the state court administrator conducted in two thousand and four an investigation of the court at the conclusion of that investigation she reported to judge davis in the state court administrator that the plaintiffs lied withheld information and attempted to coerce others to lie during her investigation judge davis was advised by the state court administrator that she should terminate those three employees she did so the three employees filed this lawsuit claiming that they had a due process right to continue to employment and the that we're here on today is a qualified immunity issue the question is whether judge davis or any reasonable official in her position could have concluded that the plaintiffs were at will employees and therefore had no right to due process and whether a reasonable official in judge davis position could have relied upon the state court administrators office who concluded that the plaintiffs were in fact there was in fact good cause to terminate the three plaintiffs now that you're all very familiar with the qualified immunity standard it's a three step approach we ask whether there's a constitutional right that was violated whether that constitutional right was clearly established and whether the judge knowingly and intentionally violated that right here and as it relates to whether there was a constitutional right the issue is whether the plaintiffs had a protected property interest in employment as defined by michigan law which makes this a little bit unique for the court it has to review michigan law as it relates to that interest as to whether it's clearly established the court has to decide whether any reasonable official in judge davis position could have concluded that these were at will employees now the trial court clearly applied the wrong analysis we petitioned the court for qualified immunity both before and after trial and in the after trial analysis the judge said after reviewing all of the evidence in the case the court cannot conclude that no reasonable juror could find just cause employment that is the exact opposite of the standard that this court has to apply the standard is whether any reasonable chief judge sitting as an administrator in judge davis position could have concluded that these were at will employees not whether any juror could find the opposite and that that's the standard that judge borman applied and i'm sorry that's that's the inappropriate standard here in fact that standard that judge berman applied demonstrates clearly that there was evidence to support the verdict but it also demonstrates that that evidence would create the situation where reasonable officials would find otherwise and therefore it demonstrates that judge davis is entitled to qualified immunity as a matter of law the question regarding due process was there a due process right violated as i indicated we've got to examine michigan law michigan presumes that employment nation ships are at will relationships and in order to avoid that the plaintiffs in this case are not claiming that there's a written policy or procedure that says there just cause employees there arguing there was an implied legitimate expectation of such employment and to find a legitimate expectation the court examines policy statements or practices of of the court that apply to discharge not discipline and that contain clear unambiguous promises  just cause employment they have to be communicated to the workforce in general and they have to be understood by every member of the workforce in fact when this court had this case pretrial it remanded  decided the first time this this case was before this court was whether there was affected issue as to the plaintiff's protected property interest in continued employment so we would be revisiting that is she which is the issue you're now addressing is that i understand well this part of the argument the first issue you mention whether a reasonable employer might conclude that these were at will as opposed to just cause employees is an issue i do not understand to be decided by our court previously but the issue you're talking about now as i just cause or at will employees and the court said this goes back to the state to the trial court but the proof it did not differ materially did it from the proof that was before the court on the summary judgment exactly that's exactly right so well i made some submitting that k the it wouldn't of necessity a review of the trial court's decision to submit that issue to the jury in fact including that the precedent of our court was wrong i mean we can't do that oh no no no all right well didn't you know then you and i are communicating really well on this so explain to me how we get there from here because we get there from here from there because you're deciding a qualified immunity issue the question that this court decided earlier that there was a fact issue regarding plaintiff's employment demonstrates that qualified immunity is appropriate because that fact issue demonstrates that reasonable officials could conclude that there are two different issues yes that the issue of whether or not these employees were in that just cause or at will employee is one issue yes i understand that to have been the issue that our court was concerned with earlier the other issue it seems to me is the issue of whether it was reasonable for judge davis to conclude that they were at will employees even though they might in fact have been just cars employees and that the qualified immunity went and that's the stronger argument because the other argument is that her stand it is precluded so you know you can't get it you can't make it stronger it's already off the table except that the fight immunity the court looks at whether that right was clearly a stamp list and by this court concluding there was a fact question and that the facts haven't changed it was not there for clearly establish it just because the jury decided well it's clearly established that if you have a property interest in continued employment then you're entitled to certain procedural safeguards wrecked which were not received in this case a wrecked and the question though is so what's not clearly established about that all the question is not so the question is whether whether she was reasonable to put him in one category as opposed to the other right and because we're dealing with this state law legitimate expectation theory then the question becomes whether people in that position in her position could look at it in different ways and if we had a written policy or procedures that said there just because the courts have clearly said you can ignore them but in our case we had this legitimate expectation theory and  legitimate expectation theory is based on an interpretation of a practice that she knew nothing about which is exactly where you're going to get a reasonable official have known about and therefore whether she could conclude as a matter of law they were place so the court has to do both they have to and has to interpret the existing law under state law and then determine whether it was clearly established for judge then i would suggest to you that several of those steps really are pertinent at this point but whatever you  mean you and i don't have to agree on that as it relates the issue that you've you've raised judge that the question then becomes was it clearly established to judge davis or reasonable official in her capacity and whether it was clearly established that this is the background at pretrial the court held that as a matter of law these were at will employees then this court remanded and said no there's an issue of fact as to whether they're at will employees and then we went to trial and the evidence at trial looks like the following there is no written employment policies or procedures for judge davis to look at there's a court consolidation that's going on between the two buildings of the forty one b district court she meets with judge can and says give me all of your policies and procedures so we can decide how the employees are going to be situated nope these are procedures are provided the state court administrator meets with judge can and ask the same information as the same from his ma gistrate no policies or procedures are provided the state court administrator comes in and conducts an investigation of the court and during the investigation of the court the state court administrator interviews every employee that one employee provides a policy that one employee provides a procedure they interview the plaintiffs in this case and neither of the plaintiffs provide none of the plaintiffs provide a policy or procedure in the case and she concludes she's an attorney trained attorney from the state court administrator office that these are at will said was we followed clinton township policy when asked the specific question if there was a harassment policy she said we followed clinton township policy and that was the only indication of anybody talking about a policy or procedure maintained and your argument is that the policy was ambiguous it was unclear what the policy the claim was that they the policy she was talking about was a harassment but had nothing to do with terminations that could not articulate a just cause practice or procedure but is there any dispute about that being what was there i don't think there's any dispute about what was said i took a direct line from her testimony she was asked about the harassment policy and she said there was the court had adopted clinton township's policies relating to harassment but she provided no other policy or procedure but that's also what he said that she said to judge claimed that she said that at trial at the time of terminations and to claim that she said that to her and i would indicate to the court that when you're talking about a legitimate expectation theory someone saying that to you is totally irrelevant it has to be in a policy or procedure that's communicated to every employee of the court and that's what this case is about one of the more pertinent inquiry big whether that was sufficient to put judge on further notice that she should inquire further and whether it would still be reasonable for her to persist in her belief that that these were at will employees i mean in that the more pertinent in that arises from that question the question is whether she knowingly and intentionally violated the constitution under qualified immunity analysis and that's what judge boardman hinted to he said look even though there's no evidence that she knew and he went through all of the evidence that he said even though there's no evidence that she knew what i'm to hold her to is this standard she should have asked further questions or should have investigated further and i would submit to you that had she investigated further she could have talked to mr tanner who was the attorney who represented judge cannon and was a labor attorney for clinton township and he would have told her unequivocally these are at will employees there are no policies or procedures in fact i created a manual for judge can which he has yet to implement that says nineteen times these are at will employees she could have inquired further as to the deputy court administrators who both testified in this case that these were at will employees she would have found out that a year prior just cause employees and their testimony that they believed themselves to be the just cause employ yes just a judge killed and that can only end that's the same evidence that was jury when the state of the record and the state of the ruling are the same in both kind ext how do we revisit that i mean even though the trial record supplant the summary judgment record if the two were this had to have how are we going to question the prior ruling of our court as with the jury deciding with this jury got to the question that they got to was whether these were at will or just cause employees not whether a reasonable official would have could could have concluded otherwise i know i don't disagree with you about that i guess the point i'm having trouble with is you continue to catch it in different terms today but because brit because we're dealing with this obscure state practice that doesn't make it clear that the question becomes not to the jury conclude that there's a legitimate argument that the lack of clarity might make her conduct more reasonable absolute but it's not been clear to me that that's been the focus of your argument and unfortunately to make that argument you've got to go back and look at the state law because the state law says what's clear for how you prove that legitimate expectation theory and that's what makes this whole thing fuzzy if this was a case whether there was exhausting policy or procedure like the case law that the court cited to us where there was an existing charter provision that the administrator simply ignored whether there was an existing c v a that the administrator ignored that it would be clear but in our case there was an ambiguous situation which judge davis knew nothing about and therefore the question is whether it was reasonable conclude and i submit to you that further investigation would not have clarified that process it would have done the opposite she would have learned from every other person at that collapse not in the dark while the well it is judge it isn't only to the extent that those people that she had but because they testified judge only because they testified and what they said is that a year before we did this investigation and we took all these people at will employees and to say anything otherwise good morning and may it please the court prescott appearing on behalf of the plaintiffs appellants cross a pelleas i think judge given you and i are on the same page that some ground has been covered here  and decisively sell it you know there was not a it was not a vain action for all of us to come down here or and in the two thousand two thousand and seven to two thousand and nine timeframe and for a panel to sit and decide there was a jury trial fact question here right i'm not sure what would mean to you overseas to me she would not be there would not justify what the defendants have asked for which is entry of judgment in their favor because qualified immunity  d and my question qualified immunity would not preclude reinstatement it is an immunity that applies solely to the judge the dollar judgment or yes the dollar judgment as opposed to and tree of judgment because they would be entitled reinstatement so there is that that that wrinkle that we did point out that entry of judgment would not be appropriate no matter what the qualified immunity analysis let me talk to about the qualified immunity analysis and since i think we generally agree that what has been covered has been cover you know mr fringe just spend some time up here saying what if judge davis had done this and one of judge davis had done that and guess what people would have said well you know what i didn't hear him say is what if judge davis had picked up the phone and talked to the person she delegated to make the employment policy and personnel decisions here who is bill can't she testify that she had a lot of respect for both can and she testified she delegated the decisions to him on what to do in terms of policy in this court ok she testified she understood loudermilk and that you have to give a hearing if there just cause employees she testified that she understood doesn't have to be a writing mr friend just an appearance and well there's no writing there not there's no nothing for her to look at she testify she understood there doesn't have to be a right but under michigan law you can look to the policies and practices so she understood all of that was she there was a lot of seeking it from a sion and for one reason or another judge canon apparently not to respond under circumstances where one might believe it was reasonable for him to do so correct two different points miss smith judge davis relies on a committee some committee where people are trying to merge a court and asking for policies and we don't know when that committee matter what happened while she was she was in a meeting with judge can and can and was very aware what was going on and the request for documents according to the proof there's mixed testimony and i think i know what you're asking about yes judge davis she alone she's the only one who testified that there was a meeting and a request was made for policies policies then were not shuttled between offices that was regard to the merger being however she also testified right in that seem testimony that in fact to the contrary that there wasn't a direct request made to the judges for the policies she testified to to think well that might be i mean that i don't know yet what the import of that is because she might have been expecting court personnel other than judges personally to send the policies but certainly she expect to get them if they exist and should expect continued expect the judges to have an interest in seeing that a ok so let me answer that directly not no one has testified undisputed that when these terminations decisions were being made she picked up the phone call can it's actually in the record to the contrary that she specifically didn't talk to you now which she didn't it even though apparently the the i can't remember the exact position of the individual the court administrator individual who was also doing in who did the professional who court professional who was assisting judge davis in doing the investigation so that if i understood the record correctly all of that and a determination that these were at will employees that at the tab the issue there terminations but were while the prior our determination that she and the court administrator that these were at will employees is that fair or is that not fair well it's unclear in the record is my only ability to answer that because at her deposition judge davis said she didn't make a determination ever that these people were out well what she said trial she sighs oh yeah they were at will and i decided and she's impeached so it's both at trial but it to answer your at your prior question it is undisputed canon said no one came to me no one came to me with regard to her hey we're about to fire some people let's get going on those policies we haven't seen your policies we asked you for what people's lives are about to be changed what do you say to that i mean that's undisputed that no one picked up the phone and called this gentleman and said you're at your the decider what's been the policy we're about to fire the second point though is i mean it is so you have to posit that you have a jurist who gets it who comprehends the ramifications who understands the import of what she's doing who respects this man who's been a colleague of this man who delegated to this man and who can't do that but even if that's not persuasive to you the second point we make is that judge davis need only announce to the employees should an e mail have an employee meeting posted in the in the cafeteria you're all that well and under michigan law that would have been it they w because under michigan law the employer can unilaterally establish policy and change policy at well is there any evidence of anything that occurred post germination that would be relevant to this ng we're talking about i mean so two things right at the time of termination and i forget which of you i apologize brought to light this fact that nancy engler at the time of terminations right then and there does say pas i'm just cause ok is there anything else that is in the record number to judge can and mediately upon hearing what's happened his immediate reaction is how could this happen felony defendants get better process than these people just got and he's very upset immediately thereafter and tells this judge davis ok number three we're told there was a memo it was recorded in the memo in the memo was circulated  that that what's the crime the minute he found out about it that day he said these judgment these are not at will employees or is the merely complaint ended that he thinks they should have been treated better or that he disagrees with their term and well nobody asked him are they just cause or are they i mean he's a side warrior she is i mean he would presumably know that if they're just cause versus at will it makes a whole lot of difference in what process there do well and i mean all the way with and that whatever the import of that we would find that in the record the the the memorandum is exhibit what was won fourteen a trial that's actually disputed issue here because the judge below made us excised that portion on the theory that his immediate response wasn't either relevant i think we know we see that it is highly relevant or if it was relevant then it would be hearsay which is a little strange because the rest of the memo was put into evidence but i guess there'd be an i guess there would be a question about whether her knowledge immediately after a determination you know to the extent she had it could affect the qualified immunity analysis in other words whether and i don't know i'm not sure i know the resolution of this but whether it's to be judged solely at the end of the carbonation the initial terminations decision or whether hew quires knowledge at a time when process could have been given in the issue could have been corrected and i decision maker yeah i mean i'm acting like a trial judge i'm sorry i'm not it's my i mean you at utrecht to the post terminations timeframe one other point i would make there is that everybody agrees post germination all the clerks are just cause and i find that really interesting because i think in your decision judge colin silberstein you pointed to the fact that ok look the replacement is hired as just cause isn't that an interesting it's a piece of evidence that reflects on how people really saw this stuff here all these clerks post terminations are treated as just cause and that's undisputed so what we have here the defendants are reviewing is that there's this donut hole where everyone around these people are just cause and then after this case everyone is just cause it's just not my client and that was so very uncertain and unclear so the floats talk about the timeframe before before the terminations occur to get to your point judge given first of course we have that nancy engler did say and i guess mr friend did admit that she said wait wait wait i'm just caught you also have davis saying she knew clinton township had policies that apply to these folks you know mr francis up here and said whoa and one of the first colloquy as we had was didn't they ask for policies and didn't just can not provide them what's going on with that but the fact is mannering your honour's she admit she knew there were policies so on the one hand she says why aren't herman didn't get out so i soon there were none and on the other hand she says but but i knew that they had policies they had written policies that applied so she is on notice that there are it i guess it's actual notice you know me it didn't come from canon she did see that he fell down on the job there but she had separate knowledge that there were policies but having knowledge that the policies doesn't mean that she has knowledge that those policies include some sort of just cause ok so let me a direct address that yes she also admits she understands that the supreme court of the state of michigan has said courts should follow funding units and those administrative order to that effect and she understands that clinton township has these just cause employ so that the funding unit here has just cause employees so courts followed funding units this funding unit had these just cause employees she employed her own staff at the sister location as just cause employees so  you can and are not you're an employee and she yes she she understands so again it's like this donut theory that you know everybody around these people all the people down the hall in municipal clerks her clarks they're all union or  civil servants or whatever they're all just cause except for at my point judge is not that you can say these pieces of evidence equal i mean she doesn't come in and say i knew they were just cause so to frame the issue would you agree that the issue is whether judge davis was objective lee reasonable and making a determination that these employees were at will employees i think the united states supreme court has answered that for you by saying it is their constitutional violation yes or no the jury held yes it was a clearly established la says yes then if that's true if then then that if fischel is pew did the knowledge that what they are doing is unconstitutional and if the defendant wants to argue but say that for my purposes the issue is whether just davis was objectively unreasonable in reaching this conclusion at the time she did that these employees these three terminated employees were at will i guess i'm trying to understand whether your argument is that she had sufficient information at that time and she just coolly really reached the wrong conclusion that there was sufficient information within her knowledge at that time were or does she just not do enough to obtain information that would have led her to the conclusion that these were just cause because employees it's the former and that's what the district court held is that this was a person imbued by the state with the duty of knowing she was the person to know and she had all of these pieces of evidence and has given you point is the real issue what she knew and what you know nancy english saying to her and all the rest of it or or if if she genuinely doesn't know to go out to the employees and just say i'm going to mean you are well i mean that i don't know how you can say a reasonable person couldn't you know and according to her face with all this uncertainty can can decide not to ask the question and can decide not to render it clear be i don't know that it big figures in this an requested to do personal errands for judge can and his why is that right that is the assertion of the defendants and the judge karen and interest in the play policy arguably have been in post terminations that right not that that necessarily figures into the analysis but i mean and he did apparently i mean he did provide them post germination that that timeframe isn't as clear in my mind because the pre term anation piece of this is where most of the case law lies i agree but his mo you know again your motivation point is exactly my point when you tell someone about to make personnel decisions for three human beings that's a different motivation than we sat through a two hour long court merger meeting and then you didn't follow up by five you know forming your inner office male i mean that's what this really turns on and i guess my point is what what when davis admits that she knew there were to just address the issues that you raised if i could first of all during the consolidation process judge davis in the state court administrator asked for policies and procedures from the township from judge cannon from the magistrate from everybody involved in that consolidation process the state court administrator in judge david scott and plan of counsel said that all judge davis had to do was meet with these employees ahead of time and tell them they're at will employees and they would become it will employees the record is clear that judge davis met with them before the  e o investigation and told every employee if you lie if you withhold information during that proceeding you will be terminated the plaintiffs each testified in our case they were at the meeting they understood if they lied they would be terminated thus making them well aware of what the practice of the court was if you lie during this you're going to lose your job immediately number three judge davis met with the employees before the terminations excuse me post terminations judge canon made no comments to judge davis in the record judge davis testified specifically after these employees were terminated in fact church canons wife was terminated judge kana came forward with nobody indicating that his wife or anybody else was a just cause employ he made no comments to judge davis he made no comments the c court administrator saying that anybody was an employee the allegation is that judge cannon made some off the cuff statement about a scorched earth policy that the judge did not admit into evidence in their case he never came forward and said wait a minute these are just cause employees and you applied the wrong standard or you forgot to give him a pre or post deprivation hearing of some kind he'd never made any comment like that although he continued to be judge at th in a district court proceeding you have a local funding unit the local funding unit ends up paying the employees so they adopt the policies and practices of the local funding unit related to that there were no indication that any other policy really relating to terminations was ever adopted by the court in fact the only policy they rely upon is this disciplinary action procedure which my point was can not legally support this theory and i know judge you have an issue with revisiting that so i won't go back into it it sounds though like his testimony there was she had some ambiguity in her mind as to what these policies provided she had ambiguity in her mind because there was nothing in writing this court had never adopted anything in writing it had never adopted anything formally everything that they've talked about in this case judge cannon's practices were not obvious to anybody in this case and that's why that is why she is entitled to qualified immunity because she and every other person who looked at it said these are it was there it was there was one last question i mean is there any more that we should could have done you know reasonably done to determine the legitimate expectations of these employees i not asking the employees absolutely she could have asked the employ please and then and she did talk to a number of employees she testified she talked to the deputy court administrator she talked to other employees and in fact every other employee testified in this case by affidavit that there were no policies and procedures we were always told we were at will employees judge can call meetings to tell us to bring us in and tell us we didn't like it or we could leave at any time that's what every other employee testified to had she done further investigation that's what she would have also a practice that in effect had just caused terminations yes he said it would have been my practice to provide just cause before terminating people he said that two years after in a deposition right in the significance of that is this his testimony is totally irrelevant because it has to be in a policy in circulated to the employees for a legitimate expectation theory to apply the fact that he said that two years later doesn't doesn't change any part