[00:00:00] Speaker 00:
Sanchez versus Gallagher.

[00:00:01] Speaker 00:
It is docket 25-2072.

[00:00:03] Speaker 00:
Counsel, please proceed.

[00:00:07] Speaker 01:
Good morning, Your Honors.

[00:00:09] Speaker 00:
Good morning.

[00:00:09] Speaker 01:
May it please the court.

[00:00:11] Speaker 01:
My name is John Lynn Martinez, and I represent the appellants in this case, Mr. Gallagher and Eddie County.

[00:00:19] Speaker 01:
This case is about Eddie County's attempts to return to normal following the lifting of social distancing restrictions in the state of New Mexico.

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On about April 9th of 2020, Eddy County created a public comment form that was made available before each commission meeting through a link on the commission's webpage.

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And the purpose of this was because of the state of New Mexico's social distancing restrictions.

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In January of 2025, Defendant Gallagher became the Eddy County manager.

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He determined that because the

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Health orders related to social distancing under COVID had been rescinded.

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The online public comment form was no longer needed.

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Therefore, on February 7th, 2025, he directed his staff to remove the public comment form from the county's website.

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That same day, Andrew Medrano, the county's IT department employee, removed the form and the link from the county commission's webpage.

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This litigation has resulted from the IT department's failure to properly implement the directive given by defendant Gallagher on February 7th, 2025.

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18 days after Mr. Gallagher's decision to end the use of the public comment forms, the plaintiff accessed the public comment form through an old social media link and was able to submit a public comment to be read at the next meeting, which was scheduled for March 4th, 2025.

[00:01:55] Speaker 01:
And he received confirmation that it would be read, right?

[00:01:58] Speaker 01:
Yes, Your Honor.

[00:02:00] Speaker 01:
In fact, that was an automatic response that was generated for every comment submitted.

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So it was auto-generated.

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It wasn't generated by anybody with knowledge or information.

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It was an auto-generated response.

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The following day, Mr. Medrano, having learned that someone was able to find the link, completely removed the public comment form from the county's website.

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The defendant submit that plaintiff was aware

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that the link had been removed as of March 3rd.

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And in his complaint and in response to the defendant's motion for summary judgment, he acknowledges that he reattempted to submit his comments, noticed that the link had been disabled, and was aware that the county was not accepting links as of the day prior to this scheduled meeting.

[00:02:49] Speaker 01:
On March 4th, 2025, the commission held its scheduled meeting but did not read the plaintiff's comment.

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In fact the last public comment read at a County Commission meeting was submitted on February 5th 2025 two days before the county manager determined that These comment forms would no longer be used and it was read at the Commission meeting held on February 18th 2025 and these are facts as determined by the district court the

[00:03:23] Speaker 01:
Defendants believe that the court improperly decided the qualified immunity issue as brought by defendant Gallagher because the court found that the right was clearly established at the time of the challenge conduct.

[00:03:40] Speaker 03:
So we have a pending motion to dismiss this appeal for lack of jurisdiction.

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And in your response, you say that you're not challenging.

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You're not challenging the facts.

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You're challenging just the clearly established law prong.

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Is that correct?

[00:03:54] Speaker 03:
Correct.

[00:03:55] Speaker 03:
OK.

[00:03:55] Speaker 03:
So going into the clearly established law prong, we are taking the facts as found by the district court, right?

[00:04:02] Speaker 01:
That's correct, Your Honor.

[00:04:03] Speaker 03:
Is one of those facts that the board meeting was a limited public forum?

[00:04:11] Speaker 01:
That was a conclusion of law that the court made, Your Honor, when she did the analysis on the first prong of the qualified immunity analysis.

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She made a finding that the forum was a limited public forum, which simply requires reasonable scrutiny of the defendant's actions.

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But as to the second prong of the qualified immunity analysis, the cases cited by the court were all cases, or determined by the court to place the issue beyond debate, were all cases in which the plaintiff was not permitted to speak at all, and in this case,

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The plaintiff was permitted to come to the commission meeting and make any statements he wanted in public, which was the county's efforts to return back to normal operations.

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So we no longer accept public comments online, but you are permitted now that social distancing restrictions are lifted to come to the commission meeting in person and make those statements.

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So in all the cases cited, by both the plaintiff and the court, the plaintiffs were not permitted to speak at all.

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In this case,

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We would no longer accept public comments online, but anyone can come to the commission meeting and make their public comments at the beginning of each commission meeting.

[00:05:26] Speaker 01:
I thought that the district... Sorry, Judge McHugh, go ahead.

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Here the district court held that a reasonable jury could find that the board allowed members of the public to submit comments electronically even after February 7, 2025, but that Mr. Gallagher declined to read Mr. Sanchez's comment at the board meeting

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because of the viewpoint he expressed.

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Don't you have to accept that in terms of arguing you're clearly established wrong?

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I don't believe that was one of the facts that she found, Your Honor.

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In looking at the court's facts.

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I think that's a quote from the district court's decision.

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Your Honor, I believe what the court found was that

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that there was a dispute as to whether or not a reasonable jury could infer that there was viewpoint discrimination based on?

[00:06:26] Speaker 02:
Right.

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And because it's a genuinely disputed material fact, what the district court said is a reasonable jury could find for the plaintiff on that.

[00:06:38] Speaker 01:
Correct, Your Honor.

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So don't you, my question to you is, don't we start from there in looking at the clearly established

[00:06:47] Speaker 01:
I don't believe so, Your Honor, because I think we have to look at the law as it was when Defendant Gallagher was making his determination.

[00:06:54] Speaker 02:
Well, I'm not looking at the law.

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I'm looking at the material issue of disputed fact that the district court identified and said a reasonable jury could find.

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That's step one.

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Don't you have to take that into your analysis under step two, clearly established,

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and tell me that it wasn't clearly established that you can't restrict viewpoint at the public meeting?

[00:07:23] Speaker 01:
Well, Your Honor, I think that the court needs to focus on whether or not the law was clearly established at the time my client made his decision.

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And that does not include, first of all, the cases that the court cites, again, prohibit a plaintiff from speaking.

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In this case, the plaintiff could speak.

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And the court does find that,

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Although the plaintiff was able to submit his request, the court in her findings of fact notes that the link was removed from the court, from the website, and was also removed from the Facebook link.

[00:08:02] Speaker 03:
All of this seems to go to a factual question, which is what Mr. Gallagher's motive was.

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If there's a disputed issue, if it's a jury question on whether

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He acted with an improper motive.

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And we go into the clearly established law analysis with that understanding that he may have acted with an improper motive.

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Why isn't the law clearly established?

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Why isn't there a First Amendment right to be free from viewpoint discrimination in this meeting?

[00:08:35] Speaker 01:
There was no viewpoint discrimination.

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There was no comment read following the decision of February 7, 2025.

[00:08:42] Speaker 03:
But I thought the district courts found a jury question on why the comment wasn't read, that the comment wasn't read, that the inference that she thought the jury could draw from the fact was that it wasn't read because of viewpoint discrimination.

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And we have to assume that that is, that those are the four corners of the facts in the case.

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We don't have jurisdiction to revisit them.

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And the only question before us is whether, so understood, the law is clearly established to support that constitutional violation.

[00:09:14] Speaker 01:
Well, Your Honor, I believe that this case, this court's holdings in both

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a state of Valverde versus Dodge and Medina versus Creme.

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Even when the district court concludes that issues of material fact exist, this court has reviewed the legal question of whether a defendant's conduct as alleged violates clearly established law.

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And the court's finding that a reasonable jury could conclude that

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there was viewpoint discrimination, I believe, is really a finding of, is really a legal determination.

[00:10:08] Speaker 01:
And that's consistent with Medina versus Crum, in which the court found that there were no disputes of fact, but the court ultimately found that the reasonableness of the officer's actions may have violated the law.

[00:10:22] Speaker 00:
What if the jury did find viewpoint discrimination?

[00:10:26] Speaker 00:
Then where would you be?

[00:10:28] Speaker 01:
If the jury found that there was viewpoint discrimination in making the determination not to read?

[00:10:34] Speaker 01:
Well, Your Honor, if the jury found that there was viewpoint discrimination and not, then I suppose then it would fall under the case law that the court cited because viewpoint discrimination is a violation of the First Amendment.

[00:10:50] Speaker 00:
So that would be the end of the prong to discussion.

[00:10:54] Speaker 01:
It would be the end of the prong to discussion, Your Honor.

[00:10:59] Speaker 01:
What my client needs to look at when he's making his decision is whether the case is cited by the court or whether there was clearly established law.

[00:11:07] Speaker 02:
And I think... Well, Mesa versus White makes it clearly established, right?

[00:11:12] Speaker 01:
Well, Your Honor, I think that that's an excellent point.

[00:11:15] Speaker 01:
Mesa versus White found that number one, in the first prong, there was protected speech, and the court in this case found that there was protected speech.

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We concur that what Mr. Sanchez wanted to say would be protected speech.

[00:11:31] Speaker 01:
But two, the court found that this was a limited public forum.

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So reasonableness applies.

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And the content neutral time, place, manner restrictions are permissible if they're narrowly drawn to achieve a significant governmental interest.

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In this case, the governmental interest was to return to normal operation.

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And the third part.

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But the district court found, and you say they didn't.

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I'm going to read you from the district court's decision.

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Viewing the evidence and drawing reasonable inferences in plaintiff's favor, a reasonable jury could conclude that Gallagher refused to read plaintiff's comment at the March 4th, 2025 board meeting because of, and she's underlined because of, the viewpoints expressed therein.

[00:12:13] Speaker 02:
Stated differently, a reasonable jury could conclude that Gallagher's viewpoint neutral explanation, the COVID restrictions,

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for not reading plaintiff's comment at the March 4th, 2025 board meeting is pretext for viewpoint discrimination.

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Those aren't legal conclusions.

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Those are the district court's assessment of what a reasonable jury could find under the facts that were presented.

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If the jury found those facts, the law is clearly established, right?

[00:12:47] Speaker 01:
If the jury would, well, Your Honor, I think if the notice that my client had based on the clearly established law is that if he didn't, if Mr. Sanchez had the ability to come and speak, which he did, we didn't preclude him from speaking.

[00:13:04] Speaker 01:
We just precluded any submission of online public comments.

[00:13:09] Speaker 03:
Do you agree that the board meeting is a limited public forum?

[00:13:15] Speaker 01:
Yes.

[00:13:16] Speaker 03:
OK.

[00:13:17] Speaker 01:
And we also, based on Mesa, if they allow communication through other channels, which is the holding in Mesa and which is also the holding in Shiro, then there's no violation of the law.

[00:13:28] Speaker 01:
And in this case, we did allow for comments.

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They were simply in person.

[00:13:33] Speaker 02:
But he was told his statement would be read, so there was no reason for him to show up.

[00:13:39] Speaker 02:
Now, you say that was an automatic

[00:13:42] Speaker 02:
You know, notice he got, but he doesn't know that.

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He gets a notice saying, your comments will be read.

[00:13:47] Speaker 01:
Well, as is contained in the course record under finding a fact, the day prior to the commission meeting, he had noticed that they were no longer accepting public comments.

[00:13:56] Speaker 01:
So he was aware prior to the meeting that public comments would no longer be accepted.

[00:14:01] Speaker 02:
But his had already been accepted.

[00:14:03] Speaker 01:
Well, his had already been submitted and automatically accepted, but the decision not to read public comments was made 18 days before he ever submitted a public comment.

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And the district court said a reasonable jury could find that the reason they did not read his was viewpoint discrimination and the other arguments made for why it wasn't read, a reasonable jury could conclude fine or pretextual.

[00:14:30] Speaker 01:
And Your Honor, the cases cited by both the court and the plaintiff stand for the proposition that neutral restrictions are permissible provided they have other avenues of communication.

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And he complied with the law as it existed.

[00:14:47] Speaker 01:
And I reserve my 13 seconds here.

[00:14:49] Speaker 00:
Thank you.

[00:14:53] Speaker 04:
Good morning, everybody.

[00:14:55] Speaker 04:
So we have two minutes left for morning.

[00:14:57] Speaker 04:
Ben Gubernick, appearing for Plaintiff Appellee Jason Sanchez.

[00:15:01] Speaker 04:
May I please court?

[00:15:03] Speaker 04:
Okay, just a few things here.

[00:15:06] Speaker 04:
Maybe just as a starting point, my opponent said that the standard here is one of reasonableness.

[00:15:12] Speaker 04:
That's not true.

[00:15:13] Speaker 04:
This is viewpoint discrimination.

[00:15:16] Speaker 04:
Subject that is an egregious form of content discrimination as the Supreme Court in this court repeatedly held and it is subject to a standard above strict scrutiny.

[00:15:25] Speaker 04:
I don't even I

[00:15:28] Speaker 03:
Well, doesn't it depend on the forum?

[00:15:30] Speaker 03:
So I think that your friend on the other side has agreed that this is or should be understood as a limited public forum.

[00:15:39] Speaker 03:
Do you agree with that?

[00:15:40] Speaker 04:
I do agree.

[00:15:41] Speaker 03:
And so the cases that understand what sorts of levels of scrutiny apply would be the limited public forum cases?

[00:15:50] Speaker 04:
Those would be exactly, because it's viewpoint discrimination.

[00:15:53] Speaker 04:
No one's saying that this was actually something that this court

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stated in Mesa v. White.

[00:16:00] Speaker 04:
No one's saying the county commission has to read public comments or has to let people present public comments or anything like that.

[00:16:09] Speaker 04:
The court says, hey, look, they don't have to do it, but they've decided to do it.

[00:16:13] Speaker 04:
They've opened this place for public comments that meet certain reasonable time, place, and manner restrictions.

[00:16:20] Speaker 04:
Once you do that, things that clear those thresholds, you can't decide not to read them because you don't agree with their viewpoints.

[00:16:29] Speaker 04:
That is the thing that triggers above strict scrutiny, essentially impossible to clear, would put any reasonable official on notice that they're violating someone's rights.

[00:16:40] Speaker 04:
I mean, there's no Jason Sanchez exception to the First Amendment.

[00:16:47] Speaker 04:
No reasonable person anywhere would think there is.

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There's no complicated, the court mentioned earlier, Fourth Amendment cases that are often somewhat fact-bound and at least you can put yourself in the mind of the officer and see how reasonable minds maybe possibly somehow could disagree on constitutionality.

[00:17:05] Speaker 04:
That's not present here.

[00:17:06] Speaker 04:
This is viewpoint discrimination.

[00:17:07] Speaker 04:
This is as, it is a hard and fast rule because that's what it is.

[00:17:14] Speaker 03:
Well, I think where I'm struggling a little bit is being mindful of how we have to not

[00:17:20] Speaker 03:
be too general when we're looking at clearly established law and define it not at too high a level of generality.

[00:17:27] Speaker 03:
You know, the district court here said that it really doesn't matter what kind of forum we have.

[00:17:32] Speaker 03:
We have some, you know, unclear law that appears in our circuit about whether a board meeting is a limited public forum or a designated public forum, and she says it doesn't matter because viewpoint discrimination violates the First Amendment in any forum.

[00:17:45] Speaker 03:
That feels not

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wrong exactly but is it precise enough for us to be able to then say the law here is clearly established if we don't have a case or do we have a case that says in a limited board meeting is a limited public forum number one number two in that kind of a forum doing the sort of thing that happened here which is not reading because of not allowing speech because of viewpoint discrimination equals First Amendment violation.

[00:18:15] Speaker 03:
What would be that case?

[00:18:17] Speaker 04:
The court cited several cases from the Supreme Court that just said generally viewpoint discrimination is an egregious form of content-based discrimination.

[00:18:27] Speaker 04:
There's no limiter on that because the principal doesn't have any limits to it.

[00:18:33] Speaker 04:
I can't find one case anywhere in the country where a federal court has said viewpoint discrimination in this specific type of forum is permissible.

[00:18:43] Speaker 04:
This wasn't government speech.

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This wasn't anything where

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where an exception to that could even possibly, because there is no exception to it.

[00:18:51] Speaker 04:
It is a hard and fast rule.

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This case comes down to what's going on in Gallagher's brain.

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And everyone acknowledges he had this comment.

[00:19:00] Speaker 04:
He decided not to read it.

[00:19:01] Speaker 04:
He said, I didn't think it was appropriate.

[00:19:04] Speaker 04:
OK, well, why doesn't he think it's appropriate?

[00:19:06] Speaker 04:
If you accept, as plaintiff alleged and as the district court

[00:19:11] Speaker 04:
said a reasonable jury could infer, he decided it wasn't appropriate because it was critical of any county law enforcement.

[00:19:17] Speaker 04:
And you don't want people to hear that.

[00:19:19] Speaker 04:
That is a violation of Jason Sanchez's constitutional rights.

[00:19:23] Speaker 04:
There's just no way to get around that.

[00:19:25] Speaker 04:
To the extent this court has not previously said that viewpoint discrimination in any form is unconstitutional, absent clearing is higher than strict scrutiny,

[00:19:40] Speaker 04:
I would invite the court to make that holding now.

[00:19:42] Speaker 04:
I believe other circuits certainly have, and I think that's consistent with Supreme Court precedents.

[00:19:49] Speaker 04:
If you phrase the question as, we were allowed to discriminate against Jason Sanchez based on his viewpoint because X, and you try to think of anything that you can substitute X with that would pass constitutional muster, there's nothing.

[00:20:04] Speaker 03:
So what are the cases that, if we're writing this in your favor, are we citing to say the law is clearly established?

[00:20:11] Speaker 04:
I don't think the court really has to go much further than just Mesa v. White on that, because that deals with the county commission setting even.

[00:20:19] Speaker 04:
The only thing that the defense can argue here would be, well, actually, they don't argue, and they still, even today, have not contested the court's finding that this was a limited public forum.

[00:20:31] Speaker 03:
Because it may say it was not litigated, it was stipulated.

[00:20:35] Speaker 03:
Does that matter?

[00:20:35] Speaker 03:
Does that make a difference?

[00:20:37] Speaker 03:
It seems it's the same here.

[00:20:38] Speaker 04:
It's the same here, and the appellant concedes the fact.

[00:20:42] Speaker 04:
No one's challenging that.

[00:20:43] Speaker 04:
Their only argument is that the contours of the right were not sufficiently established because we didn't do it.

[00:20:52] Speaker 04:
That is a factual disagreement.

[00:20:54] Speaker 02:
That is a... Well, they also argue that we have to look at it at the granularity of

[00:21:01] Speaker 02:
whether the law had to be clearly established that in repealing a COVID area rule, you could deny someone a right to submit a written comment.

[00:21:17] Speaker 02:
I mean, that's an argument they make.

[00:21:19] Speaker 04:
It's there.

[00:21:19] Speaker 04:
I mean, I think that that is most of their brief is based on that.

[00:21:24] Speaker 04:
The problem is it's a total red herring.

[00:21:27] Speaker 04:
What it boils down to saying is we had a viewpoint neutral or consent neutral, whatever terminology you want to use, reason for not reading this thing.

[00:21:35] Speaker 04:
Therefore, the law is not clearly established.

[00:21:37] Speaker 04:
That's the we didn't do it defense.

[00:21:39] Speaker 04:
The trial court found that that's just that could.

[00:21:43] Speaker 04:
A reasonable jury, we're not saying that a jury is going to do this, but a reasonable jury could find that that's pretext.

[00:21:49] Speaker 04:
That no, the only reason, the causal connection was between

[00:21:54] Speaker 04:
viewpoint that this comment expressed, that's why you didn't read it.

[00:21:57] Speaker 03:
Isn't that sort of the theme of your motion to dismiss?

[00:22:00] Speaker 03:
I mean, if we redefine the constitutional right at issue by fighting the facts, then we don't even get to clearly establish?

[00:22:10] Speaker 04:
Well, yeah.

[00:22:10] Speaker 04:
I mean, that's exactly right.

[00:22:12] Speaker 04:
The only instance where this court is permitted to, on interlocutory appeal,

[00:22:18] Speaker 04:
is sort of Monday morning quarterback, the district court's factual inferences would be if they're blatantly contradicted by the record.

[00:22:24] Speaker 04:
And none of these are.

[00:22:25] Speaker 04:
The order is exhaustive.

[00:22:27] Speaker 04:
It explains the inferences that the judge is drawing.

[00:22:31] Speaker 04:
It explains why she's drawing them.

[00:22:34] Speaker 04:
Most of them are strikingly similar to the set of inferences that supported

[00:22:39] Speaker 04:
I mean, there just isn't much to work with here, right?

[00:22:45] Speaker 04:
So, yeah, I mean, the only thing we have left then, if there's no forum and there's no ability to contest the facts here or the factual inferences here is, was it clearly established?

[00:22:56] Speaker 02:
Which we do have jurisdiction over, right?

[00:22:58] Speaker 04:
Absolutely.

[00:22:59] Speaker 04:
The court, the one question the court has jurisdiction over was, is it clearly established

[00:23:03] Speaker 04:
that in a limited public forum viewpoint-based discrimination is constitutionally impermissible.

[00:23:09] Speaker 04:
That's the sole question.

[00:23:11] Speaker 04:
I think the reason we filed a motion to dismiss is that's not a question they raise in their appeal.

[00:23:16] Speaker 04:
Their appeal is based solely on is there some sort of general abstract right to submitting comments online.

[00:23:22] Speaker 04:
It makes no difference whether Mr. Sanchez's comment was mailed, submitted using online form, hand-delivered, passenger pigeon.

[00:23:31] Speaker 04:
It doesn't matter.

[00:23:33] Speaker 04:
Well, the only thing that matters here is Gallagher has a comment in front of him.

[00:23:37] Speaker 04:
He's trying to decide whether or not to read it and decides, I'm going to pass on this one.

[00:23:44] Speaker 04:
And they say, hey, that had nothing to do with the Viewpoint Express.

[00:23:47] Speaker 04:
He would have done that regardless of what was in there.

[00:23:50] Speaker 04:
But a reasonable jury could find that, no, you were looking for or decided afterwards to try to come up with an explanation for why you decided this comment was unworthy of being read at the meeting and that was viewpoint.

[00:24:03] Speaker 04:
So unless the court has any other questions, I'm happy to rest on the brief.

[00:24:10] Speaker 04:
Thank you, counsel.

[00:24:14] Speaker 01:
Well, again, the defendants believe

[00:24:19] Speaker 01:
The law was not clearly established as to this issue.

[00:24:22] Speaker 01:
And Mesa versus White is the perfect case.

[00:24:25] Speaker 01:
The restrictions placed on Mr. Sanchez were content neutral.

[00:24:30] Speaker 01:
And he was given another way in which to make his comments.

[00:24:34] Speaker 01:
That's what the law said.

[00:24:35] Speaker 01:
That's what was followed at the time the decision was made.

[00:24:39] Speaker 01:
And therefore, we believe that the law was not clearly established at the time.

[00:24:46] Speaker 01:
The cases cited by both the plaintiff and the court don't support the findings, and we believe that reversal is appropriate.

[00:24:54] Speaker 00:
Thank you, counsel.

[00:24:55] Speaker 01:
Thank you.

[00:24:56] Speaker 00:
The case is submitted.

[00:24:57] Speaker 00:
Counselor excused.