before jailing misty again for twelve days for failing to pay a fine the city of mcdonald's municipal court and its chief judge patton made no finding as required by the supreme court and bearden v georgia  to pay if that had been well pull this year before this court is whether the city can be held liable for this and other violations of mr ganns constitutional right georgia law empowers municipalities such as mcdon adjudication of the state offense they stem from the policies and practices of the municipal court which applied equally to individuals charged with state traffic offenses and missed municipal events i mean in terms of the underlying violation i think you're exactly right in my in my personal opinion that the function of the court doesn't affect the violation but my question was directed more toward the first issue you presented and that is whether or not the municipal court and its judges are acting as arms of the state when they are enforcing misdemeanor statutes as opposed to municipal court the new dish will power to handle things like misdemeanors which are state offenses the general assembly or honor then doesn't that at least cut against your argument that the municipal court is to actions that are taken under the authority of the state law and not the city and my reasoning is that the uniform rue that the judge supreme kohut promulgates and not binding on the municipal court provide for all of the hearings and rights and so forth that that you complain about for example route twenty eight point one requires that they have that hearing within seventy two hours that you complain about so it seems to me all of the claims obviously but the ones in the very beginning advising about right of the to have a lawyer and wave of their of but also the ones  rights that stemmed from these policies because there was no decision for them to for her to appeal we complained that she didn't receive the puritan hearing she was entitled to so she couldn't appeal there was no finding that it was sprinkle it approves it not right that is right your honor but mistaken could not of realistically appealed because she didn't have the hearing you refer to it was after she had been imprisoned for ten days and it wasn't a hearing as much as it was the judge just telling her why he had taken the actions that he had taken your point is well taken that the municipal court rules do provide for specific things but i would also call your attention to municipal court rule one point two authority to enact rules which deviate from the uniform rules and this provides that you know support court judges or in a circuit like this the chief judge could propose rules that deviate from these rules and while those would be subject to supreme court approval it also provides that they could create internal court procedures and that while those were supposed to be filed with the supreme court those are not subject to the supreme court's rules it would be i parks clerk of the criminal court responsible for the performance of magistrate judge is just because the clerk appointed them that that would make that would make the clerk remove him at any time for any reason and the stevens harms aren't stemming from individual judicial decisions this judge made every friday the clerk and the clerk let's that's not completely right because your complain argues that at the end of the day despite all the other and there are a lot of really bad things that happened here my opinion of one of the last bad things you complain about is that the judge cen prison for allegedly nonpayment of the fine without inquiring about why she didn't pay or willful this or anything like that yes that's an individual decision made by that judge wright it has to be no your honor not the way that it was carried out in the mcdonough municipal court the warrant was prepared by a court employee she prepared five of them that day but that the warrant just gets you arrested and i'm not saying the warrant was correct i'm just but what it does is get you arrested and thrown into jail after that after that she waited the ten days more than she should have to come before the judge the judge then decides what to do about the nonpayment of a fine and he decides to tell her you're going to serve the remainder of your court they've created a situation where all these things can be remedied all these miscues in the supreme court which basically violate constitutional right can be remedied and the state s was an independent judicial decision her harm happened as soon as she was arrested before even having that hearing it was the dhamaal of the predawn probation proceeding before her us my point was not about all of that my point was about the last decision you complain about which was to put her in jail for what you say is a nonexistent offense the nonpayment of a fine yes or no my only point is that has to be a judicial decision of some kind you think it's illegitimate but it's a judicial decision yes your honor i  court harvey gray on behalf of the city of mcdonogh i have a mentor a spec for mystery more and better less name i'm sorry i know they feel passionately about this case but the rule of law that they're advocating runs counter to everything we know about the way courts function the way appellate lawyers you if you want to talk you may be right at the end of the day but if you want to talk about the rule of law there's a lot of bad distinguished colleagues right but if what the judge in this case had done was for a violation of a municipal ordinance and not for a state misdemeanor violation i think you'd be in serious trouble legally because i think there'd be grounds to say that the municipal court judge acting in that capacity is not a state actor because he's doing only what demeans a pallet he authorizes him to do her that the judge just sort of like a loose cannon with authority to be a loose cannon i suppose like any employee you off on a lark your point is well taken judge this case does not involve an ordinance that involves a state mr mean or offense for which this judge's legal authority derives directly from the state it does not derive from the municipality and the municipality has no opportunity to control this case they pay far him in the future there may be other cases that come in the future that address this issue this is not a class action this is one person's case as a practical matter all the allegations are not that it's one person's case the allegations are again they may not legally succeed for the reasons you identified but the allegations are that this is part and parcel of what happens with every single municipal court judge there every single week day in day out year in year out well and those allegations were not disputed by the city of mcdonough so that's a bad state of affairs you may win at the end of the day but well this case they fail as a matter of law on the merits i'll go to the policy maker of issue for sed but i would suggest to you the sixth amendment claim cannot succeed it's absolutely barred by hack forces humphrey she was convicted it's barred by mckinney versus pay she had an absolute right within thirty days to get it to novo trial you follow petition for search of the superior court and that's the way i believe our system does work errors of law committed by a judge or reviewed by appellate courts you don't get to jump into federal court and the sort of damages remedy heck barres those types of client was somebody told her she had the right to an appeal and to have counsel appointed if she was indigent absolutely she was told that when she was told that she had a right to appeal it at the hearing on on what year march twenty eight i don't lawyer she appeared back in the court and she was given a form she's not illiterate there's no allegation here she's a literate and she wrote she prepared a civil rights complaint herself she admitted in deposition that she did it by herself she did an amended complaint she filed a motion to strike affirmative defenses she filed a motion for summary judgment i've defended cases from lawyers that have drafted words compliant she's not a literate she signed this form she checked every box on the form is about seven of them that informer of her right to counsel she signed it knowingly involved airily the judge has watched her and submitted an affidavit and he your dissent it buys italy because what you did is you agreed with the majority that the jurisdictional issue was present but you then said let me go ahead and deal with the merits of the underlying claim the beard claim if you will you said having a drink and two other justice judges here were not on that panel so excuse me for reading a little bit but the argument is my argument and it couldn't be stated better having addressed the threshold jurisdictional issue i would proceed to the merits the senate k'naan of miss brinson sql aim is or indigent status this was a case she was on probation they were evoked her probation because she could didn't pay or five and they and they did not consider her indigent status the senate put on of her claim is their interest and status same issue here in this case in beard  versus georgia supreme court supreme court held that revoking an indigent defendants probation for failure to pay fines or restitution violates due process rights under the fourteenth amendment exactly the same claim that's being pursued here you said i see no meaningful distinction between fines and restitution on the one hand and probation services on the other i would as a corollary to that i see no meaningful distinction between those two elements and the payment of a seven hundred forty five dollars fine when she was found guilty of an offense for which she clearly was guilty you said under this president precedent the court imposition of the probation fees did not injure ms brinson until the court revoked her probation and imprisoned her for failing to pay those fees exactly the same situation that's being argued here but you said at that point she had a remedy she did have a remedy the fact that she was in jail twelve days makes no difference she was sentenced to sixty days she has a right to follow habe use corpus petition she did not file that and as you said she could have appealed the revocation and her resulting imprisonment she did not appeal however consequently the court's actions and sentencing her to imprisonment remain undisturbed in other words the law considers the court's actions lawful you said the supreme court in heck versus humphrey instructs that plaintiffs may not pursue damages actions that would in effect amount to a declaration that their state court conviction and sentence though undisturbed are invalid here misprints since claims that her probation was improperly were due to  inability to pay just like the argument here on fees and assonance is an attack on the legality of the custody to which she was subject when she filed a complaint thus i would affirm on the merits same exact situation here and i couldn't really say it better the argument that is made here by the appellant is that the judge in this case judge patton was acting under authority judicial authority somehow issued him to him by this that mcdonnell that isn't correct they rely upon to georgia constitution article six section one and the supreme court and they say that the general assembly may establish or authorize municipal courts well did they do that they did that in thirty six to one the then it must derive its power and its judges must derive its power from the municipality as opposed to the state but that ignores georgia statute thirty six to thirty two three its entire powers of business book or judges in criminal cases which is what we have here all judges of all municipal courts in this state shall have and are given the same powers and authorities as magistrates in the matter of m pertaining to criminal cases of war date whatever nature in the several co from damages they suggest well you could fire this judge they may come to that but in this case in this particular case they do not have the power and would never have the power to overrule the judge making judicial decisions in a state court criminal case you mean if you mean that you mean the municipality doesn't care what is judges do it has nothing to do with whether they care about it they don't have any authority to over rule a judge only you know but did that the allegation again i think you're going to win on the merits of this case but your attempt in my opinion to defend what happened here is going off i wrong on the wrong foot because the allegation is not that this just happened to ms teagan in this case but that it's happening every single day every single week in the mcdonough municipal court and you're telling me that the policymakers whoever they may be in the city of mcdon have no power to remedy that circumstance by for example going to the chief judge of the court and saying listen we've heard these disturbing claims and allegations we don't know if they're true but can you make sure that this stuff is not happening you're telling me they're fact i have this case this case is mistaken scates in a criminal trial where she did not avail herself of all the remedies that are available to her she did not follow him use corpus petition the judgment is final she cannot attack that conviction and bearden versus state judge joe flats dissent is absolutely on point and i stand behind it i'm not defending other cases there may come other cases this case a municipal court judge is a policy maker for section nine hundred eighty three damages liability my advice to every city would be to disband the municipal court  make them state courts you can the court the municipality does not have control over individual cases like this and this is the only cases before this court is the tikkun case and it's got bad facts for that the defendant how willfully failed to pay the fine that's been the lozenge nine hundred eighty three it is do well as we understand all that and that we understand that reprehensible things took place in this case they took tell you i mean don't you don't have you don't have to tell us what the law is we understand them with the constitutional law but my point your honor is that deprivation took place pursuant to a well established policy of the city  and in a civil court to issue a arrest warrants for failure to pay a fine without any prior determination of of willfulness because i think i accept your underlying arguments about the unconstitutionality of some things that may have occurred here so you have for me you have a sympathetic ear but part of the problem you have is that a lot of your claims maybe not all of them but a lot of your claims questioned the validity of misty guinn's conviction and why isn't the city right the arguments that mr gray made suggesting that t mean that that hack bars those claims right now i mean one of your arguments is that her conviction is invalid because of everything that predated it and everything that post dated a claim like that calls into question the validity of the conviction and has heck says you generally can't sue for damages unless that conviction is vacated expunged or set aside how do you get around that your honor if we focus on the the central issue in this case which is her imprisonment for twelve days without a prior determination that does not call into question the underlying conviction of driving without insurance she was jailed for aced a city created nonexistent offense of failure to pay a fine having a damages remedy y herrings are they are they had somebody detained without probable cause things of that sort who had been arrested and they want to hold the cark responsible for  what the magistrates were doing when the the law of alabama provided for all sorts of remedies most importantly the writ of habeas corpus but nobody did anything about it and want to hold the clark who's not a lawyer of prisons judge innocent pointed out that hack does not apply where someone has already out of jail and had no reasonable ability to challenge the incarceration she did not as an indigent pro se individual who is brought in handcuffs to the jail have the ability to file a writ of habeas corpus which you requires that you bring it to disappear court judge that this a period court judge sanction that it then be served on the defendant by the time that happened she would have been deprived of her constitutional rights for an even longer period of time the point is that there was not a pre deprivation hearing and there is no georgia statutory law takes up the constitutional rules you're in i would have no europe your argument is that that's all that's law throughout this circuit that's a lot far as i know and united states  municipalities and counties so your argument boils down to the cheese and the didn't and didn't know how to do the thing and said she said it didn't and the know how to do these things whoever created this judicial process is to blind if i could just respond here or even if there was hey b is corpus available that would not have remedied the fact that she was already incarcerated without i hear it right away even assuming that the court could have heard her writ of habeas corpus she still would have been deprived of her liberty well the red river would not have cured the deprivation of her liberty w to remove this judge for any reason whatsoever there you are in the city this an incompetent judge so every error that he makes you turn in the money damages no your honor this was done pursuant to a well established city policy our exhibit attached to our summary judgment motion so those sixty four individuals arrested for failure to pay a fine both ordinance and state offenses which were at over a period of four years all the same the city has generated like seven million dollars in revenue from fees and fines this means there could be a clerk of the court acting on her own as a city employee looks