record of this case both the record that was developed in summary judgment as well as the record that was developed at trial in this case there's one glaring glaring fact or lack of fact that exists from the moment that judge downs will brought complaining that the court remodel project in bullhead city was illegal up to the time that she was fired she went through a number number of employment actions or experienced a number of to seeing her full time position withdrawn ultimately already in the court i'm sorry your honor it was just all raised in the court lou this was all raised in the court below and the one interesting and to my point the most glaring thing that exists is that in that whole process occurred over three or four months not once did the defendant judge stringer mention anything about the budget being a part of those decisions and when it came down to judge downs well brock being fired the judge judge stringer again said nothing about the budget in fact she said nothing about the idea of restructuring the court my point in this case is that the idea of decisions being related to a budget or the idea of decisions being related to some type of policy decision to restructure the court those types of arguments and those types of positions did not occur until after this became a l e they're looking at this thing and they're seeing where the money is and where there's money for this and money for that and they don't happen to put money on a full time magistrate mission and that's why there isn't one and the end of the day  and i want to be real explicit about this the city council is the legislative body and i agree with you they don't just rubber stamp these these budget related decisions the problem in this case is that that is that judge stringer went through the formal legislative process of presenting the full time magistrate position and did that for some very good a historic reasons this is a city council that approved one hundred fifty thousand dollars to create a second court room for a second judge judge stringer provided written justification for this full time position explaining why it was financially beneficial to the court why that was what you know that legislative body would probably want to have this second the choice in other words they had been presented the option of deciding whether we want protagonists whether we want an assistant part time magistrate or whether we want a full time magistrate but because of what judge stringer get here by presenting a formal full time position in the legislative process but withdrawing it secretly outside of the legislative process she's acting in a peculiarly non legislative way she's actually depriving the city council of the opportunity to consider that know and i'm going to try my client was just going to get an answer that my client was dismissed from the part time position a position which by the way was approved by the city council was funded by the city council was not a lemonade and that's undisputed at the city council you know just something so if we go on to have our wrongful termination case and we go in front of a jury and say she she should have that she was fired for retaliation or snack or by immunity we want damages for it my argument at that time is going to be that her damages are based on the full time position because more likely than not and so the evidence that a position would have been approved but for a judge stringer withdrawal of the full time position would have eventually been an evidentiary issue on damages and may also have been considered an adverse employment action for purposes of the retaliation i never got past that basic trial stuff because the judge judge said like applied absolute immunity and and it was not presented in the summary judgment phase for those purposes judge rosenblatt allowed some of that evidence to end during the course of the trial but again not for not for the purposes that i that i would have originally used it for if this was a wrongful termination case and it and the only reason it was a wrongful termination case is because of the absolute immunity ruling and therefore when we look at the full time position with the draw i'm just really focused on the character of judge stringer's actions and this is what i find particularly disturbing as a judge stringer goes etc are really irrelevant are they not and i have to agree with that that's the law so the question is is this is this process of preparing the budget if we're going to if we're there is down and just to limit evil reasons and it's just too bad here where we're instructed not to include motive but i think sometimes people's motives and the way they execute what they're doing will translate to whether or not they follow form a legislative process or whether they observe the traditional hallmarks of legislation and this circuit that's two out of the four factors that the court considers the immunity unfortunately it was and i don't think there's a single case in the country under facts remotely similar to ours that have come to the same conclusion as judge said wake this this this termination occurred in a letter that said you're just not suited for the job the position remained the position was funded and approved by the council and when it comes to full time we're not necessarily talking about creating a new position we're talking about funding a part time position into a full time position and maybe that samantha accent but that's that's really the practical way it works you know the thing about just letting us do you know that's really true then although sometimes can people make more money than full time people is for the question but that's really true then if indeed there is no legislative immunity point the terminations sell it sounds like time and i think it's almost you know it's it's beyond contention that that the the terminations without a limit in their position is not covered by absolute immunity i mean when we if we're going to follow back or back a case in the circuit we've got to come to that conclusion but if i look at judge stringer's activities associated with the with drawl i could look at this and i could say hey a clerk who's involved in the budget process for evil motives wants to just get rid of somebody and in the they just take that person's name out for me to say that that's legislative immunity just as it happens not really the same thing here we're talking about someone who isn't considered to be the final policy maker at least for her department we're not talking about  been a final policy maker doesn't make the legislation legislator and i agree that my examples different than a clerk but let's also then create another example where it is a manager who who doesn't make serious employment decisions and decides for a bad reason that i'm going to get rid of this person are we going to create a rule of law especially or that would be promoted on the facts of this case where they just wait till budget time and they just and again not even following their own cities or counties process they just take the name out of the hat and say well it's budget time and i'm  the decision and those other factors in this case you don't have any of the factors you do because the part of the year you're trying to limit at the city council but bogan makes it quite clear this is not just limited to the city council it's the people doing the budget everybody in a city knows that that's what the bank it's about it's not some clerk striking and i will because it's a cop i don't have much time and it's a complicated answer i would direct the court to my my state law immunity because i am concerned that the district court judge and defendants have come to an erroneous conclusion and that is that state court immunity is guided by the same standard as federal court immunity and in doing so both the district court judge and the defendants have really sidestepped arizona law on this point it is not the same and it's not even it's quite frankly not even close state law immunity requires legislative decision not legislative in action it requires decisions more than that that deal with entire regulatory skiing's and not just implementation implementation of just operational decisions or finite decisions it place the court i'm susan freeman and i am appearing on behalf of judge stringer there are two determinations that were legislatively in new one was the determination not to include a full time budget because being legislative does not depend upon whether something is in the budget or it is not a legislator the only way the only way she gets a legislative immunity if i understand the law is when she is involved in  choose to hire somebody congress or united states continues to allocate funds for the position we choose off to spend it but that's precisely the point you're under here the position was eliminate this is a case in which very little happened she was unable to attend a budget meeting you know she was she says she was slighted she says her i was work for a short period of time and then what she was told what the jury because we think very much this dri already awarded damages against us for her being fired for her receiving zero hours ever again the fact of the lost wages is that the most they could argue for by way of lost wages w work with instructed by the court if you can only be three thousand you know i'm talking about the closing argument your honor and if they have seventy thousand dollars of emotional distress that's not emotional distress from not being fired on the evidence with respect to her not getting a full time position none of that was supposed to have come in and yet it came in them unless she argued from it and the jury  more mistaken than the other and that often happens because they don't really hear what's going on and sometimes complain it's just one of most of their dues just going out and bag your honor i believe that that's exactly what happened with respect to state law we have two state law immunity statutes there so i did in our briefs and they do in fact encompass precisely this kind of determination of the state laws that suits provide for legislative immunity common law legislative immunity which means that all motive and intent are out along with any other kind of legislative immunity case and there's also a statute with respect to public entities not being liable for after a missions including the exercise of a judicial or legislative function and anything that involves the determination of fundamental policy which spend existing resources including those allocated for facilities and personnel all of that it's within the scope of immunity under state law lets you know if your client just decided to go to protests and after trying to for months later we can go back to some of their employees if we want to to start a new employee yes you would still have a legislative determination because that's how to how to ask the court what happened was that this is a person who was formerly on the council and from my client's point of view the way she was handling this was to keep trying to undercut judge stringer and to get herself replaced judge springer's job that w case were not viewed by district judge said wake and by the defendants in the light most favorable to my client this was a summary judgment decision and that's what should be done and when i hear judge stringer being called a legislator i think to myself  then why is this position and why is that why was it created by the city council why is it only the be taken out of the budget by the city council why does the city council have to approve where money goes in the light most favorable to  us the city council is the legislative body and not just a judge stringer albeit she is the supervisor of her department and when i look at her withdraw the full time position i say to myself the same thing what is the evidence that she engaged in  legislative process just because she says that when you say that she did at one point that it was the firing that she ceased to do it she didn't fall of so in practice i've never i've never conceded or believe she made an act within the city's legislative process any time at any time she she withdrew that full time position and in fact if you look at the record your honor there really is no explanation of when it occurred how it occurred there's no documentation of it it just happened at some point in time that we don't know in a way that we don't know and how do you jump to the conclusion and the facts most favorable to my side that that has the hallmarks of legislation or that it is the legislative process and even counsel said that if that's an obvious farce it shouldn't be covered by legislative immunity if we look at the facts of this case it isn't judge stringer's comment that she did things because of a budget or because of or because of restructuring isn't that exactly that an obvious farce on the issue of terminations i i think that the record preparing for this real closely obviously with the briefs i did not mention terminations and tell we got to a meeting on november twenty first two thousand and three with the judge as the defendants were about to begin their case and mr cohen said he was going to raise the issue of when the termination occurred because they didn't want to pay for the zero hour cut they did last judge said work to rule on that that was a damage issue for the trial and because they didn't bother to ask for summary judgment it became a fact issue for the jury but the comment on terminations did not occur until they opened the door i was careful about