[00:00:03] Speaker 01:
Good morning may please the court Jeffrey Schwab on behalf of California policy center I'd like to reserve 3 minutes for about.

[00:00:14] Speaker 01:
The district court committed 2 errors in dismissing this case first it aired in dismissing the case under rule 41 B.

[00:00:24] Speaker 01:
Under this court's precedent, what's required is that the court order require the plaintiff to file an amended complaint. The district court order did not require the plaintiff to file an amended complaint. And secondly, it must be a clear warning that if you do not file an amending complaint, then the case will be dismissed under Rule 41B, and the court's order does not do that either.

[00:00:59] Speaker 04:
The court's order did not require that you give notice that you're going to stand on the complaint as alleged. Correct. I don't mean literally, but, you know.

[00:01:10] Speaker 01:
Correct. There was nothing in the court order that said, if you intend not to file and you intend to stand on your complaint, then please notify the court or something like that. It just said that you must file any amended complaint by, I think it was July 29th, 2025. Failure to do so will result in dismissal with prejudice. But it doesn't mention Rule 41.

[00:01:37] Speaker 01:
And I think a reasonable interpretation of must file any amended complaint is if you're going to file a complaint, it must be done by this date.

[00:01:48] Speaker 01:
Just as if somebody said you must submit any questions by noon today, you wouldn't think that I'm required to submit questions. You would think if I have a question, I have to submit it before noon today. So that was our interpretation of those.

[00:02:07] Speaker 04:
So what do we do if we if we agree with you that that was procedurally incorrect?

[00:02:11] Speaker 01:
Then I think that you reverse the court's Rule 41B order, but you can move on to the 12B1 order.

[00:02:22] Speaker 01:
Both parties agree that that's what the court should address, and also it wouldn't be a good use of judicial resources because we would just be back here next time on the same argument.

[00:02:34] Speaker 04:
You would just say you're standing on your complaint, and I've said that there's no standing, so same thing.

[00:02:41] Speaker 01:
I'm sorry, I didn't understand the question.

[00:02:43] Speaker 04:
So if we were to send it back, if we were to say there was error here, procedural error, and the district court was wrong and dismissed it under Rule 41, it has to go back, the district court's likely just to reinstate her order.

[00:02:58] Speaker 01:
That's right.

[00:02:58] Speaker 04:
Correct?

[00:02:59] Speaker 01:
That's right. And then we would be back here with the same arguments that we've already preached.

[00:03:03] Speaker 02:
So you don't want an opportunity to amend it?

[00:03:07] Speaker 02:
No, because... You want to stand on your complaint.

[00:03:10] Speaker 01:
We do. Because as far as we're concerned, if the court is right, then there's no way that we can amend our complaint. If we're a political organization, there's no other facts that we can add that would make us subject to... That's obviously up to you.

[00:03:27] Speaker 01:
Yes, but that's the reason why.

[00:03:29] Speaker 02:
So let me get to on the merits.

[00:03:34] Speaker 02:
And if you want to argue more about what we should do about the nature of the dismissal, of course, feel free to do it. But you, and this is in a couple of places in your complaint, but I'll just start with paragraph 29 of your complaint.

[00:03:53] Speaker 02:
But there are similar things in the complaint and the brief. The act bans CPC from communicating with its employees during mandatory meetings about legislation regulations and decisions to join a labor union even though creating legislative and regulatory proposals is one of cpc's principal purposes so i would like you to point me to where in the statute that we're looking at it in fact bans you from communicating, vice bans you in certain circumstances from retaliating, because I don't see anything in the statute that bans you from communicating.

[00:04:36] Speaker 02:
So tell me where I've missed it. And I have the statute in front of me.

[00:04:41] Speaker 01:
The statute bans communication in mandatory meetings or other- Where?

[00:04:48] Speaker 02:
Where what they quote me the language of the statute to which you're referring which I have in front of me where it bans communicating as opposed to banning retaliating.

[00:05:06] Speaker 01:
I think it is in subsection C.

[00:05:13] Speaker 01:
An employer shall not subject or threaten to subject an employee to discharge, discrimination, retaliation, or any other adverse action because the employee declines to attend an employer-sponsored meeting or affirmatively declines to participate in, receive, or listen to any communications with the employer or its agents or representatives. The purpose of which is to communicate the employer's opinion about religious or political matters.

[00:05:37] Speaker 02:
So it says you can't retaliate for certain actions that the employee takes. But again, your complaint says you're banned from communicating and. Again, I don't see anything in the statute that bans you from communicating as opposed to if you have certain if you do certain things and the employee does certain things and you retaliate against the employee, you've got a problem. But to me, your whole complaint is based on this reading of the act of you can't communicate.

[00:06:14] Speaker 02:
And I don't see that anywhere in the act.

[00:06:17] Speaker 01:
Well, I think our argument is that it bans mandatory meetings and that California... But it doesn't.

[00:06:24] Speaker 02:
It doesn't ban mandatory meetings.

[00:06:28] Speaker 02:
You can set up mandatory meetings, but in certain circumstances, if an employee chooses not to attend them, you can't retaliate or withhold pay or do certain things. But I don't see anywhere that it bans you from holding the meeting. It stops you from doing certain things if the employee doesn't want to listen.

[00:06:48] Speaker 01:
Well, I think if a meeting is mandatory, that implies that if you don't attend, there's some consequence.

[00:06:55] Speaker 04:
That's not necessarily true.

[00:07:00] Speaker 04:
Well, I think if – You might have a top performer who decides they don't want to go to this meeting. Are you going to fire him even though you said it was a mandatory meeting?

[00:07:09] Speaker 01:
Look, yes. If you – it's of course within the discretion of the employer to decide how they're going to enforce mandatory meetings. But I've certainly not ever experienced, I mean, I've experienced like, hey, I'm going to miss this meeting because I've got this other thing going on. But I've never experienced somebody that just said, I'm never going to go to any of the meetings that are mandatory because I don't want to hear your your speech, I think the result of me saying that to my employer would be I'd be fired or at least I've had some consequence.

[00:07:48] Speaker 03:
So is your argument basically it can't be a mandatory meeting if the employer can't take some action against employees who refuse to attend?

[00:07:57] Speaker 01:
Yes, at least at some point. It doesn't mean that the employer always has to take some adverse action, but at least the ability to take adverse action if employees refuse to attend a meeting makes it mandatory.

[00:08:10] Speaker 03:
But as I understand your argument, the effect of the statute is to render the word mandatory completely toothless.

[00:08:21] Speaker 01:
Yes, because we cannot have mandatory meetings because we cannot – We can have voluntary meetings, but we can't have mandatory meetings because the result is if we mandate that all employees attend this meeting and we're discussing political stuff and they don't.

[00:08:37] Speaker 03:
There has to be something bad that happens to the employee who doesn't show up. Right. Otherwise, it's not a mandatory meeting.

[00:08:44] Speaker 02:
Correct.

[00:08:46] Speaker 02:
I'm sorry.

[00:08:46] Speaker 03:
No, I mean, that seems pretty common sense interpretation of the word mandatory to me.

[00:08:53] Speaker 02:
Have you argued anywhere to the district court that you intended to take any type of action against anyone who didn't attend a mandatory meeting?

[00:09:07] Speaker 01:
I don't know if we've put it that explicitly, but we have said that we have meetings that are all employees are required to attend. And I think that implies that if they don't meet the requirements of their job, then there will be some consequence.

[00:09:21] Speaker 04:
I still don't understand what you're complaining about. What is it that you're afraid of?

[00:09:27] Speaker 01:
What is that if we have these mandatory meetings that the commissioner or an employee will sue us and we'll be subject to five hundred dollars, a violation per employee, just significant amount.

[00:09:40] Speaker 04:
So this is a this is this is a classic pre enforcement case, correct?

[00:09:46] Speaker 01:
That's right. Yeah.

[00:09:48] Speaker 04:
Well, I mean, how do you have standing here? Where's the harm? Because you're just speculating.

[00:09:55] Speaker 01:
No, Your Honor, because in First Amendment cases like this, it's a chilled speech. So the fact that the California Policy Center could have the act enforced against them at any point actually chills their speech because they don't want to be subject to lawsuits and hundreds and thousands of dollars worth of fines. So the likelihood that any speaker is going to say, well...

[00:10:23] Speaker 01:
We think either we're exempt or this is unconstitutional, so we're going to do it anyway at the risk of subjecting themselves to these lawsuits and these fines. Chill speech. And I actually think that's the point. The point of the law isn't that employees will sue their employers, the commissioner will sue employers. I think the point of the act is to scare employees. Employers into submission.

[00:10:47] Speaker 02:
He said cancel. Let me let me ask you an extraordinarily convoluted hypothetical Let's say hypothetically I asked your friend Does the state Intend to bring any actions against anyone just for having a mandatory meeting And let's say hypothetically that your friend said, no, it's only if there's retaliation, not if there's simply holding a mandatory meeting.

[00:11:21] Speaker 02:
And let's add to my hypothetical that I don't think there's enough that you've established that there is anything that you would do about somebody who didn't show up at a mandatory meeting. In that convoluted hypothetical, would you like us to send it back for you to have a chance to amend your complaint?

[00:11:43] Speaker 01:
I suppose if you're suggesting that you will affirm the lower court if we don't then yes I would like that opportunity um but I do think that we have proved enough here and um I do think that given the the the chill go ahead go ahead finish answering given the chill that the um that the statute implies on employers that most employers will not feel able to require employees to attend meetings in which political or religious discussions are being had.

[00:12:21] Speaker 04:
So in Judge Bennett's hypothetical, I mean, you really are just – The first part of it is hypothetical. You really are just speculating that if you hold a mandatory meeting that the state may come in and try and do some sort of enforcement. I mean, that seems like a ridiculous – given the text of the statute, I don't find that at all. I mean, that's just pure speculation. Well, I think that the fact – And the only thing that you really can be concerned about is that some employee might potentially bring a claim, go to the – State commission, labor commissioner and file a complaint against you.

[00:12:56] Speaker 04:
Well, I mean, I don't that that's seems to be the only fear that you have.

[00:13:02] Speaker 01:
I don't think that's true for two reasons. One is I think that fear is a legitimate fear.

[00:13:08] Speaker 01:
And, you know, we haven't really.

[00:13:12] Speaker 01:
There are other of these statutes in other states. This particular statute actually does explicitly say that the commissioner is empowered to enforce the act. But, for example, in Illinois, the question before the Seventh Circuit is whether the government official is actually empowered, or can you not bring a pre-enforcement action because only private parties can bring pre-enforcement?

[00:13:42] Speaker 01:
it can bring complaints. I think there's a lot of problems constitutionally with that because you can imagine states taking advantage of that and violating people's constitutional rights left and right because you won't be able to bring a pre-enforcement action. I think I'm stealing a judge's from, I can't remember, Minnesota or Connecticut's point about, suppose a a state passes a law that says no woman can vote, but it's only enforced by private parties.

[00:14:12] Speaker 01:
But you can't bring in a pre-enforcement challenge. So the result is likely that a lot of women won't vote because they'll be subject to these lawsuits. I think that's a problem if that if we're going to say there's no standing to bring a challenge. This isn't as extreme.

[00:14:29] Speaker 02:
It wouldn't be a problem if the statute actually said you can't hold anything that you call a mandatory meeting.

[00:14:39] Speaker 02:
That would certainly discourage people from having mandatory meetings. But, I mean, my problem, which sounds like it's similar to Judge Paez's problem, is I don't read the statute as saying that.

[00:14:52] Speaker 02:
We've taken up a lot of time with your questions, but we'll give you three minutes for a rebuttal. Thank you. Yeah, I mean, you have another 17 seconds if you want to use it.

[00:15:01] Speaker 01:
I will say the other point is that the commissioner has not disavowed enforcement, even though she's had many opportunities to do so, which, and even despite the district court's order dismissing the case based on standing, we...

[00:15:18] Speaker 01:
She has not said that she's not going to enforce, and of course that order isn't binding on her.

[00:15:24] Speaker 03:
But does it make a difference that this statute also provides a private right of action against individual employees? Most of the pre-enforcement cases that have been published basically don't include that provision. This one contains the full panoply of potential ramifications to employers who are believed to be acting in violation of the act.

[00:15:48] Speaker 01:
I think the combination of the fact that the commissioner could enforce it, or even if she doesn't, an employee could enforce it. There's also provision that says something, or their representative. I suppose that's just a union.

[00:16:03] Speaker 03:
And because we're dealing with First Amendment rights here, the proof required for standing is a lesser burden than in other cases.

[00:16:13] Speaker 01:
Right. It just is a chill. Yeah. Okay. Thank you.

[00:16:28] Speaker 00:
Good morning, Your Honors. May it please the court.

[00:16:31] Speaker 00:
I think that as the colloquy the court just had with my friend on the other side makes clear that there is just too much speculative here about whether or not they will face enforcement, which is a necessary part of the test to demonstrate standing for a pre-enforcement challenge.

[00:16:46] Speaker 03:
Can you address the question I just finished with your friend earlier?

[00:16:52] Speaker 00:
Yes, with respect to the private right of action?

[00:16:54] Speaker 03:
Yeah.

[00:16:54] Speaker 00:
You know, look, I think that that may be something that would come into play. But again, there still has to be an establishment that there is a likelihood or there is a credible risk of enforcement, I believe. I'm not sure of the precise wording.

[00:17:08] Speaker 03:
But I guess my question is, isn't that risk increased by the fact that the statute provides a private cause of action to individual, what, private attorneys general? Is that what we call them in California? Yeah.

[00:17:20] Speaker 00:
Yes, it might, but I do think it's also worthwhile to keep in mind the type of organization we're dealing with here as plaintiff.

[00:17:27] Speaker 03:
I'm sorry, say that again.

[00:17:28] Speaker 00:
The type of organization that we're dealing with here as the plaintiff. Plaintiff is a political entity. It has, you know, espouses very specific views. It seems to me highly likely that employees who work for such an organization share the policy views of their employer, or at least open to hearing them. It'd be odd to take a job with a policy analyst think tank if you weren't open to your employer's policy position. So it seems unlikely there's going to be an employee who would want to bring an enforcement action, let alone employees who wouldn't want to attend these meetings to begin with.

[00:18:04] Speaker 02:
Let me get to my key question to you, counsel.

[00:18:09] Speaker 02:
Well, a couple of questions. First, do you agree with me, does the Attorney General agree with me that this statute does not ban mandatory meetings?

[00:18:20] Speaker 00:
The one caveat I do want to note is the statute does prohibit threatening to subject an employee.

[00:18:27] Speaker 02:
Does prohibit?

[00:18:28] Speaker 00:
threatening to subject an employee to adverse employment action. So I suppose you could envision a world where an employee understands that a mandatory meeting means there's a threat that if they don't attend, they'll be discipline taken. That might be very fact-specific with respect to, say, proving the outcome.

[00:18:50] Speaker 02:
Well, I mean, your friend is saying that that means... There is necessarily a chill. And so and I think there's a good point there. So are you is the attorney general saying that simply phrasing something as a mandatory meeting could violate the statute?

[00:19:13] Speaker 00:
If an employee would understand that that means there is a threat of discipline if they do not attend, that would fall within the language of the statute.

[00:19:21] Speaker 03:
What does mandatory mean if not a threat of some adverse action if you don't comply? Otherwise, it's not mandatory.

[00:19:29] Speaker 00:
Again, I think it might just depend on the workplace. I can imagine situations where employees routinely miss meetings and nothing happens versus places where they don't. But, you know, as lovely as it would be.

[00:19:41] Speaker 03:
But is that a mandatory meeting? That's the question that you're dancing around.

[00:19:45] Speaker 00:
I think it's easier just to focus on what it is that the statute says, which is that you can't threaten or subject an employee to discipline.

[00:19:54] Speaker 03:
But isn't that the definition of mandatory? That's what I'm wrestling with.

[00:19:59] Speaker 00:
If that's what Your Honor thinks, is that all mandatory meetings necessarily carry a threat of discipline?

[00:20:05] Speaker 03:
How can it be mandatory if there are no consequences that flow from failure to intent?

[00:20:10] Speaker 00:
If that's what Your Honor believes, then yes, the mandatory meetings would fall within the scope of the statute.

[00:20:15] Speaker 04:
Counselor, just a minute ago when I asked him about firing him, having a mandatory meeting and then your top performer doesn't show up and you're going to fire him? And his response was, well, no, it's kind of discretionary.

[00:20:28] Speaker 04:
It's a mandatory meeting, but really the way it's going to be implemented is the employer has discretion. They could take action or they could not take action.

[00:20:40] Speaker 04:
If you look at it that way, is it a mandatory quote-unquote meeting like Judge Tallman is suggesting?

[00:20:47] Speaker 00:
I think that maybe what would be helpful is to step back here and note that the statute does not prohibit meetings. Employers can have meetings. They're free to have whatever meetings they want on whatever topics they want. What the statute's really getting at is when an employer is using their economic power over their employees to compel them to attend and listen to what they have to say on non-job related aspects.

[00:21:09] Speaker 02:
Yeah, so but but when I asked you the question, I mean, when I read the statute, I read it as you can call something a mandatory meeting and it doesn't violate the statute, even though mandatory. common meaning is i think as judge talman suggests but i asked you um so can that by itself violate the statute and your answer was it depends on the circumstances and i appreciate your candor but the problem that i have with that answer is that if just using the term mandatory can violate the statute, uh, then I absolutely take the statement, um, in their complaint that, um, because just simple that this statute can forbid the, can forbid us having, um, these meetings and communications because you're saying that somebody could get sued by the Attorney General, depending on the circumstances, just using the term mandatory.

[00:22:24] Speaker 02:
So, I mean, it sounds to me if that's the Attorney General's view, and it's certainly the Attorney General has the right to have that view, then I definitely see a chill here.

[00:22:35] Speaker 00:
I think that our position would be that the statute forbids employers from requiring employees to attend that meeting. whether that's done by actually imposing discipline on the employees or that's done through the threat of doing so.

[00:22:50] Speaker 02:
Or the use of the word mandatory.

[00:22:52] Speaker 00:
If the use of the word mandatory is understood to carry with it that threat, then yes. I would love to lead into your interpretation, but I do have to be honest about what the statute says.

[00:23:01] Speaker 03:
Well, let me go back to the earlier answer that you gave. Are you disavowing any intent to enforce this statute because of your characterization of CPC as a political organization?

[00:23:14] Speaker 00:
So we do think that the allegations in the complaint make out a political organization. The difficulty is that the exemptions in the law are not categorical. They would only apply to a political organization with meetings related to a political tenant. Our position would be that insofar as what CPC wishes to do is to have meetings about its political tenants, that those would fall within the scope of the exemption. We just can't say categorically every meeting they would ever want to hold.

[00:23:41] Speaker 03:
What if they want to hold a mandatory meeting to talk about labor unions?

[00:23:46] Speaker 00:
If what they wish to do is to discuss their positions on unionization, that would be part of their political tenants.

[00:23:51] Speaker 03:
So you are disavowing an intent to enforce the statute against them if that's the topic that will be discussed at the meeting?

[00:23:59] Speaker 00:
With respect to political tenants, we do think they fall within that.

[00:24:02] Speaker 03:
I'm talking about labor unions too. The statute uses the two terms.

[00:24:06] Speaker 00:
To be precise, look, I think that there might be some questions if what was going on is their employees were attempting to unionize and the meetings were about the unionization of its particular employees. But leaving aside that caveat, if they're talking about their opinions on labor unions generally, policies about labor unions generally, Should there be public sector unions? Should employees have to pay dues?

[00:24:28] Speaker 03:
It's okay if the topic of conversation is discussing a proposed right-to-work bill. I can't imagine that would ever be introduced in the California legislature, at least that's presently made up.

[00:24:42] Speaker 03:
But it would not be okay if the purpose of the meeting is to deter their employees from organizing and collective bargaining. Okay. Is that right?

[00:24:53] Speaker 00:
I think that presents a closer question, but they don't at all indicate their employees are trying to bargain.

[00:24:58] Speaker 03:
You might bring an enforcement action under those circumstances.

[00:25:01] Speaker 00:
But I think that that's very speculative. There's nothing in the record in the complaint suggesting their employees are trying to organize, reunionize.

[00:25:07] Speaker 03:
But you're not giving CPC any comfort that the Attorney General won't.

[00:25:12] Speaker 03:
So why are we not in this conundrum here of chilling speech because the employer doesn't want to risk an enforcement action or a lawsuit by one of the employees?

[00:25:25] Speaker 00:
It's never going to be the case that there's a world in which an employer can 100 percent prove the employee attorney general is going to come after them or not. The question is whether or not they face a likely or credible threat of enforcement. And I don't think that's met here on the allegations.

[00:25:39] Speaker 03:
But if the attorney general can't answer that basic question, how is the employer going to do anything other than back away from the line? And that's what the Supreme Court has told us. amounts to a chilling of First Amendment rights.

[00:25:53] Speaker 00:
Two responses to that, Your Honor. First, we have said we think they're a political organization as the allegations lay out. So if they have meetings to discuss their political tenets, those would appear to fall within that. They would fall within that exemption.

[00:26:05] Speaker 03:
So political organizations, do they endorse candidates for political office? Do they offer candidates for political office?

[00:26:13] Speaker 00:
They do not, but we read based on how the statutory interpretation question would go. Their argument primarily is they're not a political organization for that reason. So are they a lobbyist? Based on what they allege, they allege that they put forth legislative proposals. They do trainings for elected officials. They just seem to be very intimately involved.

[00:26:37] Speaker 03:
That doesn't sound like a political organization to me.

[00:26:41] Speaker 00:
So I think that we start with sort of the plain language of the meanings, and we think that an entity whose primary purpose is related to policies, legislation, regulation, that that sort of entity would be within the plain language scope. I think you get that from the plain language.

[00:26:55] Speaker 03:
I think it's also helpful to look at the example... So are they Republicans, Democrats, Green Party? I mean, who are these people?

[00:27:04] Speaker 00:
I mean, I think that...

[00:27:08] Speaker 00:
You can envision lots of political organizations that perhaps are not affiliated with a particular party or that are about a particular partisan spin. You could envision a group.

[00:27:20] Speaker 03:
So is the American Civil Liberties Union a political organization in your view?

[00:27:25] Speaker 00:
Most likely, yes. We would think they would fall within the definition of the plain meaning.

[00:27:29] Speaker 03:
How about an environmentalist group? Are they a political organization because they want to protect the environment? Does that make them political organizations?

[00:27:37] Speaker 00:
I think that a group whose primary purposes are to propose legislation, to lobby, to push for the enactment of specific policies, to try to educate and sway legislatures towards the policies they like, that's all what they allege they do. We would argue that that is a political organization.

[00:27:54] Speaker 03:
A pretty broad definition of political organization, counsel.

[00:27:58] Speaker 00:
But the court doesn't necessarily need to get into the full scope of that.

[00:28:02] Speaker 04:
We're just stuck with what's in the complaint, right?

[00:28:04] Speaker 00:
We are. And I think that the complaint lays out something in the heartland. Yes, there may be questions at the margins. They raise all sorts of hypotheticals.

[00:28:10] Speaker 04:
Let me ask you this. How does the statute get enforced? Through the labor commissioner or through the attorney general?

[00:28:17] Speaker 00:
The labor commissioner would be the one that brings the action. Our office may be involved or not in that. I'm not as familiar with the nuances of the enforcement side. I mostly do the defense of the laws.

[00:28:29] Speaker 04:
Well, it's important. Judge Talman has asked about the private right of action. Let me ask you, does the worker, can the worker just bring a lawsuit independent of the administrative process?

[00:28:43] Speaker 00:
Yes, the subsection F1 of the statute provides that an employee who has suffered a violation can bring a civil action in state court.

[00:28:52] Speaker 04:
And they don't have to go through the administrative process before doing that?

[00:28:55] Speaker 00:
No.

[00:28:56] Speaker 04:
But they could go through the administrative process if they wanted to.

[00:29:00] Speaker 00:
I don't know why they couldn't.

[00:29:02] Speaker 04:
Well, the statute seems to allow for that, correct?

[00:29:05] Speaker 00:
It does specify that they can bring an action in a court of competent jurisdiction, so that would be open to them to pursue.

[00:29:11] Speaker 03:
And then subsection two goes on to say not only can they seek punitive damages, but they can also ask for appropriate temporary or preliminary injunctive relief.

[00:29:22] Speaker 00:
Yes. I mean, you can imagine an employee whose employer has said, you have to come to my prayer meetings or you're fired, who has suffered a loss of wages and wants the court to say you cannot require this person come to these meetings in the future or face consequences if they choose not to come to your prayer session. So that is an entirely appropriate remedy in that case.

[00:29:41] Speaker 03:
So that's that third category. We now recover politics, recover labor law, and now prayer sessions are prohibited. Yes.

[00:29:50] Speaker 00:
Well, yes, the law applies to both political and religious issues, although plaintiff here has not indicated they wish to do anything on the religious aspects of the law or anything related to religion.

[00:29:59] Speaker 03:
The statute, the more you talk about the statute, it's just breathtaking in its perspective.

[00:30:05] Speaker 00:
But this brings me back to the second point I wanted to make, though, to your earlier question, which is that the law does not prohibit them from having meetings. These employers can have any meeting they want.

[00:30:15] Speaker 03:
Well, it prohibits them from holding mandatory meetings if they're going to take or threaten any kind of adverse action on employees who don't attend.

[00:30:22] Speaker 00:
So it prohibits them from using the economic power they have over their employees to hold their employees hostage.

[00:30:28] Speaker 03:
If the topic of the meeting is prohibited under the statute, and that requires the enforcer to look at each topic and try and determine whether or not that's a permissible subject of public discussion.

[00:30:43] Speaker 00:
I just want to be cognizant of my time. I know we're sort of darting into the First Amendment issues here.

[00:30:48] Speaker 03:
There's that pesky First Amendment.

[00:30:50] Speaker 00:
No, I just I'm happy to go into that now. I just also know we have a steeple case coming.

[00:30:56] Speaker 03:
It's the heart of the concern, isn't it?

[00:30:58] Speaker 00:
It is. It is. And I think that. It's important to take a step back. We're at the threshold for some question of does this law regulate expression? This is a regulation of employee discipline, as your honors have said. And I do think it's critical to keep in mind that the First Amendment just doesn't give anyone the right to make another person listen to them.

[00:31:18] Speaker 00:
You have all the rights to speak, but you do not have the right to force somebody to listen.

[00:31:21] Speaker 03:
Can you cite me one case where the Supreme Court has applied the captive audience theory to a private meeting?

[00:31:30] Speaker 00:
I know that I'm almost out of time, but I do want to answer this.

[00:31:32] Speaker 03:
It's a simple question. I think the answer is no.

[00:31:35] Speaker 00:
I'm not aware of any, but again, I think that employees, they have applied captive audience doctrine to passengers on buses. It's been applied to students in school. It's been applied to individuals receiving health care. Public fora. It's about the situations where a person does not have the capacity to reasonably leave. I point to the language in Hill where the Supreme Court says.

[00:31:57] Speaker 03:
If the employee can't leave, then it must be mandatory.

[00:32:00] Speaker 00:
Yeah, the law is about, yes, if an employee is unable to walk out of the meeting, that is what this is about. This is about allowing employees the freedom to choose to walk away. Okay.

[00:32:11] Speaker 00:
I've noticed that I'm out of time, so I'm happy to engage much more on those issues in our sequel case.

[00:32:17] Speaker 02:
We'll be seeing you again.

[00:32:18] Speaker 00:
Thank you, Your Honors.

[00:32:19] Speaker 02:
But before you leave, I'm sorry.

[00:32:20] Speaker 00:
I wasn't trying to dodge them, I promise.

[00:32:22] Speaker 02:
Save it for round two after the break.

[00:32:25] Speaker 00:
Yes, thank you, Your Honors. Okay.

[00:32:35] Speaker 01:
Just a few points on going back to whether this actually bans mandatory meetings What we didn't discuss is the standard on a motion to dismiss and that is I think as the amicus brief points out whether the plaintiff is arguably prescribed by The law and I think here it's arguable that that the plaintiff can't hold mandatory meetings.

[00:33:02] Speaker 02:
Well, I'm sorry. No, go ahead, go ahead. I was going to say, I didn't think that going in, but it sounds to me that it's pretty clear that it's arguable.

[00:33:15] Speaker 01:
Of course, the commissioner won't say that mandatory meetings are definitely not.

[00:33:23] Speaker 01:
So I think that also leads to that. I think also going back to any adverse action, whatever that means, I mean, if the employer keeps a file, you missed four meetings and we're going to keep that in your record, that seems like an adverse action. So adverse action seems like a pretty broad term to me.

[00:33:42] Speaker 04:
So wait, I want to just back up just a little bit. Okay, so the case got here Because there was an improper dismissal under 41 instead of on the original order. Okay, so that, to me, that looks like that was wrong.

[00:33:59] Speaker 04:
So that gets us back to the reason why the district court dismissed the case. She determined that there was no standing, right? Correct. Now, if we say there that she erred or that was a mistake, should we send it back to the district court to address the merits of the First Amendment issue?

[00:34:25] Speaker 01:
Yes, absolutely.

[00:34:27] Speaker 04:
And that would give you a chance to amend your complaint, correct?

[00:34:30] Speaker 01:
If we decided to, yes. And maybe we will, given the questions of this court.

[00:34:57] Speaker 04:
to determine when and if she might take action in these kinds of cases. It all seems rather speculative to me, at least the way I looked at where we're at right now, because there are interesting questions here. And the state courts might answer some of these questions as well as to how to interpret these words in the statutes.

[00:35:18] Speaker 01:
I think the fact that this is a statute that chills speech is important because I think it's unlikely that— I understand the whole idea about mandatory.

[00:35:29] Speaker 04:
The statute doesn't talk about mandatory, but a puller could say, we're having a meeting. I want everybody there.

[00:35:36] Speaker 04:
Is that mandatory?

[00:35:38] Speaker 01:
Sounds like it.

[00:35:39] Speaker 04:
Sounds like it. Why? Just because we want everybody there? I want everybody there.

[00:35:45] Speaker 01:
I'm the boss. Of course, you don't know. It also can be mandatory in sort of retrospect if the employer takes action. Maybe they don't say it was a mandatory meeting, but then they take some adverse action after the fact.

[00:36:02] Speaker 04:
How can we say that's a mandatory meeting in that chill speech?

[00:36:06] Speaker 01:
Well, I think that what chills speech is the statute is pretty broad and unclear.

[00:36:12] Speaker 04:
What chills speech is the fear that the state's going to come in or an employee's going to file a lawsuit against you.

[00:36:19] Speaker 04:
Correct. All right. But if I say, look, I'm the boss. I want all of you at the meeting.

[00:36:25] Speaker 04:
Don't be late.

[00:36:27] Speaker 04:
Is that mandatory?

[00:36:29] Speaker 01:
Again, it sounds mandatory to me, and the problem is that that's not the employer's decision, apparently. It's the commissioner can decide to enforce the act if they think that's mandatory.

[00:36:43] Speaker 04:
I would think that a reasonable commissioner could look at that and say, oh, that's not mandatory.

[00:36:48] Speaker 01:
Maybe.

[00:36:48] Speaker 04:
The commissioner might say, well, you know, sounds like it's mandatory. I'm going to treat it as mandatory, and I don't like you doing this, so I'm going to sue you.

[00:37:00] Speaker 01:
I agree that it could go either way. I think that is the problem. That's what chills the speech is we have no idea what the bounds of this law are.

[00:37:09] Speaker 02:
But going to the first set of Judge Piazza's questions, if we agree that the nature of the dismissal was wrong, And if we were to agree that it appears that you have standing at this stage, we would send it back. You could amend your complaint if you wanted to, and you could conduct discovery, and you could look at the nature of the threat. And if you wanted to, you could retry it, or you could seek an injunction either from the start or after discovery.

[00:37:44] Speaker 01:
That's absolutely correct. I know how fun it was to get to the First Amendment, but this case hasn't got there yet. And so remanding it would allow us to get to that issue. All right.

[00:37:56] Speaker 02:
Thank you. We thank counsel for their arguments. The case just argued is submitted and 10 minutes.

[00:38:01] Speaker 01:
Yeah, we'll take a 10 minute break.