please call the next case he's number sixteen thirty two fifty nine jonathan jones versus hamilton county sheriff arguments not to exceed fifteen minutes or s there are three fundamental principles that should be consulted in construing this ohio statute twenty nine forty nine twelve the first one is when a prisoner serves the time of his sentence he is entitle to his liberty this is the principle that underlies all of the over detention cases that we've cited in the brief if a sentence gives a jail crew credit that exceeds the period of the sentence the sentence has been served the sentence expired joe credits count in the presence in the present they're not like sky miles that count at some time in the in the future or usable in the future they count in the present but the second  principle is that only a judge has the power and the authority to determine the content of a sentence once the sentences imposed by a judge it cannot be added to by prison authorities or even the judge add on to a sentence after the sentence had been imposed i would suggest that underlying this jurisdictional concept our due process considerations which we cited in the in the breeze below and those due process considerations begin with hill versus us ex whopper to ninety eight united states supreme court and of course the third that you can bring an injunction or declaratory judgment action attacking the due process fluidity and validity of this whole system you brought in money damages action and that means you have to come to grips with the eleventh amendment saddam unity issues that the district court identified  ruled against you on and so have i mean so you have everything you've said up to now could be the promise of dec action or in junction proceeding saying this system just doesn't work but that's just not the path says that where there is a sentence of imprisonment in the state prison system that does not apply to a sentence that has been served so that the sheriff is not obligated under that statute to convey somebody to the state the penal institution doesn't wouldn't doesn't the sheriff by the terms of the statute have this obligation after a sense has been issued to send the individual to the prison department of corrections to compute oh only with respect to one who has been given a term of imprisonment in a state correctional institution and where the sentence has already been served because of the addition of the credit to the jail credit to the sentence there is no possibility that one can be sent to prison you don't have a prison sentence your sentence has been served locally in the in the in the hamilton county jail so the statu does not apply to cases where folks don't get a sentence of imprisonment in the state prison system that that's what about the fact the first couple days there's no judgment i mean i know it's unfortunate that this happened it's a good reason for a judge trial judges to move a little more quickly but there was nothing that cuts either way and tell that judgment was senate right it means the judgment that you speak through not oral statements that is correct under state law  imprisonment was in the amount of i think three days instead of potentially five days had the entry gone on the day that the judge made his oral ruling  lawyer brought up the pretrial the jail credit and said he should be getting out today because his credit exceeds his sense and the judge said oh yes i think he should be getting out  today or it might be tomorrow morning and and then they were also contacted somebody in the sheriff's office who unfortunately don't have the name of who he contacted but that day or the next day that now is that day i guess what  question is really about the day after the sentencing hearing did the lawyer call and say hey where's the judge and we need the judgment in order to calculate and get the department of corrections to make i don't think that i don't think the record reflects exactly that no the  you know the sheriff was certainly on notice when he received the judgment that you know we all you have to do is look at that it was a year and a half credit for five hundred sixty days and you add that up and bingo the sense that it has been served by more then course if he pled guilty earlier he would have saved himself even more time in jail is that thought occurred to anybody if he had pled guilty earlier you know the words that's a pretty sensible thing to think about you know what the likely sentences and if you plead earlier and you know how the credit system works your honor he would have saved himself twenty day are you trying to rob us of our civil rights claim by theorizing that the we should have done something earlier well of course that could have happened yes but what did the defendant do do wrong did he violate state statutory law or did he violate yes so he violated state statutory law correct and that gives a right to payment is challenge to his action pursuant to state law saying he misunderstood state law or whether you're saying he misunderstood state law and therefore he wasn't acting pursuant to state law most  most lawyers would if they could even understand that jargon would would think it was the same thing but it's not exactly the same thing is that i mean the whole idea of a state sovereign immunity is that when a state official is accused of violating federal law and especially state law you can't bring a money damages suit so if you take every time that you say well i'm going to sue so and so for violating state law or violating federal law sue and i want to get money from the from the fisc to say well i didn't my my defendant violated state law so therefore they don't get the immunity will always allow that immunity to be lifted i mean there won't be any situations when there's not the immunity because the merits becomes the immunity issue you see them asking why that why the immunity issue hasn't in this case become the merits issue well first of all let me just back up a little bit this year for him one thing county was not a state actor here is obviously we argue because he was misinterpreting the this state statute that he claims required him to transport somebody to the state prison system no matter to me that statement implies that every time you challenge a sheriff who sometimes is a state actor and sometimes is not for violating state law by doing something that he thought he was doing pursuant to state law he's not acting as a state actor well i mean so then the limit is just gone because you're not going to sue them and say you are what you've done is right i mean nobody susan says you're right they got to come in and say you were wrong in a sense they say you were wrong you say well ok you were wrong there's no immunity because the fact that you were wrong means that you were acting on behalf of the he's not required to do this by him by states that you that's what's let's let's let's try this just a little differently let's just say we disagree with your reading state law just just for the sake of argument we read state law to require him to do what he did just that mean you lose in the sense that he's covered by sovereign immunity yes so the case is really about your interpretation of state law and you've got to show us that he misinterpreted it yes but what i'm questioning is whether that is in the and if it is them if it's all if that kind of question is always the merits issues then you're you're just no no no because what would happen is if he misinterpreted it he couldn't get the benefit of eleven the man and immunity but you'd still have to pierce qualified immunity he could still be sued and you have a question of whether he violated federal law and if so whether it's clearly established so that's what the second inquiry would be i think so well you still have that problem you've got quite a few hurdles you've got sovereign immunity if he read the statute correctly but if he didn't  detain somebody after they have served their sentence and that is the why not why isn't the answer simple as this forget state law people are all the time claiming that they're being asked to serve prison time they shouldn't serve you need to centralize within the state one place that decides yes you are more time you don't more time and that's how high i was done it doesn't sound like due process violation to me it sounds sensible i hear you i respectfully disagree i think all the good morning your honor say please support pamela sears with him to county sheriff in his official capacity only are obviously the arguments are set forth in my brief but what i would like to say that some of the flaws that bothered me about this case almost since its inception and some of which have occurred to me as recently as a couple days ago when i was reading and reading some things to come to talk to you one is the misconception and the mistake if you will in mr newman's argument that mr jones the sentence was quote served close quote it's clear in ohio that there is a construct that is not ambivalent and not confusing as opposed to the tennessee construct which the court dealt with in the shorts case in ohio when you are sentenced to serve a term of imprisonment at the ohio department of corrections the sheriff has certain statutory duties the judge has certain statutory duties and oduya arcee has certain statutory duties and they don't parole authority has certain statutory duties all of these with the perhaps exception of the judge obviously are creatures of statute so they are they are a strange system though that when the sentence is being issued i mean let's just put the side of it strange the judge didn't issue the judgment right away which obviously should've happened here but it seems very strange under ohio law as i'm understanding it that the defense counsel can't say to the judge ok we got it that's why we pled guilty we pled guilty because we knew the sentence would mean it would be less than what was owed and we'd be out of jail right away and the judge then instead of saying yeah i hear you you really shouldn't have to go to jail but i need to still send you one hundred miles away and let this other set of state bureaucrats do the computation and i just seems really strange to me i mean when i why would why would we trust the judge not the defendant trust the judge to figure out whether time still owed is it really because that comes back to your point i think before this process they're not i always questions are not answers no no no i understand i tend to view this more as a conversation with you so when i'm saying this what i'm saying is your comment to mr newman was this is not and i read it as and my feeling is it's not an arbitrary and capricious system it's rather lee rather an orderly system which deals with thousands of people monthly through this process and so in order to not be arbitrary and capricious there are steps that occur so it's all a computer system and that all this happening is you're going to this other state agency which is going to look at the same computer system you would think the state judge has access to know when i walk with them i don't give them when i give them access you don't trust the judges to get this right oh i'm good i'm so they answer that question whether i touch trust judges i'm just teasing of course there we have bureaus of computation as you well know and as you know occur also in the federal system and as a matter of fact i cited a case in my brief where the supreme court specifically said you know it's district court district courts do not have the authority under federal law to apply a credit it's not their job to apply the credit it's not their job to give the credit even when they think the credit is due and the person would be released right away rather it's the attorney general of the united states that has that statutory duty under federal law and so i would submit to you that ohio system is reflective of the very system that you operate under so the idea that the judge would be releasing people in terms of determining whether or not they have federal detainers whether they have a detainer from iowa whether they have what if the plea agreement worked this way yes the defense counsel which it turns out here was almost in malpractise and should have done this twenty thirty days earlier because the client would have gotten released even earlier so the savvy defense counsel goes to the court the prosecutor and client and says listen  pretty coffin if we plead guilty now time served we'll get him out of jail right away right but we only want to do that if he gets out of jail right away you're telling me the prosecutor in the state court judge can make sure that happens they're still going to say no we still got to go one hundred miles and so forth yes i'm telling you that if he's sentenced to prison time as opposed to local time if you wanted to sentence him to six months local time in the county jail under the ohio statute it would be the jailer that would have in this case the have told his client what the actual law was when he enters a plea particularly a savvy lawyer that worked as an appellate counsel in the able to county prosecutor's office that's my own opinion so what what sort of in the record but maybe not apparent is the player prior plea bargain was five years mr jones wasn't interested in doing five years so what happened over a year and a half was a what i view as a purposeful cation of the process until they were everybody down to get credit for time served now he didn't get credit for time served and to give his last lawyer credit for getting him to plead to that but to your question to judge what happened was on february third the judge issued its sentencing in open court on feb fourth according to the record and according the deposition of the lawyer he called the sheriff's department and said you know my guy's supposed to get up on the telephone doesn't remember who he talked to then he told me in his deposition you know then i wouldn't talk to the judge and my question was after you talked to the judge what happened anything you know so implicit in the record is i had this conversation with the judge but the judge didn't issue an order to the sheriff to release him that would have been a more complicated case for me there is no highway attorney general's opinion on point where that exact same thing happened and the attorney general sort of waffle like you have to follow the order of a court but you're really supposed to follow this statute so i don't know exactly what to tell you what to do but that didn't happen in our case to make sure my understand yes or is there a way to have a plea agreement or not well for example if this sentencing judge would have said credit for time served and the credit had not exceeded the time of the potential sentence yes but if you if you have stayed in jail for a year and a half and your credit is for a year and a half you have got to be determined by the they have to apply your credit they have to determine whether or not post release that controls the post release control sanctions are appropriate and matters somebody i can envision that you could if you were cognizant of this process as you well should be if you're if you're defending criminal defendants in ohio that you could fashion a plea bargain that would provide for that the outlier though is and it's in the record is the state cannot confirm guarantee for the county that they would process this person through their system within less time than it takes the sheriff to put him in a car and take him to columbus so because you have that hour liar of the state of ohio which obviously the judge doesn't have control over the sheriff nor the defense counsel i don't know that unequivocally i couldn't answer that question in the affirmative because of that variable now what's interesting to me is the impediment to this man's release was not twenty nine forty nine twelve his transportation the impediment to his release was twenty nine sixty seven point one nine one which is the of his time against a sentence the thing you're talking about there there yes yes so he could have stayed i guess arguably he could have sat in hamilton county jail and the county could have fed him and clothed him and taken care of him until the state of ohio credit in him his time i don't know when that would have occurred and neither do you because we don't have any of that in the record ideally that may have occurred on our record the afternoon of february sixth which is exactly when he was released by the state of ohio so we were looking at who is the proper party here it's not the sheriff had the sheriff not transported him because just process right and we're just waiting for the state to  process together and he sat milton county till the afternoon of february sixth the difference would have been he would have walked out of the hamilton county justice center got a cab instead gotten in a bus and come back to cincinnati that is in fact the only factual maybe i miss guided i'm just it just seems like what we're talking about is the content of state law that's what they say they were making a claim that he violated state law and you're saying it's not a violation of state law and there's no federal law that makes it unconstitutional either so it was legal what they did that to me sounds like a merits issue dealing centrally with state law which if you're talking about a state actor you might be able to  the injunction suit or you might be able to bring it to claire tory action or you might be able to bring a action against the person and ins of individual capacity but none of those are before us all we have is a money damages suit so it's immunity or not or governmental immunity ending on who you're suing it's a little hard you know now you if this person was clearly a state actor yes because he was acting because he was you know the state attorney general or somebody who was unquestionably acting as a state actor we wouldn't be getting into the nitty gritty of whether he was following state law we would just say he's a state actor they're asking for damages penn hearst says you can't do that under the eleventh amendment you got to bring an ex parte young action or something or out of qualified immunity but here we have somebody who's a sort of somewhere between a state actor and  so and you're representing the county yes sir i am because that's the that's the entity that's been sued and this little person has been sued and isn't in in his official capacity and you're using a defense which is based on the idea that he's acting on behalf of the state absolutely and all of those immunity doctrines are based on the idea that it's out of the state absolutely coffers that the thing is coming absolutely my question what is the content of this doctrine that says that sometimes when you sue a county sheriff is that what he is yes yes sometimes when you sue a county sheriff you are in effect suing the state yes sometimes you aren't does that have to do with whether you're carrying out state law at the time or does it have to do with whether you win on the merits or not i believe reading your law that it has to do with i believe reading your law brotherton godfried and crabby i believe in reading that law that the legal question is the extent to which the state law provides that county official discretion and judge sutton's wrote the opinion in krabby which dealt with that d n a sort of  i think reading that case puts it precisely on point what in this i'm sorry what does that mean and that means that we do then have to look at the merits of whether he's violating state law in order to determine whether they're sovereign immunity and so although we're talking about sovereign immunity we're just talking about the merits or is there some difference i guess perhaps i'm i'm not completely understanding but the way i hope this is an answer to your question the way i look at it is it is it is somewhat a mixed bag of fact in law so we look at the law the law in ohio says if you are sentenced to know a sentence in the ohio prison system the sheriff shall transport you within five days of that judgment that to me sounds like merits of whether there's a violation of state law i'm i'm afraid maybe i'm not i'm not understand your question i apologize this question is they are the same because if the arm of state doctrine is the way it works is whether state law compels yet local officials to do something that by definition is a state law inquiry as a threshold matter yes so we we look at so one of the doctrine we agree we look at the merits of the issue to determine whether we have immunity with respect to the merits of the issue and maybe the merits of the issue are going to comply with state law  a right and does the state law provided many discretion when when is this doctrine ever applicable if you say that you lose on the merits why do you need the immunity and if you win on the merits well because he's not as he's not a state official he's a county official and so if he's not performing under a state law that that gives him no discretion then he doesn't have eleventh amendment immunity he might have soon as individual bassy some qualified immunity or something like that but he would not have i'm sorry the money coming i guess from the county them i understand that in some quarter and in other cases the analysis is are you a county are you a state actor or not we made that argument with our courts for example and this court has said you know we need to look at where the money's coming from i understand that i don't believe that that's applicable here what i believe is applicable here is brother ten godfried and the crabby case if i'm if crabbe if i'm however i'm pronouncing it which says when a scowling official is performing a function compelled by state law which does not allow that county official any discretion then he is entitled to or she is entitled to eleventh amendment immunity and it really makes sense because the source of the injury is the operation of state law the source discretion it's well and maybe that's where i was misspeaking thank you your honor the question the legal question is does the law afford the actor discretion if the law ford's the actor no discretion then there's qual and then there's excuse me a letter from understanding one part of this case surely the original complaint which i don't have in front of me yes or the original complaint raises federal constitutional claims yes ok so that's the underlying issue in front of us it's not a claim for violating state law the right that claims the issue about filing state law comes up due to your defense under the arm of the state doctrine but there's still an underlying federal constitutional claim here right right which is the federal constitutional claim depends entirely on the state law because it's not an overstayer an over over what it was which we can also been something that's bothered me from day one which is what makes sense that if we are maybe maybe it all just a trick determined by state law but you can see why it's puzzling when you normally think of state sovereign immunity as precluding us from getting into the merits of the state law yes that's how i understand the land might immunity is all about right and then again that might know they had immunity because he's actually a sheriff of a county the let me just restate if i may the formulation here federal law makes it unconstitutional to detain somebody who sentence has been served once the sentence has been served you're intitled your liberty secondly the sheriff was not and you would say even if you follow state law it still violates federal law in other words yes in any case where the sentence has been fully served as the sentence will clearly was you know after the judgment entry goes on you have a due process claim to your freedom right so in one sense you have to deal with the meaning of state law when it comes to the arm of state doctoring yes but in another sense your complaint has nothing to do with your complaint is listen if someone is supposed to be out of jail they get their liberty right of getting out of jail and whether that's consistent with state law are inconsistent with state law it always violates the federal constitution i agree your honor i just  law violation is not an overt attention them so i understand it's a federal law issue but it's a federal issue that depends on the present and state law it's not well it's not the case that if they complied with state law and it wasn't over a detention that there's that there could be a federal well or is that right the question the argument they're making is that somebody besides the the judge is empowered to count up the to interpret the sentence right yes and they say that only the state department rehabilitation is capable wonder state law of determining when the sentences been finally served they don't give a timeline as to when that must occur but i would suggest if they're right hypothetically if maybe i'm misunderstanding it's in response to it's in elaboration of judge sutton's question if they're right on all those state why you don't want to explain why because you don't mean to answer what you just answered say but those statements let me just make sure i'm not maybe i don't understand i could be the wrong person doesn't understand your argument i thought your argument was listen at least an alternative part of your argument i don't care what state law requires a state law says send them to columbus for a day state law says you can't do anything until a judgment standard if my fella stayed in jail five days longer than he should have stayed in jail that violates the federal constitution i don't care that state law required it you can't yet have a stupid system that leads to this kind of result that's ralph violating due process i agree with that ok that's what i thought isn't what you are you in your breeze for you say we're not making a constitutional argument we're making a state law ar e was a judge cook decision and it's closely analogy analogous to our situation in that case the house supreme court held that where there's a cap on post release  sanctions you've got to include both jail time and and prison time not to exceed the cap otherwise the house supreme court said if you did over to detain somebody it would involve eighth amendment constitutional considerations so the white house supreme court it was very sensitive to the over incarceration over detention concept  raising the very due process argument that i'm trying to articulate not very well in this court thank you notes base will be submitted