[00:00:09] Speaker 01:
Next we have Henry versus Sean.

[00:00:12] Speaker 01:
Is that right?

[00:00:58] Speaker 03:
Good morning, your honor.

[00:00:59] Speaker 03:
May it please the court.

[00:01:00] Speaker 03:
David Force on behalf of the defendants.

[00:01:03] Speaker 03:
I'd like to reserve five minutes for my rebuttal.

[00:01:07] Speaker 03:
This court should reverse the denial of qualified immunity because the Supreme Court has recognized that governmental employees do not have unfettered free speech rights.

[00:01:16] Speaker 03:
That is true for high level executives like Ms.

[00:01:19] Speaker 03:
Henry, who impaired her and the Department of Health's ability to interact with local health boards during the COVID-19 pandemic.

[00:01:28] Speaker 03:
Moreover, even if Ms.

[00:01:29] Speaker 03:
Henry was able to prove a constitutional violation, it is also her burden to show that the right was clearly established at the time.

[00:01:38] Speaker 02:
Council, if I might start with our jurisdiction.

[00:01:41] Speaker 02:
In order for us to have jurisdiction over this interlocutory appeal, we can't be looking at fact issues, correct?

[00:01:48] Speaker 03:
You can't be looking at disputes of material facts and deciding on those material facts.

[00:01:53] Speaker 03:
That's correct, Your Honor.

[00:01:53] Speaker 02:
So the way that I see that persons asserting qualified immunity try to deal with that problem of appellate jurisdiction is to admit the opposing party's version of the facts and say assume arguing that that's so, okay?

[00:02:06] Speaker 02:
If we do that though, doesn't that get right back to a fact issue that precludes qualified immunity and leaves it for trial?

[00:02:13] Speaker 03:
Pardon?

[00:02:14] Speaker 03:
No, because even assuming the plaintiff's version of facts in this case, the constitutional rights under Pickering in this case are not clearly established, even if we assume those rights.

[00:02:26] Speaker 03:
And moreover, the rights in this particular case, or the facts in this case, are not in dispute.

[00:02:33] Speaker 03:
We know what happened in this case.

[00:02:35] Speaker 03:
We know Ms.

[00:02:36] Speaker 03:
Henry sent the email.

[00:02:37] Speaker 03:
It's undisputed.

[00:02:38] Speaker 03:
We know there was a disruption at the February 8th meeting with SHRD.

[00:02:44] Speaker 03:
That's Ms.

[00:02:45] Speaker 03:
Henry's version of the events.

[00:02:47] Speaker 03:
Dr. Shah, who was also there, doesn't dispute that version of events.

[00:02:53] Speaker 03:
Then we have the unchallenged statements that other local health boards were made aware of Ms.

[00:03:01] Speaker 03:
Henry's email, and those local health boards had issues with the Department of Health.

[00:03:06] Speaker 01:
From Ms.. Henry's sure I agree with your characterization of that being unchallenged I mean there was there's a dispute about whether the evidence regarding the effect on local health jurisdictions was actually substantial and material enough and whether her email was the cause of any disruption versus other pre-existing or exacerbating conditions like the hiring of

[00:03:36] Speaker 01:
Personnel who were other personnel both you know before and after the email Other personnel who sent similar email.

[00:03:46] Speaker 01:
It's my understanding right that there is pre-existing tension essentially between the state and the local health jurisdictions There was some pre-existing tension between the Department of Health and the local health boards and miss Henry in her

[00:04:04] Speaker 03:
response only addressed Spokane Health Regional Board.

[00:04:09] Speaker 03:
She did not address the other local health boards that she dealt with, and that portion was uncontradicted.

[00:04:15] Speaker 01:
So other than the testimony that there was some there, so there was questioning in the deposition about who, when, evidence, any sort of specifics.

[00:04:23] Speaker 01:
So from what I can see, there is a conclusory assertion, a general assertion that there were, that the email was raised with

[00:04:33] Speaker 01:
out any specifics.

[00:04:34] Speaker 01:
Why is that enough to meet the defendant's burden at summary judgment?

[00:04:38] Speaker 03:
Because the burden is on the plaintiff, Ms.

[00:04:41] Speaker 03:
Henry, to establish a dispute of material facts.

[00:04:45] Speaker 03:
And in this particular case, she doesn't challenge those other findings.

[00:04:50] Speaker 03:
All she says is that they couldn't identify the specifics.

[00:04:54] Speaker 03:
But that's not a challenge to those underlying facts.

[00:04:57] Speaker 00:
And moreover... That seems right there.

[00:05:02] Speaker 00:
exactly why this is going back to Judge Fitzwater's question.

[00:05:07] Speaker 00:
You take the facts as alleged and we accept those.

[00:05:11] Speaker 00:
And now you're saying, but she can't dispute other facts which have no specifics.

[00:05:17] Speaker 00:
That makes no sense to me in the summary judgment context.

[00:05:21] Speaker 03:
Well, in summary judgment, she's required to offer evidence that disputes the fact that the department came up and said other local health districts were disrupted.

[00:05:32] Speaker 03:
in this situation.

[00:05:33] Speaker 03:
She's required to put on evidence of that.

[00:05:35] Speaker 03:
She did not.

[00:05:37] Speaker 00:
Well, let me go back to our fundamental question, which is why I think you started out.

[00:05:41] Speaker 00:
You're basically saying there is no clearly established law.

[00:05:46] Speaker 00:
And so we have Pickering, of course, and that's well briefed by both parties.

[00:05:50] Speaker 00:
But what about the Freytag case?

[00:05:53] Speaker 00:
Why doesn't that basically give fair warning that if you have this kind of speech and it's made as a private citizen,

[00:06:02] Speaker 00:
that you have the ability to make this kind of a complaint.

[00:06:07] Speaker 03:
The Freytag case is not applicable in this particular situation in that it only deals with one factor.

[00:06:15] Speaker 03:
The Pickering Test is a multi-factorial test.

[00:06:18] Speaker 00:
I understand, but is Freytag clearly established law to put the individuals, county, and otherwise unnoticed?

[00:06:26] Speaker 03:
In this particular case, no.

[00:06:28] Speaker 00:
It's not even a fraction?

[00:06:30] Speaker 00:
I mean, you're saying it has no relevance at all?

[00:06:33] Speaker 03:
It's a portion.

[00:06:35] Speaker 03:
But, Your Honor, in this particular case, when you're dealing with a balancing test like Pickering, you have to take all the factors that are weighing in favor of protected speech versus not protected speech, and then determine if all those factors that you're analyzing are clearly established.

[00:06:53] Speaker 03:
In this particular case, Frytag doesn't do that.

[00:06:57] Speaker 03:
Frytag doesn't balance those other factors, such as the disruption to the other local health boards, the lack of trust created by Ms.

[00:07:05] Speaker 03:
Henry's email, the damage to that relationship

[00:07:09] Speaker 03:
that it was her job duty to discuss and analyze and help those local health boards respond to the pandemic.

[00:07:18] Speaker 03:
Additionally, Ms.

[00:07:19] Speaker 03:
Henry was an assistant secretary of the Department of Health.

[00:07:24] Speaker 03:
That high-level status is far different than we had in the Frytag case.

[00:07:30] Speaker 03:
And those factors, when you look at all of those factors combined,

[00:07:34] Speaker 03:
That's what has to be clearly established in order to survive summary judgment.

[00:07:39] Speaker 03:
In this case, the Freytag case doesn't do that.

[00:07:43] Speaker 03:
And in this case, that's where the plaintiff is missing from the analysis on the clearly established element.

[00:07:51] Speaker 00:
As this court reckons... So let's go through the... She can speak as a private citizen.

[00:07:58] Speaker 00:
Is that in dispute here that she endeavored to speak as a private citizen?

[00:08:02] Speaker 03:
That's only one of the factors.

[00:08:04] Speaker 00:
Let's go one by one.

[00:08:06] Speaker 03:
Sure.

[00:08:07] Speaker 03:
She attempted to speak as a private citizen even though the health board did recognize her as a Department of Health employee.

[00:08:17] Speaker 00:
So what you've then focused on are, going down the line of other pickering factors, this disruption.

[00:08:23] Speaker 00:
But when I look at that, I'm led to conclude there seems to be a dispute as to how much or the degree of disruption.

[00:08:32] Speaker 00:
What is your response to that?

[00:08:34] Speaker 03:
Well, that's why it's not clearly established, Your Honor.

[00:08:37] Speaker 00:
It's not clearly established or it raises a material issue of fact?

[00:08:40] Speaker 03:
Even if we accept Ms.

[00:08:42] Speaker 03:
Henry's version of the facts, if that is a disputed fact, which I do not believe it is, I believe it's a dispute of a legal conclusion.

[00:08:50] Speaker 03:
But even if we assume that, for purposes of clearly established law, there is no, the factors outlined in Pickering are necessary

[00:09:01] Speaker 03:
to establish the clearly established element.

[00:09:04] Speaker 03:
And you have to consider all of them, not just one.

[00:09:07] Speaker 03:
And in fact, when you look at whether she was speaking as a private citizen, this court in Barone actually addressed that it's a practical analysis.

[00:09:16] Speaker 03:
It's not a one factor fits all analysis.

[00:09:20] Speaker 03:
So she may have intended it to be a private citizen and sent from her private account, but it was in relation to her specific job duties as an assistant secretary of health.

[00:09:31] Speaker 01:
multiple cases, starting from Pickering itself, which says just because the private speech is related to the plaintiff's job doesn't make it within the scope of their job.

[00:09:45] Speaker 01:
And in fact, Pickering itself was a teacher writing to his school board complaining about how the school board was spending education funds that was 100% related to their job as a teacher, but found not to be still protected private speech.

[00:10:01] Speaker 01:
So case after case, and other cases which say if it's related, but not actually within the scope of their job duties, it is protected.

[00:10:11] Speaker 03:
It is true that that's what it says.

[00:10:14] Speaker 03:
But in this particular case, it is specifically her job duty to coordinate the response.

[00:10:21] Speaker 01:
But that is a disputed fact.

[00:10:23] Speaker 03:
There is no dispute as to her job duties in this particular case.

[00:10:27] Speaker 03:
The only evidence in the record as to what Ms.

[00:10:30] Speaker 03:
Henry's job duties are comes from the job description and the termination letter from Ms.

[00:10:37] Speaker 03:
Tordovich.

[00:10:38] Speaker 02:
But she testified in her deposition that she'd never seen her job duties written out, correct?

[00:10:43] Speaker 03:
That's correct.

[00:10:43] Speaker 03:
But she never disputed that those were her actual job duties.

[00:10:47] Speaker 01:
She is disputing whether she had any response.

[00:10:50] Speaker 01:
I mean, because she was commenting on a personnel decision by the district in which she resides.

[00:11:00] Speaker 01:
And she is disputing, is my understanding, whether commenting on such personnel

[00:11:06] Speaker 01:
decisions was within her scope of her job.

[00:11:11] Speaker 03:
Yes, and that is why the clearly established element isn't met in this case, Your Honor.

[00:11:17] Speaker 03:
If we move to the clearly established element, it is not clearly established that that discussion of a personnel decision directly related to the COVID response

[00:11:29] Speaker 03:
from SHRD is not within her job duties.

[00:11:32] Speaker 01:
Well, if it's a factual dispute, whether it's within the scope of her job duties, if we resolve that factual dispute, we assume that it would be resolved in her favor because she is the non-moving party, then it would not be in her job duties.

[00:11:47] Speaker 01:
And then we apply.

[00:11:48] Speaker 01:
Then we consider whether it is clearly established with someone who speaks about something that is not within their job duties.

[00:11:57] Speaker 01:
speaking as a private citizen?

[00:11:59] Speaker 01:
And the answer would have to be yes.

[00:12:02] Speaker 03:
I see that I'm into my rebuttal.

[00:12:03] Speaker 03:
May I respond, Your Honor?

[00:12:05] Speaker 03:
Again, the analysis is not one factor.

[00:12:11] Speaker 03:
It is one element.

[00:12:12] Speaker 03:
This is a factor test.

[00:12:14] Speaker 03:
And the factors all weigh in favor of this is not private speech because it is related to the COVID response that she helped coordinate at the local level.

[00:12:26] Speaker 03:
Moreover,

[00:12:27] Speaker 03:
Ms.

[00:12:28] Speaker 03:
Tortovich specifically told her there is nothing the department can do about SHRD's decision to terminate Dr. Lutz.

[00:12:37] Speaker 03:
And she went ahead and made a statement on that very topic in direct contradiction of that, which is an element that this court considers under DALIA to determine whether that's private speech or not.

[00:12:51] Speaker 03:
And so given all of the factors, it is not clearly established that the department's decision

[00:12:57] Speaker 03:
was a constitutional violation, and I'll go ahead and reserve the remainder of my time.

[00:13:01] Speaker 02:
Thank you.

[00:13:09] Speaker 04:
Thank you, Your Honors.

[00:13:10] Speaker 04:
May it please the Court, Marcus Sweetser for Erica Henry.

[00:13:12] Speaker 04:
This is my first time before the Court of Appeals.

[00:13:15] Speaker 04:
I think Your Honors touched on a lot of the points that I would like to touch on.

[00:13:19] Speaker 04:
I just want to say it's an honor and privilege to be here for the first time as well.

[00:13:22] Speaker 04:
I want to start with the standard of review that I think you've already

[00:13:25] Speaker 04:
Spoken to this is a qualified immunity appeal on interlocutory review So henry's facts have to be accepted as true those disputes according to the trial court include her job duties They include the alleged disruption whether it was an actual disruption and whether it was a substantial disruption And they also includes this the state's pretextual motives the trial court judge dimkey was extremely thorough in her review of a lengthy record and found multiple genuine disputes and

[00:13:55] Speaker 04:
Of those material facts and so the state's invitation here to reweigh those facts at this stage is not proper Underqualified immunity review before what do you do counsel with this court's statement in Moran?

[00:14:09] Speaker 02:
That the law is is rarely going to be clearly established in this area.

[00:14:13] Speaker 02:
You've got a pickering balancing test What do you do with Moran?

[00:14:18] Speaker 04:
Yeah great question your honor, and I do think that's where the state leans most heavily in this case on

[00:14:24] Speaker 04:
There's a statement in Moran about the rarity of finding on the pickering balancing, right?

[00:14:31] Speaker 04:
And then also whether or not Moran addresses a high-level policymaker.

[00:14:37] Speaker 04:
Now, they changed that language a bit in their briefing, and today they call it a high-level executive.

[00:14:42] Speaker 04:
So we have to look closely at Moran, including a case subsequent to Henry, the case of Damiano, I believe, also addresses that.

[00:14:51] Speaker 04:
So looking at Moran, the state leans on that and characterizes Henry as a high-level policymaker.

[00:14:57] Speaker 04:
I think there's really two big problems with that statement.

[00:15:00] Speaker 04:
The first is Henry's job duties are in dispute.

[00:15:04] Speaker 04:
They've produced a job description that is not applicable to Henry.

[00:15:07] Speaker 04:
It's not even her title.

[00:15:09] Speaker 04:
It's unsigned by Henry, and Henry testified she doesn't recognize it.

[00:15:14] Speaker 04:
Second, looking to the facts in Moran.

[00:15:16] Speaker 04:
Moran involved an employee

[00:15:19] Speaker 04:
that was working under an elected insurance commissioner and sided with other employees under the insurance commissioner to directly dispute the policy the insurance commissioner had run on and was seeking to put into place.

[00:15:34] Speaker 04:
And this was done, according to that case, multiple times.

[00:15:37] Speaker 04:
It was direct in subordination according to the Moran Court.

[00:15:42] Speaker 04:
Now, Henry did nothing of the sort.

[00:15:45] Speaker 04:
When Henry sends her email, first of all,

[00:15:48] Speaker 04:
She had no duty to complain to the Spokane Health Board about personnel decisions.

[00:15:54] Speaker 04:
She'd never spoken to any of the Spokane Health Board's members personally or in her role within the Department of Health before.

[00:16:02] Speaker 04:
She'd never spoken with Amelia Clark before.

[00:16:05] Speaker 04:
She did nothing to seek to directly undermine the Department of Health, nor Dr. Shah.

[00:16:12] Speaker 04:
recall that Dr. Shaw, at the point that she sends her email, had not even been appointed to the Department of Health yet.

[00:16:19] Speaker 04:
He came in afterwards.

[00:16:22] Speaker 04:
So Henry does nothing to directly undermine

[00:16:24] Speaker 04:
And on top of that, Henry was actually told that she could send an email.

[00:16:30] Speaker 04:
She had the right to send an email as a private citizen, both before and after the emails brought up at the meeting.

[00:16:37] Speaker 04:
Before sending the email, Henry talked to her legislative policy advisor and government affairs official, the resident experts on these issues, where she's told you have the right to send an email as a private citizen.

[00:16:50] Speaker 04:
And then afterwards, when the email comes out in the meeting, she immediately notifies her chief of staff to Dorovich, who texts her back, and this is in the record, and says, you had every right to send that email as a private citizen to your local board.

[00:17:04] Speaker 04:
So here we see that Henry's doing nothing to undermine and actually took active steps to take her public hat off and to communicate as a private citizen, as is her right under Freytag.

[00:17:18] Speaker 04:
In actuality, what this was was a new secretary that was coming into Spokane into a politically tense situation that had nothing to do with Henry.

[00:17:29] Speaker 04:
And because of the outburst that's described as passionate and direct by Mr. Kevin, Mayor Kevin Freeman, he formed a misguided but politically motivated belief that firing Henry would somehow reset the relations with the Spokane Board of Health.

[00:17:47] Speaker 04:
that turned out not to be true, that by firing Henry, it did nothing to help the relations nor fix anything at all.

[00:17:58] Speaker 04:
So again, moving back to Moran and one last point on this issue, to show that Henry's email did nothing to undermine, she sends the email four months before it's ever brought up by Mayor Kevin Freeman at the instigation of

[00:18:15] Speaker 04:
Amelia Clark, the official that she criticized.

[00:18:17] Speaker 04:
And during those four months, what happens?

[00:18:20] Speaker 04:
There's no complaints about Henry.

[00:18:21] Speaker 04:
There's no performance issues.

[00:18:23] Speaker 04:
There's no operational disruption.

[00:18:25] Speaker 04:
There's no diminishment in the collaboration between the two boards that's associated to Henry.

[00:18:33] Speaker 04:
When the state board's investigator is asked, can you identify any actual impact that was caused by Henry's email?

[00:18:40] Speaker 04:
And he's unable to identify any.

[00:18:41] Speaker 04:
If the state's own investigator can't identify an impact,

[00:18:45] Speaker 04:
The state does not get to conjure one up at this stage in the proceedings.

[00:18:50] Speaker 00:
Well, going back to that whole question of the adequate justification, it can't be mere speculation, the cases have indicated.

[00:18:59] Speaker 00:
But we have here a situation where your friend on the other side said, well, you know, they have this big meeting.

[00:19:04] Speaker 00:
There's a contentious meeting.

[00:19:06] Speaker 00:
There's a breakdown in trust.

[00:19:08] Speaker 00:
So with those facts,

[00:19:12] Speaker 00:
What kind of evidence do you have that still falls on your side of this pickering balance test?

[00:19:18] Speaker 04:
Yeah, and just because you use the word adequate your honor.

[00:19:20] Speaker 04:
I just want to make sure I clarify your question We're speaking here about prong for underpickering and not prong five which would be some alternative adequate justification Thank you your honor with that speaking to the disruption that they've brought up as a public employee speech is certainly not

[00:19:37] Speaker 04:
It's certainly not unlimited.

[00:19:38] Speaker 04:
There are limits to public employee speech.

[00:19:40] Speaker 04:
That's recognized.

[00:19:41] Speaker 04:
But let's look to the cases where disruption was actually found.

[00:19:45] Speaker 04:
City of San Diego versus Roe provides a great example.

[00:19:48] Speaker 04:
There, the United States Supreme Court was dealing with a police officer that had created pornographic videos while in uniform and published them.

[00:19:57] Speaker 04:
That caused a recruitment problem for that police department, in particular the ability to recruit female officers.

[00:20:04] Speaker 04:
That's operational disruption.

[00:20:07] Speaker 04:
Henry's case is far removed from that.

[00:20:10] Speaker 04:
There's no operational disruption at all for some of the facts that I've already mentioned.

[00:20:15] Speaker 04:
Again, there's four months after she sends the email, nobody brings it up.

[00:20:19] Speaker 04:
There's no complaints, negative performance reviews.

[00:20:22] Speaker 04:
The Spokane board members themselves testified that until Amelia Clark instigated this, they had no idea who Henry was and did not even associate her email with the Department of Health.

[00:20:34] Speaker 04:
They also testified

[00:20:35] Speaker 04:
that Henry's email had no impact on the relations and that removing Henry did nothing to alter the relations between these two entities.

[00:20:47] Speaker 04:
I wanna pause there because I think you brought up two really critical important points, Moran and you also brought up the disruption.

[00:20:55] Speaker 04:
Did you have any questions on that, the factual record or the law before I continue to some of my other points?

[00:21:02] Speaker 02:
I'm not sure if it fits here, but if we affirm, could the defense of qualified immunity be raised at trial?

[00:21:10] Speaker 04:
It could, Your Honor.

[00:21:12] Speaker 04:
Yes, it's a genuine dispute of material fact, but I believe the case law instructs the trial judge to be careful about the way that the jury instructions are provided in that regard.

[00:21:21] Speaker 04:
So I think there are some perhaps special interrogatories that the trial court may consider, but the trial court cannot answer the purely legal question of qualified immunity.

[00:21:31] Speaker 04:
Did I properly answer that?

[00:21:32] Speaker 00:
Well, I mean, what happens when it goes back for trial is qualified immunity, of course, it gives you a right not to go to trial, if it's granted.

[00:21:42] Speaker 00:
But it seems to me that this remand, because of a factual issue, would not foreclose the immunity question from being litigated at the trial level.

[00:21:56] Speaker 04:
I believe I'm tracking that.

[00:22:00] Speaker 04:
I don't think we have a disagreement on that, that it remains an open question.

[00:22:03] Speaker 01:
The judge would still be responsible for determining the ultimate question of whether the right was clearly established assuming after the jury resolves the various material factual disputes.

[00:22:17] Speaker 04:
That is my understanding of our current state of the jury's prudence.

[00:22:20] Speaker 04:
There's going to be some genuine issues in material fact.

[00:22:22] Speaker 04:
Again, here I think the big ones are

[00:22:24] Speaker 04:
the job duties, the state's protectual motive, and excuse me, the alleged disruption, whether it was actual and substantial or there's a reasonable prediction of substantial.

[00:22:37] Speaker 01:
The judge would also have to ultimately resolve the pickering balance in question on step one, whether there is a violation both on the merits and at step one in qualified immunity after the jury resolves material questions of fact about whether

[00:22:54] Speaker 01:
she was speaking as a private citizen, whether her email actually caused disruption, and to what extent?

[00:23:02] Speaker 04:
Yes.

[00:23:03] Speaker 04:
Yes, that's my understanding, Your Honor.

[00:23:06] Speaker 04:
I have a few other points that I want to raise per conic, which is just the context in which this email comes in.

[00:23:11] Speaker 04:
That's going to take just about a couple minutes to do.

[00:23:14] Speaker 04:
So before I go there, was there further questions that the court would like me to address?

[00:23:19] Speaker 04:
OK.

[00:23:21] Speaker 04:
So if the court's able to reach the merits here, and again,

[00:23:24] Speaker 04:
Just to be clear, our position is that there are disputes of fact here that preclude the finding that the state is asking for here.

[00:23:31] Speaker 04:
But if the state were to reach the merits, taking Henry's facts as true, in order to follow the defendant's position, which is an expansion of Moran, no public employee would feel safe to communicate with their elected officials about a public safety issue without fear of jeopardizing their livelihood.

[00:23:49] Speaker 04:
That cannot stand.

[00:23:52] Speaker 04:
So per Connick, we set the context.

[00:23:54] Speaker 04:
Henry's email was sent and she was told she had the right to send this email as a private citizen to her local health board.

[00:24:02] Speaker 04:
So she writes it from her own home, from her personal Gmail, not using her title, not referencing the Department of Health, signing it only in her personal name and sending it to elected members on the Spokane Health Board.

[00:24:13] Speaker 04:
Her email's not sent in a vacuum.

[00:24:16] Speaker 04:
It submits a wave of community protest over Administrator Clark's unlawful ouster

[00:24:21] Speaker 04:
of Spokane's health officer and the public safety implications of Clark's actions in ousting the administrative offer were immense.

[00:24:28] Speaker 04:
Without an acting local health officer, Spokane lacked legal authority to implement mitigation efforts in response to a global pandemic, COVID.

[00:24:39] Speaker 04:
So protests in response to Clark's actions erupted in the streets.

[00:24:43] Speaker 04:
Thousands of people in Spokane were marching in the streets during the pandemic.

[00:24:48] Speaker 04:
There was a Change.org petition that amassed thousands of signatures, and there were thousands of citizen emails that were sent to the Spokane Board of Health.

[00:24:57] Speaker 04:
Those Spokane Board of Health members were publicly calling for citizen input before the upcoming vote about whether or not to reinstate Dr. Lutz.

[00:25:05] Speaker 04:
In the Spokesman Review, our leading newspaper said people will die because of the actions taken by Amelia Clarke.

[00:25:16] Speaker 04:
Henry urged the Spokane Board of Health in her personal capacity to reinstate Dr. Lutz to protect the community where both her husband and her children attended public school on a daily basis.

[00:25:29] Speaker 04:
This was no different than Henry walking up to the podium and saying the exact same words

[00:25:33] Speaker 04:
to the elected board members before they took that vote.

[00:25:37] Speaker 04:
It's no different than a photo being captured of Henry marching in the protest.

[00:25:40] Speaker 04:
She did not do that.

[00:25:41] Speaker 04:
But if there were a photo that were captured of Henry walking in a protest to communicate her position as a private citizen, and that being dug out of an archive months later, it is no different than that.

[00:25:53] Speaker 04:
These are fundamental First Amendment rights to both speech and petition to our elected representatives that we enjoy in a democratic society.

[00:26:02] Speaker 04:
And our courts have long recognized this.

[00:26:04] Speaker 04:
So just to set the record on this, Per Freytag and Griesen, which we briefed thoroughly, our courts have long recognized that speech and petition to elected officials regarding threats to public safety, government misconduct or abuse, all sit at the highest rung of First Amendment protection.

[00:26:22] Speaker 04:
And so when they speak about the balancing test under Pickering, it is those rights at the highest rung of first protection that have to be outweighed by the substantial disruption that they're alleging.

[00:26:34] Speaker 04:
And here there is none.

[00:26:35] Speaker 04:
There is no substantial disruption, and there's no reasonable prediction of a substantial disruption.

[00:26:41] Speaker 04:
Those facts have been thoroughly litigated.

[00:26:43] Speaker 04:
Those facts have been thoroughly reviewed by our trial court judge.

[00:26:47] Speaker 04:
And the trial court judge properly ruled that those represent genuine disputes of material fact.

[00:26:52] Speaker 02:
Counsel, how would you respond to the assertion that somebody must be liable for what happened here, but Dr. Shaw is not.

[00:27:00] Speaker 02:
He came to this very late, early in his tenure as his position.

[00:27:05] Speaker 02:
What's his motive to do anything?

[00:27:08] Speaker 04:
Well, the record is thorough with Dr. Shaw's statements about his motive in wanting Henry to be terminated.

[00:27:17] Speaker 04:
He first testifies that it didn't take a leap of imagination for him to assume

[00:27:22] Speaker 04:
Henry should be terminated.

[00:27:23] Speaker 04:
It's the very next morning after reading the contents of Henry's email that he sends an email to the chief of staff and says, I want to talk to you about how we're handling this moving forward.

[00:27:33] Speaker 04:
This is the same chief of staff that just the day before had told Henry she had every right to send this email.

[00:27:38] Speaker 04:
We see from there that chief of staff opens the investigation.

[00:27:41] Speaker 04:
During the investigation, Shaw makes numerous statements that Henry should have sent the email anonymously.

[00:27:46] Speaker 04:
Your Honor, did you have?

[00:27:48] Speaker 01:
Sorry, yes.

[00:27:48] Speaker 01:
It reminded me of a question I had about the record.

[00:27:51] Speaker 01:
apologies for interrupting that My understanding is after the meeting involving dr. Shaw and the Spokane health board that two emails were given to dr. Shaw one was the plaintiff's email and one was an email that was actually sent by Tony Smith is that correct and Tony Smith was also a former employee of That of Spokane who was hired by the state is that correct?

[00:28:19] Speaker 04:
I just see that I'm out of time.

[00:28:20] Speaker 04:
I want to be respectful.

[00:28:22] Speaker 04:
May I respond?

[00:28:23] Speaker 04:
Yes.

[00:28:23] Speaker 04:
Thank you, Your Honor.

[00:28:24] Speaker 04:
Yes, the record does show that an envelope marked confidential was handed to Dr. Shaw.

[00:28:29] Speaker 04:
And in that envelope, multiple emails, including an email from Torney Smith, was contained in that envelope.

[00:28:36] Speaker 04:
It was multiple emails from Department of Health employees that were sent at this same time period.

[00:28:42] Speaker 04:
Those emails were not produced by the state in Discovery, so I can't speak to the specifics of what those emails said.

[00:28:48] Speaker 04:
But there is evidence in the record that that is what that envelope contained So if there's no further questions in closing your honor in this country We should not be firing citizens for writing their elected officials about public safety concerns.

[00:29:04] Speaker 04:
We should be protecting them We urge the court to affirm.

[00:29:06] Speaker 04:
Thank you I

[00:29:18] Speaker 03:
I want to first point out, your honor, that in arguments of council just recently, he said it was, this was an issue of public health.

[00:29:28] Speaker 03:
That was what this email was about.

[00:29:30] Speaker 03:
And that's exactly what it is.

[00:29:32] Speaker 03:
Ms.

[00:29:33] Speaker 03:
Henry was the assistant secretary of health.

[00:29:37] Speaker 03:
Her job was to provide technical assistance on emergency planning and responses to local health boards during the pandemic.

[00:29:45] Speaker 03:
She was also responsible for approving grant and aid to these local health boards.

[00:29:52] Speaker 03:
This was her job, was to prepare for and deal with the pandemic that she was commenting on.

[00:29:59] Speaker 03:
So it was clearly within the statement of her job duties.

[00:30:06] Speaker 03:
Moreover, the court in Freytag, this court and council liked to talk about Freytag, but Freytag,

[00:30:15] Speaker 03:
the court made a specific factual finding that Freytag's email to the senator in that case was on a sexual harassment claim was not within her job duties.

[00:30:30] Speaker 03:
It wasn't specific to her job, and therefore it was protected speech.

[00:30:33] Speaker 03:
That's not the case in this particular case.

[00:30:37] Speaker 03:
Moreover, the Moran court was brought up, and that is why this case is not

[00:30:43] Speaker 03:
clearly established.

[00:30:44] Speaker 03:
Moran has said when you look at all of the factors that are in play, it is rarely if ever clearly established.

[00:30:53] Speaker 03:
Freytag is one factor.

[00:30:56] Speaker 03:
All the other cases are single individual factors.

[00:30:59] Speaker 03:
The plaintiff and Ms.

[00:31:00] Speaker 03:
Henry in this case argues this case as if it's an elements case, not a factor test, in that one element is missing, therefore

[00:31:08] Speaker 03:
a party prevails.

[00:31:09] Speaker 03:
That's not what pickering requires.

[00:31:11] Speaker 03:
Pickering is a balancing test.

[00:31:14] Speaker 03:
It requires multiple factors to be looked at and then to be determined if those are clearly established.

[00:31:19] Speaker 03:
And in this case, there is no case on point that establishes that those factors are clearly established at the time of Ms.

[00:31:29] Speaker 03:
Henry's termination.

[00:31:31] Speaker 03:
Given the plaintiff's reliance on Frytag,

[00:31:36] Speaker 03:
and others, as we briefed, especially the Gilbrek case, which actually sets forth eight factors that aren't discussed by Ms.

[00:31:44] Speaker 03:
Henry, but actually indicate more reason that the Pickering Balancing Test is not clearly established.

[00:31:53] Speaker 03:
Those factors in Gilbrek, high-level executive, speaking on a matter related to their job duties, all relate and actually enforce

[00:32:04] Speaker 03:
and weigh in favor of this not being protected speech.

[00:32:08] Speaker 03:
And given that the evidence in this case is not clearly established to be a constitutional violation, we'd ask that the court reverse the denial of summary judgment.

[00:32:18] Speaker 03:
Thank you.

[00:32:20] Speaker 01:
Thank you, counsel.