case number eighteen dash six zero two six daniel norfleet versus heather renner at all argument not to exceed fifteen minutes per side miss williams  morning here on ars my name is robyn williams and i represent judy ferris who was a traditional commissioner for houston county in tennessee and this case is regarding an appeal from the district court's decision to deny i judicial immunity i'd like to take a moment to just request five minutes from out of time and but the district court denied the request for cause i judicial immunity and qualified immunity in this case and so we seek an appeal to overturn that decision this case involves whether or not miss ferris acted appropriately in issuing an arrest warrant norfleet alleged  unlawfully issued an arrest warrant her violation of probation and he claims that she did not have the authority to do so in looking at the case law there are two instances in which individuals can overcome  those are circumstances in which there's the action taken is not a judicial act or the action is taken in clear absence of all jurisdiction in this case it's undisputed that this was a judicial act so the plaintiff has alleged that there was no clear absence or there was clear absence of all good excuse me that there was complete absence of all jurisdiction we we deny that we we believe that there a clear absence of all jurisdiction the tennessee law clearly grants authority for judicial commissioners to issue arrest warrant but the plaintiff relies on a specific statute that says target practice to the judicial commissioner's issue these types of warrants commonly or was this more of a one off instance in which a commissioner had issued this type of warrant you're asking whether the issues i'm just curious if honestly your honor i'm not sure this is the first time you know that i've had a case that's come up with this particular issue and i'm not sure if it's something that's more common or not however in the statute in tennessee while it does talk in terms of the trial judge it doesn't specifically divest authority from the judicial magistrate so window in our cases are also difficult for me to comprehend the difference know bradley versus fisher from eight hundred seventy three on in the stump case in the morale is case when you're looking at a lot of those cases what they seem to encapsulate is this idea of if there's any subject matter jurisdiction at  or judicial officer then you have to say that they are entitled to qualified immunity in this i'm sorry in addition to immunity they tend to look at whether or not if you for instance you know in one of the cases the judge had issued at the stump issued a well i gave petitions signed a judicial petition for tubal ligation and in that case the court looked at that at the issue and said well the court clearly did have authority to issue you know to sign petitions and to hear these petitions so in that circumstance you know he had some subject matter jurisdiction even if he exceeded that jurisdiction and several of the cases even you know three days ago in the middle district of louisiana there was a case very similar to this one where the court looked at the same thing in a justice of the peace issued in a criminal and rest more for criminal defamation and the courts said well he did have some authority to issue different way of thinking about it and you can just tell me how tennessee law works but let's not think of it in terms of a war of warrants some think of it in terms of arrest warrants let's think of it in terms of criminal sentencing and probation and are would not  be right in thinking that the way it works in tennessee is with felonies and this was a felony underlying felony conviction but also sensing is done by the quote trial judges that has commissioners have no authority over that you could never go to a commissioner to add some extra part of the sentence and all that's going on in this case is the undoing of sentence or what happens if you're out of jail so you're in probation and if you think about it that way isn't that a world where only trial judges are allowed to operate and everyone would understand that in tennessee perhaps that's the way that it's intended to work perhaps this statute intends for only trial judges to take actions with regard to the revocation but issuing an arrest warrant is something that falls within the jurisdiction of the magistrates there are several tennessee statutes that are very clear about that what's puzzling is you know arrest warrants go to violating laws probations a contract and the contents of the contract quite often don't require a violation of law and when in fact it's quite puzzling the way this has been briefed on the second part of the qualified immunity one's pointing out that it doesn't have the problem cause of violating a supply violating some law it could be violating the terms of probation it's a very it's a very light standard and so i find myself just thinking we don't want to think of it in terms of warrants because that's just not what this is about this is when you're on probation you're getting this great benefit out of jail with a ton of strings attached and those strings don't have to deal with you violated some law and and so that's what's so funny to think anybody a court of appeals judge a supreme court justice a magistrate would have any authority over this other than the person did the sentencing had incredible discretion over it and a credible discretion over when the person leaves jail in return for probation so that's what has me when i'm being honest with you that's what seems to hurt your position and are staying that your honor however because the statute in tennessee do give such clear authority to grant for them to issue arrest warrants and even for the violation of probation it's an arrest warrant that it's issued so if they have the authority and there is some ambiguity in the law according to the standards that are in mills versus am i getting this wrong i thought you were saying here's the relying on this provision that said they could do felony arrest once there are several statutes in tennessee that allow them to issue an arrest warrants not just you're correct there is one that specifically talks about felony what's broad and it just simply states that the first one doesn't help us what is the second one the second when just states very generally also that judicial magistrates have the authority to sign arrest warrants within their jurisdiction  a person charged with public offenses when jus interpret public offenses would you interpret that to still include i would think most naturally that would that would mean a felony or misdemeanor might expand the range to misdemeanors but i would still think that would have to be a criminal violation of some type for that for the apprehension of persons charged with public offenses magistrates are authorized within their jurisdiction to efficient warrant of arrest in a probation violation to be you're supposed to show up at your a meeting or you're supposed to meet with your dry tact and that's not a bias of course on a criminal offense that wasn't the case in this case your honor i mean it was the case that he was it was harmful there was a that he was potentially harmful himself or others was the allegation in them but i guess what maybe i'm just help me out because you're the expert but that would have been a very different story if it was an arrest warrant for beating somebody up an arrest warrant for threatening somebody under the statute even the one that talks about search warrants and felony arrest warrants it still says that their authority is not limited to felony arrest warrants so generally they can issue an arrest warrant and i think that doesn't say nothing more than the statute doesn't it says that they have certain duties and they're not limited to those duties and so when they're setting out the duty for search warrant and felony arrest warrant i mean they're talking about i mean when you look at that statute some of the provisions say that if you have a smaller county you know you're allowed to do certain things it's when you read the statute in its totality it's very clear that they're talking about also issuing arrest warrants but they've just specified some of the more severe things like a search warrant  filling arrest warrant but i think that still gives the judicial commissioners the ability to issue a general arrest warrant here even though there was not a new violation being raised at that point i think that the statutory scheme allows for them at judicial commissioners to still issue the arrest warrant if you if they don't have that authority and perhaps that's the intent of the the revocation of probation statute but it's not clear and it doesn't express lee divest that authority from the judicial commissioners so they have no way of really knowing if that they have the authority or not into this situation where you know i would have said the same thing about all the features of sentencing and how that whole what commissioners do that's all this is this is how long are you going to be in jail and one of the terms for getting out and it's a very special it's a contract that's the way to think about it's a contract except sentencing is something that is more exclusive to the judges and very obviously the arrest warrant is within the realm and that's part of the subject matter of what judicial magistrates do in tennessee thank you four corners of the affidavit and if they find that in they issue the warrant and that's their function and additionally i believe under the want to live in statute do we cited in our brief they also issue search warrants after a determination of probable calls within the four corners and some other functions such as setting bail world warning counsel if the person is indigent but beyond that in to follow up on your question whether judge murphy  the probation violation does separately or potentially separately violate a criminal law and so now someone goes to the magistrate and yeah they're they're not sure about how all this works and they say here this happens to be a probation violation see this part of the probation deal that by the way it also seems to violate this other come the law so in that case you could issue it right because it would separately violet simply be a criminal offense you know what how can you have it you can have an a you in this alternative soon it's conditioned on belief fourteen standard conditions of probation and number one it's i will not violate the law well if you go out and catch let's say i get caught drunk driving well that your arrested will they take the  is going to be forty thirty five three eleven subsection a what would have happened if you had to trial judges in the stake or in smith is the trial judge and judge smith is the one who does on that level if you're in the twenty third judicial district and that's where your sentence come from any soon it's in judge in the twenty third district circuit lol of course i don't have to be that judge it doesn't have to be that judge but it has to be a judge from that court at a trial level for example if you have a circuit court judge gives you a three year sassoon suspended sentence and you have five circuit judges on that circuit any of the five can issued one and that's sort of provided in three eleven be correct correct just so i are usually i tend to think that if it's ambiguous then there's a there's a fair argument that it's not a clear absence of jurisdiction and you said that  forty thirty five for dash thirty five dash three auburn a was unambiguous granting exclusive jurisdiction to trial judges to issue these types of warrants but usually when i think of exclusive jurisdiction i think that the you would use the word exclusive or only i'm thinking of the federal criminal laws we district courts have a regional exclusive jurisdiction which makes it perfectly clear that usually you see that but that type of language in that type of language is absent from here are just the best i can see from it is under the trial judge's hand but so you think if i if i think that that that provision is in big us would you would you think would you well are you talking about the under trial court here in stance you all the one that the magistrate i'm just trying to i'm just trying to figure out the entire statutory scheme so when i look at this entire statutory scheme and strikes me as somewhat complicated and i can see room for thinking that there might be ambiguity under whether the judicial commissioner could actually do this when you know when you the list of commissioner duties it has a a list but then it says but not limited to which suggests there could be other duties and then you have this provision and it doesn't have any type of exclusive jurisdiction or only trial judges type language that i would assume would make it perfectly clear that only trial judges could issue that these types of revocation warrants in fact when i put all that together i think there's potential room for ambiguity about whether judicial commissioners could do this you know practice in that area to me no it's not ambiguous because there's a and if you look at that and others under six eleven there are some additional statutes for example a magistrate could in a domestic violence situation he could order a no contact order a stay away order from the house and in i'm going to guess it's not spelled out that the commissioners have no authority over restitution or bail i'm going to guess that when you refer to the trial judge's authority over bail and restitution it doesn't say and nobody else but i think we probably all agree commissioner that did a felony arrest warrant and then said boy in light of what you've done i'm outing fifty thousand dollars to the restitution people would be a little surprised by that and that would fall on the clear side so this is why the case is hard it's you have two things what you can do or two different people can do they don't completely answer it but then we have these assumptions about what criminal trial judges do and i'm just saying it's hard if i it hard hard not making it ambiguous hard to figure out whether it's ambiguous to be clear look let me give you a different context from if you're circuit court judge and you have a case you're responsible trial and so forth he has jurisdiction if you're convicted and soon it's over that case essentially a perpetuity anything lower level general surgeons had it went there for pulling mary here and with a magistrate which is a level under that which just does the initial clearing for the arrest the probable cause determination that case will never can never go back down to those levels once that cases is resolved and that's why this statute is so specific because what you're seeing is the only person that can for example if you file modification of senates which is allowed under tennessee law that has to go back to the trial judge which is the trial court level that you come from sentence modify your suit or revoke your probation and that's why they have to issue those warrants and and that's the only party that could know what provision says that the trial judge is the only one who can revoke probation tunnel forty in subsection thirty five and i couldn't tell you the actual statute number off the top of my head but it's in the senate's a report because the problem with three eleven is right says that the trial judge shall have the power to cause to be issued under the trial judge's hand  warrant for the arrest in this probation violation situation but it doesn't say as we've pointed out only the trial judge can do that and the arrest is really the first step then to the then we have the question is that provision in one eleven and i'm looking indeed to the duties of the commissioner shall include but are not limited to the following issuance of arrest warrants upon a finding of probable cause so assuming that there was a finding  probable cause here there is no limitation on the duty of the commissioner the commissioner issues this arrest warrant here there's no only in three eleven there's no limitation eleven so why isn't this at least ambiguous as to whether the judicial commissioner has power to do this and judicial immunity therefore is appropriate well me the way you state appellate courts look at it when they are determining stashed or destruction i hate to go there it's so boring but when you have a generalized statute to give you parameters but you have a very specific statute in comport with that very specialized statute so to me it's not really ambiguous because you have a very specific statute controlling the exact issue we're talking about that is at least being ambiguous and till you have a tennessee state court writing that that is the way to interpret these two provisions at you know to be no i think you would give this court what you think it's so obvious that any judicial commissioner sort of understood that she didn't have the power to do this or it querrey why so you cite the attorney general opinion but the reason you ask the question is because you find it in big us so these were general session judges it says from tennessee they asked the question after this change in law are magistrates now allowed to issue revocation warrants they obviously got the attorney general's conclusion that they're not under your reading of the statutory scheme but it seems to me about that the very fact that they're asking this question is some insight into whether it's ambiguous well you know i want to go back to now to understand enforcement to become a magistrate in my district you have to be a friend of somebody and you are pointed magistrate and then at some point within twelve months you go to a little judicial training place for eight hours and you're a magistrate in tennessee out where we get to us the question or the answer might be obvious to the lay person level at that level which is the barry lowest level of county government the question might not be or the answer may not be obvious are they allowed to issue an arrest warrant as having rudimentary education or not running around issuing arrest warrants as long as they think they have probable cause the absolutely and i don't know if we include it in our i don't know that i have much more to and other things and because of the ambiguity because of the standard in mills versus killebrew that this court has sent out there has to be you know some clear indication that that authority has been everything else this is the one of the things they can do well i mean i've not heard of you know i've not seen your provision about probation and trial judge authority let me start there i don't believe well there is yes there are in tennessee actually there is some statutes that actually dictates like you know the when they're considering probation the things that they consider indigent you know what they consider with indigency so there is there are some statutes i'm not as familiar with those as i would like to answer your question with it but there are some statutes that discuss the specifics of what the trial judges are to consider any statutes out there when it comes to these different judges throughout the chain that use exclusivity type language i don't know that there are your honor but only language you know you know very things out there that contrast this to because you know the idea of the legislature knew how to spell out exactly what you could can do but that do it here i wish i had an answer for you on that i'm not sure if there are some specific statute that gives them exclusive authority for there is actually a statute that gives the circuit court exclusive jurisdiction of like play claims and things like that over a stance  court but other than that one off the top of my head i'm not familiar with any others that there could be so there's this tennessee attorney general opinion of twenty two thousand and four is there any later attorney general opinion or is there any history of how it's been interpreted or applied or anything else to my knowledge there's been no other attorney general opinions and i've seen no case law that's interpreted the statutes and whether or not judicial commissioners or magistrates the interchangeably in tennessee and there's a statute that discusses the fact that they're interchangeable but they are i haven't seen anything that clarifies this point and so far as you know there is no case that involves a switching topics to the second question qualified immunity i'm curious if you have any cases that suggest you can have this backup argument because both parties concede that this was a judicial act and the way i interpret the supreme court precedent on i mean it is in one thousand nine hundred three it's a functional analysis it depends on what type of act you're performing so since both parties agree this is this is a judicial after i would think your only option is absolute i mean i've never seen the court say you can have a back up argument of qualified immunity at once we find it should judicial but then nevertheless you still get a recent qualified immunity test so i'm curious if you know of any case or what your reaction is to the notion that apartheid immunity might only even make sense here because both sides agree that it was a judicial are i was not aware you know i was kind of curious about that myself and did not find any cases that address that point specifically because traditionally you know that's an argument it's made on behalf of like county actors in the judicial commission executive branch is usually what qualified immunity is reserved exactly so i mean we've made that argument and and don't know if that if it actually would apply but think it's appropriate to make the argument and address whether or not you know in a circumstance like this when this fair is acknowledges that she didn't know whether she had the authority to issue this mor aren't and it is unclear and she's acting in good faith i mean under the prior law under the was a judicial munity cases they talk about even willful or malicious acts on the part of judges or excuse entitle to call it quits the judicial immunity still so i agree i think that's the stronger argument in a case like this but i think it's but you know why are you conceding it's a judicial act if if you you know on the assumption there's no i'm strong to figure out exactly how this works it seems go i could see it either way well i mean i think it's really clearly the case law that the issuance of an arrest warrant is a judicial lax i don't really think there's an argument that there it's not a judicial act and you can appropriately falls under prosecutors i guess they're the ones just requesting it they don't have really authority and is there any situation where prosecutors or probation officers issue warrants in connection with probation violation violation situation yes and so they regularly do this yes you're hooting arrest warrants for felonies and then the person arrested has to appear in front of a actual judge yes your honor ther and once they're arrested that you know they have a certain amount of constitutional time to get to meet with the judge or have a hearing the amount of time you know your question thank you both for your argument the case to be submitted and would the clerk call the next