thank you on good morning my name is pam snyder barnes i am a lawyer with the state of montana and i'm representing heather smith she is the the appellant obviously and the defendant below this case arises from a preliminary parole revocation hearing not a final one the fact that the hearing was preliminary not final matters in morsi versus brewer the supreme court said not all situations calling for procedural safeguards call for the same procedure preliminary and final parole revocation hearings are not the same in montana heather smith is entitled to qualified immunity because she didn't violate clearly established law with respect to mr marble right to procedural due process at his preliminary hearing back in september of two thousand and eleven but any discussion about qualified immunity only comes into play if the court determines smith is not entitle to absolute qu immunity which she is smith was a senior parole officer functioning as a hearing officer she performed a function like that of a judge in a case that excited strong feelings because one of the lid lit liberty was at stake mr marbles how was the decision not to notify witnesses of the time and date of the hearing the function of a judge well even if you consider that preliminary to the hearing and i really can't say how can you be sure that there was no harm suffered he didn't get it in morrissey gives us a minimum he's entitled to have a hearing is entitle to present his side in front of an un and volved decision maker he didn't get to present his side because the people weren't there he thought they were going to be there but they weren't so how can we be sure there was no harm suffered well your honor even morsi said that pro education proceedings are informal this hearing was probably what class formality had to do with it either either the witnesses knew when they were supposed to come or they didn't and if they didn't the formality of the hearing really doesn't matter does it and that's what i've honed in on that the failure to give notice i don't see that as a judicial function so i have difficulty with your quads i am unity argument and it doesn't seem to me like a hard concept of morsi says you're entitled to a hearing and the witnesses don't know where to go to for the hearing in or a piece missing here do you think mr marble was never prohibited or prevented a all from notifying his own witnesses but you can call people from the jail secondly with respect to the reason just to expect that that your clients for a lawful cers probation officers would give that notice because that's what the state regulation seems to say certainly your honor the state took on the obligation to assist the parolee with contacting witnesses if he was in custody but the fact is this was a probable cause hearing if the hearing officer was able to find probable cause without the witnesses which she did based on the libel documentary that means you only have to hear from the prosecutor's case you only have to have enough and the defendant doesn't have to be given a chance to speak morsi tells us something different morrissey tells us that the person in this case and mr marble situation has a right to put his side of the story up to do so the question isn't whether there is sufficient evidence the question here is whether mr marble's been given the opportunity that morsi tells him he's supposed to have  says that it's a narrow inquiry at a preliminary revocation hearing it's a due process inquiry and the process should be flexible enough to consider evidence including letters affidavits you're messing with you're missing my point i'm not contesting whether there was sufficient evidence i'm saying morrissey requires an opportunity to be heard and in this case marple didn't have the opportunity to be heard because the witnesses didn't know where they were supposed to go you can have all the evidence in the world that establishes from a from the probation office point of view prosecution point of view that he committed an offense  probation should be revoked but that doesn't mean the defendant doesn't have a shot at his side of the case and there's no sign here the defendant had the hearing that morsi says he's supposed to have is there i would  agree respectfully your honor the police report that ms smith relied upon was and she relied upon it not really for the substance of the information in it but simply for the fact that the officer who had purpose of showing that he had decided based upon what he had learned about the situation to charge mr marble with two misdemeanor offenses that was probable cause that mr marvel of violating a parole condition which was i shall comply with all federal  state local laws last time i oppose it but it seems to me you're not answering the right question you're answering the question of whether there was probable cause i'm not asking that question i can see there was probable cause i'm asking the question how is is marvel's rights under morsi been satisfied here if there isn't a hearing where he has an opportunity to present his side of the case you might well have lost no question about it but morrissey says you got an opportunity for a hearing and that seems to be a due process violation separate and apart from the question of whether probation was properly revoked so i could place last time but it seems to me you're not answering the question i'm trying to pose which leads me to infer there's not an answer to the question i'm trying to impose well your honor i would say that i agree obviously the issue is whether mr marble received due process at this preliminary informal hearing at which the rules of evidence do not apply the hearing officer relied on reliable hearsay evidence was or hearing it all ye more difficult problem even with with regard to the adverse witness was done with her have to be some good cause determination before her presence could be excused well your honor under u walker the circuit has found that the reliability of documentary evidence can constitute good cause and while ms talks that morsi i reckon didn't didn't that didn't hearing officer wasn't wasn't the hearing officer required to cause balance well that's the whole issue your honor with respect to clearly establish law smith concedes that under the necessity to engage in camino balancing attaches at final revocation hearings but there is no law that says that it does a preliminary hearings and in fact the district court below in talking about clearly established law defined it too general a level by saying that by citing valve for the fact that comito balancing must be conducted at final revocation hearings he went on to say and smith didn't put on any or show any authority to the fact that this does not apply equally to preliminary hearings and he did that in error because the burden was on mr marble to show that the law was clearly established there is no law out there saying that comito balancing is required in eliminate revocation hearings you want to save the rest of your time i would please thank you exception to the hopes and doctrine my co counsel argue that she's not entitled to qualified immunity and we plan to split our time equally because melissa marble with an incarcerated parolee marbles parole officer was tasked on resulting in five months of his incarceration this court should affirm the district court's opinion for the following reasons first the challenge conduct at issue is this failure to discharge her duty to procure marbles witnesses not her education of his case she didn't have a duty to secure the witnesses the witnesses were obligated to come or that no your honor but she had a duty to contact the witnesses and the district court found that her efforts to do so were insufficient and that a reasonable jury could conclude that  's rights were violated by her failure to procure these witnesses the district court currently held that smith's title as a hearing officer is not dispositive she can only enjoy absolute immunity if this discrete role is functionally comparable to that of a  wouldn't it wouldn't be appropriate for hearings off to say look she's suffered enough she doesn't want to be in proximity with the person that she is afraid of and so i wouldn't enforce a subpoena i'm not going to press the issue on her your honor my co counsel address this issue further but it is our position that even if that were true none of that occurred in this case there were no findings made and she didn't make any factual determinations either to any good cause balancing well no findings but i mean that's that strikes me is the kind of judgment a judge would make so why isn't that something that she would be it's not purely administrative at that level why would she be eligible for judicial immunity for that decision we argue that this is a non judicial task because montana delegates it to the parole officer the first instance so as a hearing officer she would not subpoena according to the montana law it seems that the parole officer would be the person in charge of contacting these witnesses but you just told me that she was performing the function of the roll officer yes your honor so it would be her one yes but the decision of whether or not to issue a and then the judge has to decide what if anything to do about it or the judge made you know in a larger context this is more informal a judge would be the one to decide whether to enforce a subpoena or whether to grant a motion to quash and if i'm there representing the victim i say she doesn't want to be there that's the kind of question that would be put in front of a judge yes your honor but that didn't happen in this case the only efforts that she made in this case were to call her whether or not she would be entitled to cause a judicial immunity i had issued and there was an issue of enforcement is it is different because she didn't perform any of the duties that she was entrusted with this case is similar to switch with where this court held that parole officers when they investigate parole violations execute par case here the conduct was not on predictable it occurs at a specific point in the process which is when she failed to contact his witnesses provision process is not impossible because it put him in a preliminary hearing like the preseason hearing in zimmerman is exactly the kind of district court found defendants mr not be afforded qualified immunity because she intentionally deprived mr marble of these fundamental due process rights the circuit has repeatedly affirmed the basic principles of morrissey and montana lawmakers specifically implemented morsi by creating the state rules and regulations that defendant smith ignored in this case officer smith was plainly on notice of these rights when she violated them and because of her violations mr marble spent five months in jail so you're saying that the clearly establish law in this case is the montana law and regulations is that right not exactly your honor the clearly established law in this case is morsi versus brewer however the state law reinforces and reflects the requirements of morsi and implements them in a state procedures in the parole procedures as well the reason i ask is because the supreme court has hit this court over the head and other courts over the head with that qualified immunity malate and i just recently did so in that case of white versus party which we asked the parties to brief so that reminding us not to look at a generality has to be specific as you know after read you guys brief on this so can you articulate to us just white versus party that's ringing in my ears at least why under white versus party should qualify the need be denied yes your honor will white vs poly the not change is standard for qualified immunity it merely reiterated the longstanding principle that qualified immunity should not be established at a general level but particularly as to the facts of the case also white concerned the difficult line between excessive and reasonable force and the law was not clearly established in that case because the petitioner relied on cases that the supreme court had previously acknowledge art only lay out general the general principles of excessive force which are insufficient for clearly as blish law in contrast this case lays out clear and explicit due process principles which every officer in smith's position is obliged to follow decades of case law and montana's rules and regulations make it clear that mr marbles entitled to have witnesses it is hearing and to examine his accusers these are not general principles he denied the opportunity to cross examine whoever was there no your honor can you point me to anything that says specifically that the state is obligated to make sure that witnesses do appear well yes your honor state law requires that if a parolee is being detained pending that hearing that the parole officer shall contact the witnesses that's that's one step short that may have to do with contact this is say anything about the state is obligated to make the witnesses appear regarding adverse witnesses yes your honor the state any witnesses advert for regarding adverse witnesses they're required to make the witnesses available at the hearing they're even given or given subpoena power by the state to do so regarding the evidence your witnesses the officers responsibility is limited to notifying them at the time of the place of the hearing which officer smith did not do in this case before two of the witnesses she attempted to call and spoke to one of them and did not notify them of the time in place of the hearing or that their presence was necessary the only eyewitness to the disputed out when it is i don't know the facts will be focused in the few seconds you have left on the law you've cited the tanah regulations first is there any case law or precedent that supports the notion that these state regulations have themselves become income  corporator within the requirements of due process yes your honor well this court held in a drum and verse city of anaheim that state laws regulations and training may be relevant to whether him provided with adequate notice of their constitutional obligations the standard operating procedures even cites morsi as a source of authority so there is no doubt of what an officer must do or where it's coming from to ensure that these procedures are met journey authorit speaks to a state that doesn't have this kind of regulation that says the due process requires notification of time in place to the witnesses and your case hang on acceptance of the regulations as part of the due process requirement i'm not aware of any case authority that says that so it seems to me your case does hang on the exceptions of montana regulations as part of due process requirement while you're on our state rely more super springs enough to clearly establish argument essentially means that i'm your allegation is not enough would be enough to send someone back to jail and every reasonable officer would know that that has never been the law in this country the scorch of a from the district court and deny position of qualified immunity thank you thank you thank you your honor and i would follow up on what judge don't trust me well i am in answering the question from the court as to whether the whether state law can form the basis of clearly established law it's clear that it cannot in this case because in order to do that it has to the statutes or regulations have to include substantive predicates that pretty much dictate an outcome if there are met here these statutes and administrative rules pretty much mirror morsi they're procedural in the dark if in fact you've got the morrissey in the other decisions to set the general standard at these regulations aimed at implementing it how is it the parole officer is is legitimately ignorant and qualified i about what the officer should fairly understanding of the regulations as do x what's not to understand about doing  and it was to find probable cause and she found it she took on the responsibility of officer pool pools role was to contact the witnesses and i don't know but the pool didn't do that smith did so i understand that she had a hearing officer capacity but she also seemed to be doing cool job and that job didn't get done unfortunately there's on site a bull authority in the circuit a two thousand and five case in which pre hearing conduct by hearing officer was thrown into the mix it was considered part of her role in conducting that hearing and she was given absolute immunity but you can construe it either as adjudicative part of her role as the hearing officer or you can construe it as pre hearing ministerial conduct it really doesn't matter because causation cannot be established thank you very much counsel this matter is thank you both sides for your arguments good job and both sides