appellate morning may please the court my name is linda webber i represent judge dean evans in this matter i'd like to reserve five minutes for a bottle of wine i know the court is familiar with the facts in this case and the allegations i want to narrow the issues if we could this morning as you know there are two exceptions to judicial immunity the absence of a judicial act and the complete absence of all jurisdiction the trial court here acknowledged the judge evans acts were judicial so the focus is on jurisdiction and we will look at the basis here for the trial court's holding there was a complete absence of all jurisdiction there was no dispute the judge evans as judge of the common pleas court gallia county has subject matter jurisdiction over felony cases there is no dispute that the orders were issued in pending felony cases with the court's caption for each individual case whe appear in front of the judge again yes your honor i think the case would be very different why because the court this is why the trial court went outside of its analysis for immunity purposes because the focus is on whether the judge had subject jurisdiction subject matter jurisdiction in each individual case judge evans issued an order with an individual caption as to each individual case and ordered  counsel in each individual case so the question is was there subject matter jurisdiction over that case it's certainly had the effect that you're speaking to judge of an order that would not allow mr bright to appear in all of those cases it didn't impact future cases it didn't say that it covered all of those cases each individual order well a blanket order would presumably impact any future case regardless of who hired mr bright to represent them or what the circumstances might be in the future as judge evan said in has  concern was that mr bright could in any future case raise a conflict he didn't say there was a conflict in all future cases he didn't say that his concern would be a concern for all future cases that was his concern yes defendant the names of the substitute counsel i can't claim to read every single order your honor but they were essentially very similar orders and do you orders is seeing that because of counsel's behavior is in questioning me as a judge i am concerned that he will raise the issue in the future in the end and i cannot maintain the appearance of impartiality and therefore i am  removing him from all the cases or do you read it as including a finding that the lawyer did something improper i don't read it as a finding that the lawyer did something improper nor do i read it as family questioning the judge i read it as judge evans seeing that he would probably have a conflict with this particular attorney given the language and the tone of the motion that was filed by mr bright manske in the question because we know what we do know is that there is some authority in ohio for a judge in a proceed in to protect the dignity of the court and remove a lawyer from a case for misbehavior separate apart separate and apart from the supreme court disciplinary procedures but i don't see anything in the order where the judge says anything about improper behavior and protecting the cord and all of that i mean it seems to be saying that look this you know this relationship has really come to a point called point where he just should be practicing in front of me i think it was not it was more anticipating that there would be a conflict in the future which would impact the ethical i don't know him move by a conflict in the future they that i just that a conflict in the future that the lawyer might claim that he's not being impartial yes when the lawyers have to in have to assert that yes in the client i mean that's the part i don't get i mean the lawyer would have to say look judge you can't be fair in these cases i think what is easily distracting in this case is looking at whether we would agree with judge ev order and the actions he took as mr bright pointed out in his brief the ohio supreme court has already addressed this from a disciplinary standpoint which was the appropriate venue for questioning whether judge evans acted appropriately and he is already living with those consequences of a one year suspension stayed but in an immunity case the focus needs to be on whether he had subject matter jurisdiction or whether he acted in the complete absence of all jurisdiction or it is true that we have to deal with the immunity provision and him as a part of it determine whether or not affection for feed it not exceeded by whether they were with him from jurisdiction and we have to look more broadly than just whether he had on the lawyer activity if which is something that if within the purview of the ohio supreme court the different lawyers because even though it may have that effect what the judge was saying that he was concerned that mr bright would raise a conflict in the future so these orders were certainly subject to being withdrawn by the court they were issued in each individual case i don't believe that it was discipline your honor i believe that it was appeals in each of these cases i don't think being difficult means that you don't have the remedy of appeal he certainly could have brought a writ of prohibition which he did not and all the cases that have gone back and forth in these briefs really do address  writs and prohibition and so this is a new issue in ohio in the six circuit for this court this context in as an issue of immunity not an issue of whether a writ of prohibition would have been proper so i have found two cases to be helpful in sort of guiding us in that direction one is not cited in the briefs state x rail curragh k u r u versus h w a r d seventy five zero how up third to forty four it was also in action in prohibition it was also a case where where the judge issued an order that did impact a number of future cases and the court said the tenth district said the judge's actions may well fall outside the quote jurisdiction of the court but this court still needs to decide whether that constitutes an absolute lack of jurisdiction for purposes of the writ and there was no absolute lack of jurisdiction because the court had jurisdiction over disqualification of counsel under the appropriate circumstances and the writ was design do you want to just give us the name of your other yes if we can just or i'll just take one more minute if if that's ok and just say four minutes for rebuttal done versus kennedy is cited in the briefs it's a fifth circuit case it's an immunity case where the attorneys sue the judge in the court administrator claiming his removal from the list of court appointed attorneys violate his constitutional right similar to the issue here in that case the judge was held immune because the decision to remove the attorney from the list of attorneys who could act in the future was a judicial act within her jurisdiction thank you you thank  on the fact that i represent a guy who works for for a public defender group that's his whole livelihood he gets canned from every case they the public defender corporation the commission the county then fire him he has no asked about whether there was really discipline here whether this involves sort of a prediction of a conflict and i think what helps is that we are not challenging the removal of mr bright from the gleason case that was the actual case in which he filed the motion he then quickly tried to undo it not to no avail but yes the judge had the power to take a mock that case and the judge did that and he did never been sued had that ended  but in those sixty nine other entries he says further due to the court's inquiry to the office of disciplinary counsel of the supreme court of ohio regarding mr braids conduct and he goes on this is the judge speaking saying that he does think that mr bright has done bad things so bad that he has now filed with the oh how disciplinary counsel and he publishes that and sixty nine entries and says because of the as things i'm not going to let this guy practice in front of me in any of these in any of these cases that's a document forty three page number for ten so what we have is a blanket order identical orders in a bunch of cases all the cases in which mr bright was practicing and you have the highest level of intimidation of a public defender you could ever see a man says i disagree with the rules you have judge maybe he didn't say it the best way but he files a motion disagreeing with the rules of the judge and the judge takes them off of every case that is an act in the absence of al jurisdiction because those cases the big problem is if the judge did this in a case by case basis as opposed to issuing a blanket word or is there not take seventy cases let's say mr bright filed out re just scandalous pleadings in each of those cases and let's say that there was an individualized determination that you are out of bounds buddy and you got to get off of this case different case not here you're saying that judge evans should have waited until each of those sixty nine cases came up to him later in the year whenever absolutely then said the same thing that attorney bright has misbehaved in judge evans view and because of this judge evans cannot allow brite to continue on the case only if the ok only if mr bright miss x with outrageous conduct in each of those cases he can't use one act and discipline  sixty nine cases and force him to lose his job well suppose a hypothetical that the lawyer has lied in a case could a judge not say if the lawyer is representing criminal defendant could a law judge not say this lawyer has lied in case number one and i'm not going to allow this lawyer to represent a defendant to because i know this lawyer is a liar no judge can't do that that's what they have supreme court for that's why you file grievances you let their then you let a full investigation go forward you have an independent body that makes a determination and then that lawyer is either sanctioned or not a by the powers that be but the judge because of an alleged act in one case can't bar the man from practicing in front of them in all cases that's discipline that's outside history of question so i'm glad you used the word jurisdiction because the question is is it within the judge's jurisdiction to do this even if we might think that judge was totally wrong  we don't we're not a review court for the ohio court so we have to you know hold our nose when state judges or others do really wrong things as long as it's within their jurisdiction and the answer is that it's not in his jurisdiction and one of the ways to test this is well what relief would a person have in that instance and we've heard about well you could do a writ of prohibition if you've got a vigorous boss who's going to get who has your back yes that's possible but that's not you can't rely on that you could appeal the order what criminal defendant says lawyer you know timing out for eighteen months while one case and then trying to apply it to a bunch of cases that's an action in kind of in the absence of jurisdiction and even though you could academically design a way to challenge it one of the that this is action and act in the absence of jurisdiction is that it doesn't involve anything in that case he's taking an act that has absolutely no connection to the case in front of them that the man's just discipline is first that we have want to act which by the way is a pleading that the judge took offense to that actually it wasn't sort of a personalized thing it was just these are bad rules but  protected first amendment conduct so we have one act that the judge doesn't like and he applies it to a bunch of cases sixty nine cases that are not at the moment pending in front of them for action and that have nothing to do with this this act and the judge chose the reason that you can see that is discipline is that the proper way to do this under the structure we all work under is that the judge should recuse himself if he has a problem and doesn't think he can be fair to the to the lawyer and the judge stipulated to that and is being disciplined for failing to recuse himself and that's what the a has supreme court decision says  twenty thirteen westlaw six six seven nine nine nine so rather than recuse himself he then tells the lawyer you can earn a living you can't come before me the only judge in galilee a county and that's  ohio disciplinary ruling and if you could give us that fight again twenty thirteen with six zero six seven nine nine nine eleven one nine hundred thirteen it is in our reply brief in the other attorney bright or have or say anything i am sorry that i don't have that ruling right in front of me actually they kind of indicated that it was ok for me to be here i think this is from their decision judge evans actions or wrote the public confidence in the integrity and impartiality of our judiciary but is miss conduct resulted in a more concrete injury to bright who lost his job as a public defender and his privacy protections under rules for the governance of the bar five eleven either judges misconduct also likely harm to brand rights clients who did not request the removal of this of him of him as counsel so there has supreme court is sort of recognizing the brights out hanging in the wind because they can't order any relief for break there do you have any cases that deal with one thousand nine hundred three damage actions as opposed to asking the court to vacate the judgment because of the disqualification or whatever because the judge like yours diction to do it i mean i'm asking like a word jurors as we know as we're constantly taught has too many meetings but you could see where a court in a in a in a supervisory proceeding would say no judge you don't have the jurisdiction to enter in order like this this isn't disciplinary order the disciplinary board has jurisdiction over disciplinary matters which i think is different from saying that no this is an extra duty judicial act for which you do not have immunity so are there any cases where you have damages awarded well i have certainly sued judges for an acts that were not within their jurisdiction most typically actions where they're run in a juvenile facility and they're acting as administrators or they've engaged in sex harassment and they're acting as a boss here and those are nine hundred eighty three actions we see the judge for damages for and for something like this for disqualification well think or anything related to that it doesn't happen very often so good news there but i think the law that we use in these other contexts applies and certainly the law of retaliation applies if not a chance pardon but was he acting as if not a judge will be a perhaps a bad one at that point he had the power some of that by virtue of the fact that he's in a small county of thirty thousand people in is the only common pl and what he says goes and that's why this is ultimately there's a lot of facts to be done here only on the pleadings so this case ought to go back so that we can find out why how is it that whatever he says goes why didn't somebody just say no you know you can't do this is have the power to issue orders in their cases and then the disgruntled people can appeal that's the way you deal with bad judge orders so so you know to make the argument against you this judge issued sixty nine separate orders in sixty nine separate cases and so the people who are unhappy with that should appeal now you've made a practical argument which is that these clients want to get their criminal cases dealt with and they really don't care whether it's attorney bright or some other attorney who's representing them so they're not likely to appeal but that's a pragmatic argument but but aren't judges under the absolute judicial immunity entitled to issue orders in their cases no matter how wrong they are and then wait for the unhappy person to appeal not if it's a sham and that's what these orders are so what is his best case is there a case ever that says that the judge's order is a sham order and that a nine hundred eighty three action is the way to go i'm not going to say that i have some reported decision on point but the cases that we've cited and the use of one nine hundred eighty three against state actors who abuse their power generally certainly fit this situation and when you see that every one of these orders doesn't reference any misconduct in the sixty nine cases and only references the misconduct that came to light in gleason case you have the confidence of knowing that the judge truly was an acting based on anything that happened in those other sixteen but my hypo about if the judge if hypothetically the lawyer is shown to be a total liar in case number one why wouldn't a judge when in the person when the lawyers representing criminal defendant why wouldn't the judge be able to protect those criminal defendants in that hypothetical case where the lawyer for those defendants has been shown to be a liar in case one because the judge had to because that's not the way the system works and in fact the judge has an option to go elsewhere and the judge can't be the prosecutor and the judge over every set of facts that might involve a lawyer the judge can if the lawyer stands up and starts lying in another case yes but the only way  over which the judge has jurisdiction thank you thank you just have to hold your nose as to the judge's actions as this court and the u s supreme court have said many times judicial immunity of plaque applies to acts performed maliciously corruptly acts performed in bad faith or with malice the point of judicial immunity is actually for the benefit of the public not for judges because it's in the interest of the public the judges need to be free to exercise their judicial function without fear of consequences like this lawsuit to hold otherwise would have a chilling effect on the judge's actions where he or she would have to consider not only the law not only his or her own ethical concerns and control of the courtroom but whether a litigant in most cases or in this case a lawyer is going to sue him or her for money damages thank