was actually a court process rather than a drug treatment program to you then lose case i lose the kids why you lose the appeal i guess you already lost a case  you're understand the question because you are you keep referring to it as a drug treatment program messing should be central to your argument that you know employees of a drug treatment program do not have absolute immunity but if we instead conclude this is a court program if you will a court proceeding then why are these people any different from if you don't like my ruling in this case and you sued my law clerk that you thought might have helped draft it i can answer that they're not adjudicators think the case should be affirmed or reversed they don't decide it we decided but they certainly have a thought if you were able to discover what that was can you see the law clerk say when you miss this case or you made the wrong advice but a lot clerk is not the same as a case manager or probation officer a case manager is a person who actually can make a decision have a recommendation to be made based on what the case manager thinks was the  that was committed by the participant and it's really important that distinction because what did happen here is that the case manager the probation officer this team would meet on a monday and go over who was noncompliant with the program based on their views and non compliant is something simple they could be not showing up for a meeting on time or it could be your paperwork from your a alcoholics anonymous is incomplete it doesn't mean it's a technical probation violation it's just not to climb it with their rules aid the court in making a decision as to whether a person should be sent you know held in contempt taken out of the program or whatever the judge was ultimately going to make the decision their record make recommendations to that judge why is that not part of the absolute immunity umbrella because those are not the facts they made they made recommendations that were really actions and this is why there were actions and policies and practices that were implementing an unlawful policy because when they would reach a conclusion with no judge present on mondays that somebody was going to be given a six month sanction for contempt even though this was for example failing to provide the proper paperwork they would then decide as part of their policy in practice that the participant would be given no notice of this prior to appearing the next day for their ordinary weekly appearance so when the participant would appear he would it's very complicated but what happened in that courtroom is it's four walls of a court room but it wasn't a court there was no court reporter there was no verbatim transcript there a judge there was a judge but there was no record court proceedings happen without a court summary judgement hearings in texas for example almost never have a court order but there'd be a recording judge there would be an oral recording then there'd be a  one of the things we learned i mean i was a state trial judge in texas for eight years civil not criminal certainly could call a court order out there to take out what happened in a summary judgment but if i didn't and the lawyers didn't ask for it there was no record at all except what notes i might have made on the docket sheet this is one of the reasons why on a rule twelve an issue like this should never have been decided i'm going to give an example of what happened in those court in that courtroom st example was pretty was apparent from the beginning that was after my client mr carlisle in august th was detained after the judge dismissed him he was detained by the zoo pelleas the following week on september  a private attorney was hired by the family who actually requested permission to go into this closed court room remember this is not an open court room the none of the rules are followed and the district court rules none of the specialty court rules because the understanding the people who are participating in the week we call the treatment court they're very because they get they get they get in a rest of the charge on some and french some violation of some criminal statute that's why there they are right he's there because he was arrested and charged with possession of three percocet pills which were from his mother's prescription when he borrowed her car and  marijuana when he got to a position where he actually could appear because he was rested in november winter went to jail finally in january he's offered the drug court the actual profession of marijuana is still a crime a louisiana  so so he's there because he's been arrested and charged with crimes but then instead of facing the criminal consequences up with that in a marijuana let's assume the person is guilty of the marijuana instead of facing the so does the defendant elect to go into the drug treatment program in other words they could say i don't want to do any drug treatment program just sentence me can say that but what he can't say that in this case is not about a challenge to that original regulations of this this diversion which allows you cannot be part of a drug treatment court and not have to face your criminal side except that while he was in that program they then started charging  him without without actual convictions and judgments of a separate charge which was contempt contempt is a continent just behavior in front of a judge it has to take place in front of a judge what this program did w they failed for example to appear on time for a meeting these police would then put him on a list that he would receive a contempt why from signed off on the contempt nobody signed off there was no entry by the judge on them there's no sign judicial orders on any of these did the judge make it into that make me get to that there's no record entry the only thing that appears in the reason why it's important is because the drug court statute doesn't allow for jail time what it allows if there are violations of the program that there then has to be a motion to terminate the program and then he can be maybe sent to a state facility for intensive probation but what they did have were these minute entries a minute entry by a deputy clerk under the sick no signature just typed by the deputy clerk and all it would say would be contempt six months clock time in the local jail that those minute entries their little resemblance to what happened inside that courtroom would require that you look at the most critical factor which is who's going to pay a judgment there are generally six actors this was a very parish centric organization they were not actually alleged that the probation officer was a defendant here was a state probation officer it turns out he wasn't my understanding was he was actually a local parish deputy former deputy when this will not solve the suit this program was on the website of the parish has under the parish executive and i think that's where it started out the people who were involved in implementing it the compliance officer was a local gretna police officer the probation officer was a parish deputy and they worked very closely with the sheriff of the local parish i think those redactors that should have been taken into account but we didn't even know those factors because we never got any discovery the judge did not allow any discovery whatsoever during these little motions and they went on endlessly there would be a slew and then there'd be an attempt to start discovery and then another slew of the i would bring it seems like you're challenging kind of the whole way this system is structured as instead of going against the rank and file if you will it would seem like you bring in john to believe similar to these bail cases that we have for example the one we had out of houston where they said you're not you the judges are not following bail procedures properly and they challenge that they sue the judge through you're not going to get money damages but you're going to get re and why would that not have been the proper vehicle here if you're basically saying this is a whole secret chamber kind of bizarro unfair setup or that in the case manager that goes to the judge that the judge has to be responsible for th again liturgy note is that the judges the judges wrote and signed orders in which according to the statute this one thousand three hundred and fifty three and for any credit any time spent in the local jail while in the program was credited toward your alternate time after being an adult these are telly's combined with the sheriffs did not give that time because and it wasn't even consistent with saying that all of the credit for contempt would not be given and then some credit for the types of violations would be given there was no consistency to when the jailer the sheriff who wrote the jail credit letters to the department injunction would state number one that the waiver the nd general perspective waiver in which all of these participants signed to waive all of their rights under the louisiana constitution and us constitution is declared enforceable that would be the st because the waiver is put on them by these at pelleas it's by the program people not the judge because i've looked at the records and the records show that when they st come into the court and they're pleading as judge graves was talking about to the original charge they sign a waiver that is the original waiver which is a waiver of a jury trial how would that help now your clients how would it help well firstly they have collateral effects from these us is one issue when you have a six month or thirty day or a ninety day sanction it's virtually impossible if you have been told that you have no rights whatsoever and you've signed this waiver in which you don't even have the rights to bring  in fact it includes a waiver of the right to recuse your judge although i don't see how under any law that could be viable that you were going to think about bringing a hey because they're not represented for that purpose these folks are in the base program where they have been told that if they challenge anything they will be terminated from the program and they will be multi build and go to jail now they all have children they have jobs they have homes they take this program because they're trying to avoid jail but i have to tell you that my client spent over five hundred and seventy days in the local jail over two hundred and seventy five of which were these things shows for things like they have been released they were revoked because they stipulated revocation to finally get away from this like many others and they went to prison in the state prison where they did actually some of the intensive probation work that the intensive treatment  the statute contemplates should take place if there's a violation or infraction of the original program and then they were ultimately released but they did so really even and they didn't get the credit for the time that they spent in the jail most of it so when when there's a question as to what could be the declaratory injunctive relief i thought that judge milan's oh when she said that a declaration that the practices were on long would not impact on them clearly not true at the time she wrote this we didn't even have the discovery finding out that the d o c the department of corrections had relied on what the locals said there cheryl as to my name is meant to do for and i represent that if the defendants apple lease who are administrators of louisiana's th judicial district courts drug court program a program that offers nonviolent drug offenders a chance at rehabilitation and a clean record in lieu of a criminal conviction and jail time a program that enjoys success if you look at record on appeal page number one thousand and forty two you'll see that there are high graduation rates and low recidivism rates in these drug court programs recommendations or doing ministry of the act are under the umbrella how can you explain that the judge said you know you're fine dismissed no problem and carlisle walks out into the arms of the waiting officers to arrest him for not appearing at a hearing he was asked how can that possibly be within the umbrella well i would st direct you to two orders by judge faulkner and the record on appeal one  seven actually the august th is one hundred and sixty three and here is an order by the court despite what plaintiff says that says he appeared before the bar at bar of the court he was represented by joseph merino the court ordered defendant be given a section of six months flat time contempt she said the judge didn't order flood time that somehow the administrators concocted this flat time scheme if it's right here the judge ordered it there is an order underline the detention that that the that the plaintiff complain about these administrators don't detain anyone they don't sentence anyone they don't sanction anyone what they do are issue recommendations like a probation officer or parole officer they are the eyes and ears of the court they give the judge recommendations but ultimately it is the judge who issues sentencing or sanction sanctioning orders who finds defendants in contempt and in this case the plate of complaints oh well the judge is using contempt to sanction them but that isn't true actually if you if you believe what she says in her petition which which we take is true she says that they wanted him to be sanctioned and the judge gave them a chance to go get his paperwork or defined his paperwork so here you have a judge a recommendation from the team and a judge says no i don't agree with that why because it's the judge's ultimate decision tell me about what happens when you were dismissed from the program and then you have to go sentence serve some time as a result of your conviction of even if there is it's up to a judge to give credit for time served these apple least these administrators have no power to call up and say let's give credit for time served and they they didn't do that the judge ordered flight time if that's unconstitutional or illegal under louisiana law those are judicial acts that are covered by judicial immunity and that extent any recommendations that led to those acts to the  drug court administrators for any recommendations they might have given that cause the judge to give flat time or to find them in find him in contempt and i want to say this about the drug the drug treatment was a creature of statute they are you yes and if they exist in every parish in louisiana i'm not sure if they're in every parish but i believe i mean there are increasingly and more and more parishes and now there's i think fifty six drug courts they're all oversee administratively and financially by the state supreme court another indication that this is is a court an arm of the state and and these administrators are entitled to a lot of the memmott immunity in any official capacity cla s if you look at the statute which authorizes the courts you will find evidence all throughout the statute that the judge is the ultimate decision maker that plane is can be placed on this supervis probation as ordered by the court they can be confined in a treatment facility at the discretion of the court the court may impose the judge may revoke unless the court finds the court shell order these people shall report to the court the court challenge from the defendant dollars the defendant appeared and was given a sanction then you've got one hundred and sixty four says august twenty five did not appear and in attachments been issued yes and the plaintiffs have said these minute entries themselves or these orders themselves are inconsistent so they can't be trusted but if there's some mistake in the minute entry by the clerk again then it's a judicial act in title to immunity but  you had sort of a road clerk who just started issuing stuff that the judge did not approve would that person wish to suit that argue window with that person be granted absolute immunity i don't want to  works any ideas but i just started issuing stuff in my name without me knowing about it would that be subject to absolute immunity there is some cases here and looking at a case in the district of new jersey  the clerk of court was immune and they say even if they acted improper improper can mean a lot of things i mean a judge could issue a ruling because they're just mad at the lawyer and say i don't like you so i'm going to rule against your client that would be extremely improper highly unethical and completely subject to absolute immunity the judge might be subject to agreements that separate but couldn't be sued for that but i'm just saying you have a rogue the just issues an order knowing this didn't happen judge wasn't even there that day judge did not order this were judge or ordered the reverse i just think the judge is wrong on the issue that we're offering his right is that person in my hypothetical hypothetical subject to absolute immunity i would answer yes in that hypothetical because how can that be so because the order the entry that there is the order that there is shooing given an order didn't realize that i was no longer the judge of that court and they were following those orders were would i be granted absolute immunity i knew i won the judge i had no authority at that point even you know as the poor clerk you're not the judge and you decide to pretend to be an issue in order and that judges perhaps you think that's ok with total immunity if you compare this potentially your hypothetical to one of the cases where the sheriffs went out and broke and went into someone's house without an order of the court to do that and they said and the court said that they actually were not entitled to absolute immunity that is not what happened here ok that's if you know we don't represent yeah we don't represent this minute clerk so she got it wrong she's a defendant she's not my client are our drug court administrators have every interest in this program succeeding so that they can continue to get funding and continue to help people it's not like their district attorneys or sheriffs or anyone who has some sort of but i will say that if we accept as true allegations in this case is very shocking and not in any way something that can be defended doesn't mean it's not subject to absolute immunity but if you really are trying to help people that are on drugs treating them this way is not going to do that so if there's any truth to what they're alleging someone needs to fix this and clean it up whether that's this case whether that's these defendant separate question but i found it quite offensive the stuff i read again that may not help him win this case but it is something to be it to me what you're saying is contradicted by accepting their statements is true but your honor if you accept her statements as true that might be one thing but if you look at the record a lot of the statement she's making here are not supported by the record for example she told you that the judge said that they should get a good time served and the orders in the record say flat time so i mean i can't i can't sort of committing this entire record to memory to say that what she just said is not supported by the record i understand your concern i would be concerned as well if they were just acting somehow and sheriffs are listening to them no notice was given of what's going to happen no one's allowed to be there no record and people can get six months of prison time out of that that's just not defensible again women have a right to fairness and may be subject to immunity but honestly it's very disturbing but that's not what's happening though there are people there there's a public defender there there's a prosecutor prosecutor there there's a want to have a record want to have an open court well i mean there are minutes and i admit that there are some problems with these men is potentially this person wasn't there when the court called his name and the minute entry clerk writes that he's not in court and then later actually i don't i want to speak on this because i'm not totally totally certain but if they're result then they go back into the regular criminal district court system which is where you have the judge but they don't get to on do the plea th that maybe i say and they try to make this kind of work and maybe six months a shorter than the two that our to plead guilty to but if i enter a plea of guilty i just go back to the regular criminal justice system where now i'm facing a so they do have that you know so it's not that they also don't serve in jail but they're given a chance at sort of a clean slate in this program but i would like to address the the standing issue in this case which is have any more questions we're going to be any good to standing and i think that clearly if in fact they can sue for damages if that's possible and they have standing for that because they clearly have been in and out of prison on these contempt if all and injury that can be a ridge arrest not only are they no longer in drug in jail at all they're they're not in the drug court program it's very unlikely that they would ever be readmitted to the drug court program pursuant to the to the eligibility requirements in the statute and even if they could be readmitted it it's not be clear these defendants who would make that decision again would be the judge who makes a decision on eligibility so it's purely hypothetical that they be a deficiency of the court and arm of the state these are state court employees who are being sued it is the state office of risk management who is paying for their defense and it would be the state who would pay for any judgment it well the last two so there's the six factors and williams vs down area rapid transport how the state law characterizes the drug court as a division of the court its source of funding through the state the degree of local autonomy it's the state court not the parish as they say the parish has said these are not employees or quasi i am laser contractor the parish has no control and the concern of local versus state wide problems the district court found well yeah that they are it two very important points judge grades there is the two there are two orders the problem is they weren't relevant in this argument and they are by judge after they weren't relevant when this was heard but it's why it will be should never be granted in these circumstances judge slagle when he received the motion to terminate the probations and to revoke then issued an order re sentencing them and he said time yes and so the problem was nobody understood how important that was because they were sent off to prison it wasn't until they didn't get the credit when they were in prison that it became relevant that issue is before the district court because the sheriff is the one who wrote the jail credit letters at the instructions of these a pelleas that they shouldn't get credit for all of it and he sent those jail credit letters to the deal c and that's through so that's not an administrative basis do you see responded to it when the challenge was made and said these we rely entirely on the jail credit letters made by the sheriff of jefferson parish s ff the sheriff's along with the discretion how can we well hold these appellate i mean seems like you have a lot of good arguments but against the wrong people know it's complicated judge in fact i shouldn't even be getting into this but what was pending was filed was a th amendment complaint arguing the conspiracy between these a pelleas and the sheriff and the magistrate denied it it's currently on objection to that ruling at the district court level because it became clear what was really going on these are not state employees i beg to differ none of them these are parish people it's the compliance offer it's you got that cli's appeal in front of you right now there is another  to when i was on the state court but i was the court quarter for my court was paid by the county but she was hired and fired by me i did not hire her i could have and so i would say if she did something i told her to she was my direction as a state district judge even though the county dallas county was painter i think she was a hybrid i believe this is a hybrid entity i really do i think that he was parish centric i think that all of these people come from the sheriff's office the come from parish offices and it was a parish program until the only reason why the parish was to was just missed was because when the opposition was filed they attached a contract between judge must on who's the chief of the district court and mr mcnair's l l c and he was the director of counseling so because judge melissa on a contracted with mcnair's l l c who is also defendant one of these administrators the judge dismissed the parish i've been arguing this was a parish based organization from the beginning i still can not accept that in this country and in this state that we can have a court that has no record no hearings no notice no court reporters closed courtroom that's not a court you could have a boy scout meeting in these four walls it wouldn't make it a court what they conducted was a program and every if the probation laws were completely ignored if they were indeed a file ation you would expect that article eight hundred and ninety nine dollars which is the code of criminal procedure article louisiana would be adhered to because that requires that if you go to jail on a probation violation you have a right to a seventy two hour bond hearing you have a right to a probable cause hearing none of that was ever followed it was not a court i very much appreciate but your time