let me see if my colleagues have any additional questions.

[00:21:05] Speaker 03:
No, thank you.

[00:21:06] Speaker 04:
Okay.

[00:21:07] Speaker 04:
I'll give you two minutes for rebuttal since we obviously utilized a fair amount of your time to answer our questions.

[00:21:13] Speaker 03:
Okay.

[00:21:13] Speaker 04:
We'll hear from the county and the city.

[00:21:16] Speaker 04:
Thank you.

[00:21:21] Speaker 00:
Good morning, justices.

[00:21:22] Speaker 00:
Thank you for the opportunity.

[00:21:24] Speaker 00:
I wanted to start off- What's your name?

[00:21:26] Speaker 00:
My name is Peter Cowan.

[00:21:27] Speaker 00:
I'm the assistant chief labor attorney for the city and county of San Francisco.

[00:21:32] Speaker 00:
Okay.

[00:21:32] Speaker 00:
Thank you.

[00:21:33] Speaker 00:
Good morning.

[00:21:33] Speaker 00:
Good morning.

[00:21:34] Speaker 00:
I'd like to start off by emphasizing a point, Justice Callahan, that you raised, which is this is a occurrence

[00:21:41] Speaker 00:
that is common in San Francisco, where when we have a new district attorney or a new appointed officer, particularly in the district attorney's office, who comes in, they look at the staff and they make decisions about, at the very first week, which of those individuals they want to keep.

[00:21:56] Speaker 00:
What happened with Mr. Oxley is not uncommon.

[00:21:59] Speaker 00:
It's happened before and it happens after.

[00:22:01] Speaker 00:
The question that the city poses for this bench is, in those circumstances, when we have allegations of retaliation,

[00:22:11] Speaker 00:
What evidence does the employee need to show to survive summary judgment?

[00:22:16] Speaker 04:
Well, when you grant summary judgment, you basically say no reasonable juror would find in someone's favor.

[00:22:24] Speaker 04:
So let's just assume for a moment that I'm a reasonable juror.

[00:22:30] Speaker 04:
And I'm saying, I'm seeing a lot of circumstantial evidence that there was a retaliatory motive based on, yeah, that he could get rid of them.

[00:22:40] Speaker 04:
And I think that Mr. Osley and Mr. Bodine cleared to be completely different type of DAs.

[00:22:47] Speaker 04:
And that's an ongoing thing in society.

[00:22:50] Speaker 04:
And then he probably got voted out of office because people said, you're too progressive.

[00:22:55] Speaker 04:
that people get to speak on that.

[00:22:57] Speaker 04:
So it's an ongoing thing.

[00:23:00] Speaker 04:
So if that's all there is, I'm completely with you.

[00:23:03] Speaker 04:
But since I have a hard time perhaps, having been a trial judge, sentencing people, and obviously you want to believe that plea bargains are ... You don't want to take a plea from someone

[00:23:21] Speaker 04:
if they don't have all the information.

[00:23:23] Speaker 04:
And I don't think society wants the courts accepting pleas or supporting convictions or sentences when the defendant has not had a proper opportunity to have all of the information.

[00:23:39] Speaker 04:
That's it, because not only does it make us not believe in the system, it also undermines that there's a likelihood of granting a new trial, granting a habeas,

[00:23:50] Speaker 04:
any number of things because it's not fair to the defendant.

[00:23:55] Speaker 04:
We don't want that to happen to defendants.

[00:23:58] Speaker 04:
And so there is a component of that here.

[00:24:01] Speaker 04:
And also too, prosecutors have a ton of power that I think we can all acknowledge.

[00:24:09] Speaker 04:
We don't want prosecutors exercising that power in an intimidated way because they represent what's called

[00:24:16] Speaker 04:
the people of the state of California.

[00:24:18] Speaker 04:
That includes the defendants, it includes any alleged victims, and it includes all of us sitting out there.

[00:24:24] Speaker 04:
We want prosecutors making independent decisions based on the facts and the law.

[00:24:30] Speaker 04:
If the public defender's office is filing complaints against DAs, not just Mr. Ossley, and there's

[00:24:38] Speaker 04:
That would concern me.

[00:24:39] Speaker 04:
That concerns me that if I get arrested, that those prosecutors are going to be afraid to make an independent decision if they think they're going to have to go to the state bar.

[00:24:52] Speaker 04:
So why aren't those issues of public concern?

[00:24:55] Speaker 00:
Justice Callahan, I wouldn't, sitting here or standing here today in front of you, I wouldn't even focus you on the public concern aspect.

[00:25:03] Speaker 00:
I would focus- You concede it?

[00:25:05] Speaker 03:
You can see that's a matter of public concern.

[00:25:08] Speaker 03:
If the public defenders are not conveying plea offers to clients.

[00:25:12] Speaker 00:
If it's a systematic issue that he is going to the press on and saying, systematically, I see evidence, not just in my cases, but in many different cases.

[00:25:22] Speaker 03:
Why does it have to be systematic?

[00:25:24] Speaker 03:
If there's one public defender who's doing that for all, however many clients he has, why isn't that a matter of public concern?

[00:25:32] Speaker 00:
I think the direct answer is that it would still be a matter of public concern.

[00:25:37] Speaker 00:
My issue is that it would as a result though of that activity, the activity that he is pursuit or conducting as a result of his job as an assistant district attorney.

[00:25:47] Speaker 00:
It is not as a private citizen.

[00:25:49] Speaker 00:
And that's the import, particularly in this case.

[00:25:52] Speaker 03:
But it's not part of his job to whistleblow on misconduct in another office of which he's not a member, right?

[00:25:59] Speaker 03:
I would agree with you if he's a whistleblower of other assistant DAs in his own office, right?

[00:26:06] Speaker 03:
That might be part of his job duties.

[00:26:08] Speaker 03:
But how is it part of his job duties to be a whistleblower in an entirely separate office?

[00:26:14] Speaker 00:
I apologize, Justice, I'm not sure I follow.

[00:26:16] Speaker 00:
The way I see it is that if it's only if Mr. Ossie was speaking as he was as to the cases he individually was prosecuting,

[00:26:28] Speaker 00:
and he's complaining about the activities of the assistant or deputy public defenders across the bar, then those are specific to his case.

[00:26:37] Speaker 04:
But public defenders were complaining about other DAs too, not just him, right?

[00:26:45] Speaker 04:
They were just filing complaints against DAs with the state bar.

[00:26:50] Speaker 00:
The evidence before this court is that

[00:26:54] Speaker 00:
a state bar complaint was filed by the Public Defender's Office against Mr. Offsley.

[00:26:58] Speaker 00:
And Mr. Offsley, in conclusory fashion, asserts that he believes there were filings against other individuals as well.

[00:27:05] Speaker 00:
But my recollection is that there is no evidence about other ADAs having state bar complaints filed against them.

[00:27:13] Speaker 04:
Well, I guess if we're saying that's conclusory, and so therefore let's throw it out.

[00:27:19] Speaker 04:
You know, Mr. Bodine saying he knows nothing about any of this, okay, if I'm a reasonable juror and how those offices coordinate and how...

[00:27:31] Speaker 04:
Isn't this just a matter that the jury should decide?

[00:27:33] Speaker 04:
Did he get rid of him because he was at will and not consistent with his view of how prosecutors should be?

[00:27:41] Speaker 04:
Or did he get rid of him substantially for the reason that this guy, Mr. Osley, had complained?

[00:27:52] Speaker 04:
You don't have to be a rocket scientist to link him, I think, as your friend on the other side said.

[00:27:58] Speaker 04:
to being the person that was talking to the press and the court.

[00:28:02] Speaker 04:
I mean, these offices, they coordinate with each other.

[00:28:05] Speaker 04:
They see each other every single day, and they talk.

[00:28:10] Speaker 04:
It's hard for me to look at straight-faced.

[00:28:13] Speaker 04:
Now, there is that, why can't a jury decide why Mr. Bodine did this?

[00:28:20] Speaker 00:
The only reason is because the plaintiff in this particular case has produced no evidence from which a jury can make that inference.

[00:28:28] Speaker 00:
had they deposed Mr. Boudin, had they deposed anyone to say, hey, you're aware, generally, of what occurs.

[00:28:36] Speaker 00:
You meet these.

[00:28:38] Speaker 00:
You go to the A50 Bryant Hall of Justice, and you talk to individuals.

[00:28:42] Speaker 00:
If they had made any of those statements, perhaps that's a different question.

[00:28:46] Speaker 00:
But that's not before this court, nor was it before the district court.

[00:28:50] Speaker 00:
And I'd also like to point out one fact that has not been ever addressed by my recollection, which is that the actions of the public defender and adverse office to the district attorney's office cannot be retaliatory employment actions.

[00:29:07] Speaker 00:
The only connection here is- But I don't understand that.

[00:29:09] Speaker 04:
Say that again.

[00:29:11] Speaker 04:
I don't understand that.

[00:29:12] Speaker 00:
The appointing officer for the office of the public defender is the elected official of the public defender.

[00:29:18] Speaker 00:
He's the one who gets to make employment decisions about individuals within his office, within the public defender's office.

[00:29:25] Speaker 00:
The same is true for the district attorney's office.

[00:29:28] Speaker 00:
Per the charter, the appointed officer is the elected district attorney.

[00:29:32] Speaker 00:
They make personnel decisions.

[00:29:33] Speaker 04:
And that's Mr. Bodine in this case.

[00:29:35] Speaker 00:
Correct.

[00:29:36] Speaker 00:
And so if Mr. Ossley could tie Mr. Boudin to some of this, which as the court, as the justices have already indicated, he could not.

[00:29:44] Speaker 00:
There is no evidence.

[00:29:45] Speaker 00:
And frankly, the evidence we've put in front of the court is not simply a statement from Mr. Boudin saying, I was not aware of the activity Ossley's saying.

[00:29:55] Speaker 03:
Let's take a look, because we just need to find a material factual dispute.

[00:29:59] Speaker 03:
He says, I do not recall.

[00:30:01] Speaker 03:
being aware.

[00:30:02] Speaker 03:
And he doesn't disavow knowing about the San Francisco Chronicle article.

[00:30:07] Speaker 03:
He doesn't disavow knowing about Mr. Osley's 2017 case where the public defender allegedly did not convey a plea offer to his or her client.

[00:30:19] Speaker 03:
So there's sort of

[00:30:24] Speaker 03:
I don't want to say cagey, but there's certain ways that this declaration that is drafted that you could make an inference another way.

[00:30:32] Speaker 00:
I hear, Justice, your point about- It's very lawyerly.

[00:30:37] Speaker 04:
It's very lawyerly.

[00:30:38] Speaker 04:
I don't recall.

[00:30:39] Speaker 04:
You can't be accused of perjury if you don't recall something, but if you said it didn't happen, then you could.

[00:30:46] Speaker 00:
Another view of that, Justice, though, is that this is a person who is saying, look, as I make this declaration, I don't ever recall being aware of any of these statements.

[00:30:56] Speaker 00:
And Justice Coe, you're correct that he doesn't call out specifically the Chronicle article.

[00:31:01] Speaker 00:
But what he does say is that Mr. Osley makes complaints about the Public Defender's Office.

[00:31:10] Speaker 00:
Mr. Osley makes complaints about Sunshine Record requests.

[00:31:14] Speaker 00:
and asking for public record acts.

[00:31:16] Speaker 00:
And Mr. Boudin makes clear that he's not aware of any of those.

[00:31:20] Speaker 00:
He doesn't recall ever being aware.

[00:31:23] Speaker 00:
And importantly, in conjunction with that statement of what he was not aware of, he makes the statements about why he makes... So why doesn't a jury just get to decide who they believe on that?

[00:31:34] Speaker 04:
I mean, I'm sure there were other people that Mr. Bodine let go that didn't have the history that he had with Mr. Ostley.

[00:31:44] Speaker 04:
So I'm sure there were other people that just, it was clean, said, hey, you're not my kind of DA, you're out of here.

[00:31:51] Speaker 00:
Because at the very minimum, the city would posture that there needs to be some evidence from which a jury can say that Mr. Boudin, first of all, was aware of this activity or somehow relied on or motivated by it.

[00:32:03] Speaker 04:
Well, they could disbelieve him.

[00:32:05] Speaker 04:
They could disbelieve him.

[00:32:06] Speaker 04:
They could have, there's a lot of, they could just say, under the circumstances of this, I find it improbable that you didn't know and that it wasn't part of your calculus.

[00:32:16] Speaker 04:
Or on the other hand, they could say,

[00:32:19] Speaker 04:
Yeah, you knew about it, but I don't think that's what motivated you.

[00:32:23] Speaker 00:
Respectfully, I believe if that was to become the standard on summary judgment, then no defendant would ever win summary judgment in such a circumstance.

[00:32:33] Speaker 04:
But on the other hand, if I'm not a reasonable juror, because I think it's circumstantial evidence, but Judge Chen thinks it's speculative evidence, you have to say I'm not a reasonable juror.

[00:32:49] Speaker 04:
That's the bottom line.

[00:32:51] Speaker 02:
Is there any evidence, there's been a lot of conversation from opposing counsel about how everybody in the offices knew everything about everybody.

[00:33:03] Speaker 02:
And this took place two days, the termination took place only two days after Mr. Boudin took office, I think, something like that.

[00:33:17] Speaker 02:
It was very, very quick.

[00:33:19] Speaker 02:
And is there any evidence about conversations that took place or people meeting to try to figure out everybody's stance on different things, or was this just lickety split?

[00:33:40] Speaker 00:
When you say when people meeting, you mean within boot camp?

[00:33:44] Speaker 02:
Well, opposing counsel was saying that in an office like this, everybody knows everybody's business.

[00:33:49] Speaker 02:
And my question is, is there evidence that in two days, Mr. Boudin knew everybody's business, or is that just a supposition?

[00:34:02] Speaker 00:
It's absolutely a sub position.

[00:34:03] Speaker 00:
And I would argue that the actual evidence here shows that Mr. Ossley, for instance, doesn't even know everything about the other side.

[00:34:10] Speaker 00:
Mr. Ossley testified or their argument at the district court was that Mr. Boudin and a public defender, Solomon, shared an office together and that he must have known of all Solomon's comments about Mr. Ossley because they shared an office together.

[00:34:27] Speaker 02:
And that's the subject of the second declaration, right?

[00:34:30] Speaker 00:
Correct.

[00:34:30] Speaker 00:
Simply to illustrate that not only was that speculation, but that was flatly incorrect.

[00:34:36] Speaker 03:
And I think the arguments here are- It did share an office for a few weeks in 2016, right?

[00:34:41] Speaker 00:
Correct.

[00:34:42] Speaker 03:
Okay.

[00:34:43] Speaker 03:
What evidence in the record is there that everybody knew everybody's business in the public defender's office?

[00:34:50] Speaker 03:
Is there any evidence in the record of that?

[00:34:52] Speaker 00:
The only evidence I'm aware of is a self-serving declaration from Mr. Ostley himself who says that he was familiar with everyone because they all worked around each other.

[00:35:02] Speaker 00:
But it's a generic 10,000 foot statement not specific to any particular statement.

[00:35:07] Speaker 04:
Well, it is evidence.

[00:35:08] Speaker 04:
It's a question of what's the value of that.

[00:35:10] Speaker 04:
He does say that.

[00:35:12] Speaker 00:
He says that, correct.

[00:35:13] Speaker 04:
But also there's the email that

[00:35:16] Speaker 04:
I think the woman sent to everyone in the entire office.

[00:35:19] Speaker 04:
So there is some evidence that they can communicate with everyone in the office, right?

[00:35:25] Speaker 00:
Absolutely.

[00:35:26] Speaker 00:
There's no dispute that there are all office-wide communications.

[00:35:30] Speaker 00:
Again, none of them talk about any of the alleged protected speech at issue here.

[00:35:35] Speaker 03:
Mr. Ostley's declaration, when he's saying everyone knows about everyone's business, is he referring to the public defender's office?

[00:35:41] Speaker 00:
I believe he is.

[00:35:42] Speaker 03:
And what's his basis to know what everyone in the public defender's office knows as an assistant DA?

[00:35:49] Speaker 00:
I have no idea.

[00:35:51] Speaker 04:
So I think Judge Graber asked a question about that the firing was pretty immediate.

[00:36:00] Speaker 04:
And the district court believed proximity was lacking between Mr. Ostley's speech and his termination.

[00:36:06] Speaker 04:
But couldn't a reasonable juror conclude that the gap in time was only because Mr. Bodeen

[00:36:11] Speaker 04:
was not in a position to retaliate until they became part of the DA's office, and that is he fired Mr. Osley two days after he got there.

[00:36:20] Speaker 04:
Isn't that a way a reasonable juror could look at it?

[00:36:23] Speaker 00:
Not within the context of Mr. Boudin's statement that he had no information as to any of those statements, as well as to the reasons, the affirmative reasons why Mr. Boudin decided to release Mr. Osley.

[00:36:37] Speaker 00:
Justice, as my time is up, may I make one comment about the affirmative defense?

[00:36:41] Speaker 00:
Sure.

[00:36:43] Speaker 00:
Just one point to emphasize here is that separate and apart from the conversations about public concern, about whether he was doing this as a public employee or causation, the evidence before the court as the district court, I believe, found also explains via the declaration of Mr. Boudin his lack of knowledge and more importantly,

[00:37:04] Speaker 00:
the basis for which he made the decision to release Mr. Ossley.

[00:37:09] Speaker 04:
Well, so doesn't, but if he says that, isn't he deciding right there that he believes Mr. Bodeen?

[00:37:16] Speaker 04:
I mean, which is what you don't do on summary judgment.

[00:37:21] Speaker 04:
I mean, you look at the evidence, but he must be deciding that he believes Mr. Bodeen that he didn't know.

[00:37:26] Speaker 00:
I believe that what the order does is to say that in light of the affirmative evidence the city has put forward by Mr. Boudin's declaration, and in light of the absence of any evidence that Mr. Osley has put forward, the only fair and reasonable inference is that Mr. Boudin was not aware of Mr. Osley's speech.

[00:37:49] Speaker 00:
and was in fact motivated by the reasons he said in the declaration.

[00:37:52] Speaker 04:
So are you sticking to your guns, as it were, that Mr. Ostley was a private speaker?

[00:38:02] Speaker 00:
I apologize.

[00:38:05] Speaker 04:
No, you're saying, well, I guess the district court also found Mr. Ostley mostly was not speaking as a private citizen because he was not speaking in contravention.

[00:38:14] Speaker 04:
of orders by his superiors, but it seems there were no orders related to his speech.

[00:38:19] Speaker 04:
In that case, shouldn't the third Dahlia versus Rodriguez factor be neutral?

[00:38:30] Speaker 00:
The various different speeches at issue here have different levels of analysis in terms of private speech or public employee speech.

[00:38:40] Speaker 00:
When we were talking earlier about the cases that Mr. Aussie was complaining about, it's the city's position in those cases that he was pursuing or carrying out his role as an assistant district attorney.

[00:38:53] Speaker 00:
And so he would not be speaking as a private citizen in those situations.

[00:38:57] Speaker 04:
Well, I guess I have some trouble with the district court's finding that none of Mr. Ostley's speech was protected under the First Amendment.

[00:39:03] Speaker 04:
For instance, he told the press about public defenders not conveying settlement offer in one of the cases, which, if true, I think is fairly egregious conduct.

[00:39:13] Speaker 04:
So how is that speech not a matter of public concern?

[00:39:17] Speaker 00:
And Justice, I agree that that at least creates- There is no justice on the Ninth Circuit.

[00:39:24] Speaker 00:
I apologize.

[00:39:25] Speaker 00:
Thank you, Your Honor.

[00:39:26] Speaker 00:
The explanation I think that the city would take in terms of the press statements is simply that the press statements, even if they were touching on matters of public concern, even if they were made by Mr. Ostley as a private individual, there is no evidence at all

[00:39:46] Speaker 00:
from which a jury or this court or the district court can conclude that Mr. Boudin was ever aware of those statements.

[00:39:53] Speaker 00:
And in fact, the only evidence that exists is Mr. Boudin's statement under penalty of perjury that's uncontradicted

[00:40:00] Speaker 00:
which says he does not recall ever being aware of those statements.

[00:40:04] Speaker 00:
And frankly, that makes sense given that there's no allegation, and I believe the evidence shows, Mr. Boudin was not the public defender sitting opposite Mr. Ostley on those cases.

[00:40:14] Speaker 00:
It was Ms.

[00:40:15] Speaker 00:
Solomon.

[00:40:16] Speaker 00:
And Ms.

[00:40:16] Speaker 00:
Solomon and Mr. Boudin, there's no evidence that they spoke about those cases and what was going on.

[00:40:21] Speaker 04:
Who was the public defender that wrote the office-wide email?

[00:40:29] Speaker 00:
It's one of two individuals I don't remember exactly who.

[00:40:32] Speaker 00:
It's either Ms.

[00:40:33] Speaker 00:
Solomon, who is the Deputy Public Defender, or it was someone above her named Peter Callaway, who was charged with drafting the complaint.

[00:40:45] Speaker 04:
Okay.

[00:40:47] Speaker 04:
Do either of my colleagues have additional questions?

[00:40:49] Speaker 04:
No, thank you.

[00:40:50] Speaker 04:
Okay.

[00:40:51] Speaker 04:
Thank you for your argument.

[00:40:53] Speaker 04:
Thank you, Your Honor.

[00:40:53] Speaker 04:
All right.

[00:40:54] Speaker 04:
You have two minutes.

[00:40:59] Speaker 01:
Thank you, Your Honors.

[00:41:00] Speaker 01:
I'll try and be succinct here.

[00:41:01] Speaker 01:
First of all, I want to distinguish between speculation and circumstantial evidence, because at least there's confusion on my part, maybe, with some of the questions.

[00:41:10] Speaker 01:
So Mr. Osley's declaration in the exhibits are circumstantial evidence.

[00:41:16] Speaker 01:
These are things that are within his personal knowledge, things he heard, things he saw.

[00:41:21] Speaker 03:
Why didn't you depose Mr. Boudin?

[00:41:23] Speaker 01:
That was a timing issue, frankly, Your Honor.

[00:41:26] Speaker 01:
We were going to.

[00:41:28] Speaker 01:
In the end, it wasn't essential to us because they never deposed Mr. Osley.

[00:41:33] Speaker 01:
Actions speak louder than words.

[00:41:35] Speaker 01:
We had the documents that we introduced.

[00:41:38] Speaker 01:
We had Mr. Osley's verified complaint, his declaration.

[00:41:42] Speaker 01:
They didn't take his deposition.

[00:41:44] Speaker 01:
We felt no need.

[00:41:45] Speaker 01:
And what would be the point?

[00:41:47] Speaker 01:
Did you retaliate?

[00:41:48] Speaker 01:
No.

[00:41:49] Speaker 01:
Did you know?

[00:41:49] Speaker 01:
No.

[00:41:50] Speaker 01:
It would have just been denial, as was the declaration, which

[00:41:55] Speaker 01:
even casts more suspicion on the declaration, why not be more specific?

[00:42:00] Speaker 01:
You don't have a deposition saying anything different.

[00:42:03] Speaker 01:
Why not just say?

[00:42:04] Speaker 03:
When you file the lawsuit, it's your burden, right?

[00:42:06] Speaker 01:
Yes, yes, it's our burden.

[00:42:08] Speaker 01:
And the burden was there.

[00:42:09] Speaker 01:
It's circumstantial.

[00:42:10] Speaker 01:
This is why I wanted to make the distinction.

[00:42:12] Speaker 01:
Speculation would be the things in Mr. Boudin's declaration, because he's provided no evidence.

[00:42:20] Speaker 01:
Oh, there's coworker complaints, citizen complaints, my experience with him.

[00:42:25] Speaker 01:
There's nothing of substance.

[00:42:27] Speaker 01:
He doesn't say what he saw, what he heard, who complained.

[00:42:30] Speaker 01:
There's no, that's speculation.

[00:42:32] Speaker 01:
And as the court had pointed out.

[00:42:34] Speaker 02:
Imprecision, but it's not speculation.

[00:42:38] Speaker 02:
Speculation is sort of making something that there's no link, and therefore something is speculative.

[00:42:49] Speaker 02:
If I say, I like breakfast food, but I don't tell you what specifically, it's not speculative.

[00:42:57] Speaker 02:
It's just not very precise.

[00:42:59] Speaker 02:
which is different, I think.

[00:43:02] Speaker 01:
And Your Honor, the point is this.

[00:43:03] Speaker 01:
As the court said, this is something that should be decided by a fact finder, a jury, not a judge.

[00:43:09] Speaker 01:
These are circumstantial evidence.

[00:43:11] Speaker 01:
These are facts that a jury is free to disregard and disbelieve Mr. Osley.

[00:43:16] Speaker 01:
But at this stage, it never should have been denied.

[00:43:18] Speaker 01:
And the causation issue,

[00:43:20] Speaker 01:
that there's timing if you look at just from the events starting in March all the way through from the article for all of the in court accusations to the bar complaint to Mr. Boudin being elected and Mr. Osley being terminated to then having

[00:43:36] Speaker 01:
his fee agreement with the city immediately revoked, now giving basically Mr. Callaway and the public defender free rein to go ahead and pursue these bar complaints because Mr. Boudin now has a policy of we are going to use our discretion not to defend these folks, when that has been the history prior to defend them.

[00:43:56] Speaker 01:
And there is, counsel said there's no evidence of another bar complaint.

[00:44:01] Speaker 01:
The redacted, they produced it, there is evidence.

[00:44:04] Speaker 01:
In the documents, there's a redacted complaint.

[00:44:06] Speaker 01:
You'll recall a document that's just blank, blank, blank.

[00:44:10] Speaker 01:
And that was supposedly a complaint against somebody else, not Mr. Osley.

[00:44:14] Speaker 01:
So it's not true to say that there wasn't other complaints.

[00:44:17] Speaker 01:
The request for public records, why would this have been an individual issue?

[00:44:21] Speaker 01:
Why was Mr. Osley requesting every complaint by every public defender against every district attorney?

[00:44:27] Speaker 01:
This was not just unique to him.

[00:44:28] Speaker 01:
He was trying to get information.

[00:44:30] Speaker 03:
But in the first amended complaint, Mr. Osley alleges that that Sunshine petition and that record search was for the defense of his own case, correct?

[00:44:39] Speaker 03:
Ah, thank you.

[00:44:41] Speaker 01:
Yes, this idea that it can't be two things at once.

[00:44:43] Speaker 01:
Oh, I'm sorry.

[00:44:45] Speaker 01:
I'm sorry.

[00:44:46] Speaker 01:
We're not in a trial court here.

[00:44:47] Speaker 01:
I know.

[00:44:48] Speaker 01:
I know.

[00:44:51] Speaker 01:
The idea that this can't be two things at once is nowhere stated in any piece of case law.

[00:44:57] Speaker 01:
In fact, it's the opposite.

[00:44:58] Speaker 01:
An individual's dispute or issue can also be a matter of public concern, as was the case here.

[00:45:06] Speaker 01:
How do you separate the two?

[00:45:08] Speaker 01:
If the complaint is that the public defender is making false bar complaints against prosecutors, and I happen to be one of them, does that remove it from being a matter of public concern?

[00:45:22] Speaker 01:
No.

[00:45:23] Speaker 01:
So his request for records wasn't just related to the bar complaint against him.

[00:45:28] Speaker 01:
That's exactly my point.

[00:45:30] Speaker 01:
He went beyond.

[00:45:31] Speaker 01:
He was asking for other records.

[00:45:33] Speaker 01:
And the Sunshine ordinance even said, this was all prior to his termination, by the way.

[00:45:38] Speaker 01:
preceded his termination.

[00:45:39] Speaker 01:
So if this was a request for records to the public defender's office, the fact that Mr. Boudin disclaims any knowledge of it creates a further question.

[00:45:49] Speaker 01:
Oh, so why were the public defenders not asked for records?

[00:45:53] Speaker 01:
Why did they ignore them?

[00:45:56] Speaker 04:
Okay, I think we have both of your arguments in mind.

[00:45:59] Speaker 04:
Thank you both for your arguments here today.

[00:46:01] Speaker 04:
Unless my colleagues have any additional questions, this will conclude the argument portion and this matter will be submitted.

[00:46:08] Speaker 04:
Thank you.