dash thirty three sixty six mr ashford please the court counsel my name is timothy ashford and i'm a pro se appellate in this particular case and as i walked in i noticed there were some pictures of judges on the wall some of whom were african american and let me get right to the point if the douglas county panel who's the pelly in this case had to choose your judges there wouldn't be an african american on that on this panel does this court  african american attorneys on the panel to accept murder cases in douglas county after you review the case law the answer is yes and the case law referred to is michel the fishbein which is the only case which applies in this particular case michel is a case out of new york and it has to do with a black attorney who was did not see on the panel to accept murder cases and by the way this is not in the record but when i filed this particular litigation a number of african american attorneys including me started to receive misdemeanor appointments from based on incorrect law that's not telling me anything but let me tell you the michel the first bird was an african american attorney he was banned from a list like me and he made a complaint i wrote an article is douglas county court racist and the reason i wrote that article with douglas county court administrator and you requested that you be listed on the panel for murder cases in particular and and then the you allege that you didn't get a response but it is correct right correct now what do we not need if we don't know the response has it been alleged here that you've actually been denied denied a spot on that panel right now on the panel because here's how it works they have you selected for two particular cases a misdemeanor in felony then they have you in another class felony and murder i haven't been changed to that felony murder class so the injury to me is still ongoing this is based on a violation of my constitutional rights and the court incorrectly dismissed this case with prejudice based upon their case law they said i failed to state a claim which i properly did and i believe is the first to memory complaint paragraph forty eight now i found out a motion for  for us to argue the apple e basically stated no argument is necessary us to be here and this is probably the first and only time you go here this i really didn't want to be here you're either going to give me my constitutional rights or you're not now before we spend the next thirty minutes asking various questions about the case law let me get right to the point none of the pill these cases apply to my case and let me summarize  for you they argue judicial immunity the lawyers filed a lawsuit is all these cases had argument for judicial immunity that's what they see it and it applies in my case they were on race or constitutional violations she had the davis v tareq case in that case a white me and filed a lawsuit based upon the fact that he wasn't part of the good old boys network he didn't claim constitutional violations correct for sure but what his argument was and that's why they dismissed it i'm not part of the good old boys network the other one she uses them around this case which is supreme court case and that was based upon the excessive force by the judge a white man somewhere was doing something with the judge and they got into a dispute and the judge sent the police the getting and the police came back and brought in and he found the ninth circuit agreed with that attorney and the supreme court put it up to see if we are not going to have this nonsense that wasn't based on race but when how how it seems to me we've got this interesting sort of situation where you've gotta a panel decide making these decisions right yes that's what you call it the panel it's all called the panel selection committee it's this combination of judges and lawyers  how is this the same or different than simply appointing a individual a lawyer for an individual case which i think arcade the case law is pretty clear that's a judicial function judge says you attorney x are appointed to represent defendants why how is this panel selection committee like that or not like i'm not familiar with their poll process but i could kind analyze it basically they put you on the list the lower list for the blacks the misdemeanors and felonies the higher list for the white white male attorneys and some white females which is murder and of felonies so that's the only way i c analyze it and when it comes up they'll the point you based upon what they put you with your lower class or your upper class i'm still not on the panel to accept murder cases in the breast of to be able to have a murder case you have to have a long license that's it you don't have to have a nice we're not especially state where you need to have some kind of specially to be abraham a particular case and basically they grandfathered in the evidence if i got  association standard is no one i'm sorry let me finish the american bar association standards for i think it's effect of death council do you know if nebraska follows those some states do some states don't worry about it's not important i can answer but do you do understand i did file a motion to take judicial notice and i don't know if you had the opportunity to review that that motions been taken with the case and what happened in that case the first case right off the bat says james t gleason in the omaha world herald was accused of not saying anything racist when it's a court reporter made a racist statement also in beer is but i supreme court case in state v rice who's a former black panther party member for self defense who i represented for seventeen years i was assigned a court appointed by judge gleason and as soon as i filed this lawsuit he refused my payment i had to go up on appeal you're aware of about how judicial immunity would apply in a case like this it is an eighth circuit case i'm familiar with that i think you could you are now address why it were uprising as a was not apply because that was attached to a case or controversy mind is not attached to a case of controversy and that's the reason that i say burch does not apply if a judge issues a ruling on a particular motion for summary judgment or a criminal matter panel does not have to say mr i asked for we you file a motion for summary judgment we don't like it's different these are apples and oranges that this is a case of first impression to me in this jurisdiction and based upon that i'd say your honor when you have a constitutional violation you basically allow this to go for is the mitchell v fish by case and i didn't get to the virginia case which they didn't address in their person and their get misdemeanors non murder felonies but not murders you want to know how you got to that point and black i was not put up no really truly they don't have any blacks and they've never pointed to blacks so you were told any it just happened they don't talk to me they don't respond to me i'll send them a letter they won't send it back it's the culture that's what they do but the virginia consumers and i want they've never addressed this in his brief and that's were just like our case of my brief the virginia case the court held because of virginia statue cave gave the court independent authority in our case the court gave them independent authority to go ahead and that's a supreme court case to go ahead and start for money i'm doing this because it's the right thing and i'm telling you that you have the power to reverse that won't be six months you because they based it on law then no and the judge admits in the opinion hey this is split hi good morning may it please the court stephanie caldwell from nebraska and i'm here on behalf of the apple e's in the case which include the judge members of the panel selection committee the p s c that we've referred to in our brief now let me ask you a question off the bat if i read the statute right there's a public defender who's on this panel right that's correct but no public defender has been sued and apparently one is not acting tell me one of the employees in this was further my introduction is thomas rightly so he has been sued and he has an apple in this case and he's the douglas county public defender so the remaining apple user parties in this case are five judges at the douglas county and the active public defender thomas reilly ok so yes he is a part of this yet he is actually the i'm sorry no glad to clarify the case doesn't bob two issues and that is it's an immunity case i mean to the district court properly dismissed the case against the judges based on judicial munity and then did the district court properly dismiss the case against the nine judge the public defender thomas reilly in this case it was filed as a twelve b six motion and myself on behalf of the apple e's argued immunity i think mr ashford provided a good background of what the next dose of his complaint was but i'd like to provide a little bit of background as to this process and explain it but the nebraska legislature did ta process for the point of counsel directly to the judges the nebraska supreme court then adopted a local rule requiring its each district to come up with a transparent process and douglas county in this case did exactly that they created the d c panel the douglas county panel and they had a panel selection committee that was memorialized in their local rule density does not include private attorneys in addition to the judges the public defender that's almost taken verbatim from the federal panel under the criminal justice act that each district in the circuit uses and applies to this day that it was just so how does i'm sorry for interrupting but i do have a questions are similar to what i asked mr ashford how does somebody get notice or how is the communication between the applicant and the committee is it unusual to just not get a response is that how you're denied placement on this committee i don't believe there's anything i have the rule right in front of me judge and it talks about that the attorneys shall be their qualifications there's nothing that i can find in the role that said they had to actually receive a letter it did say they will be assigned to a specific category of a case but then at that attorney disputes that category so there must be some type of method that they're made aware of this and i honestly don't know it's not in the record or in the rule that they're made aware of this because then they are given an avenue to dispute this and i think that's a big thing that distinguishes our case from the mitchell case that mr ashford relies so heavily upon and that the second circuit in mitchell found there was no type of avenue are the persons denied to have a review in that case and mitchell involved an actual denial the appellant and mitchell got an actual denial letter and that's not actually been alleged in this case is the appeal back to this  who is the appeal to you referred to the appeal is right at the enemy within the rule itself that says if an attorney is dissatisfied with the category they've received or non placement they can put in britain or britain explanations to make it to the panel appointment in a particular case and that's a good question and that's the davis case that we relied upon the fifth circuit case i think did a really good explanation of this as we have knowledge that this panel like in davis in the fifth circuit doesn't involve actual points to an actual specific and concrete case but the mitchell case in the second circuit doesn't say that it has to be a specific concrete case davis explained but you need to look at this process as a whole look at it holistically and that you can't separate the two acts into an administrative act and then to a judicial act the panel in this case was doing the same type of using exercising the same type of discretion a judge would do in appointing an attorney to a specific case they look at the criteria of the attorney they look at their background and their experience have they completed significant hours and continuing legal education and the ultimate goal and purpose of this panel was to provide competent counsel to indigent attorneys to provide kind of a short cut for douglas county the largest county in nebraska to then not have to have that judge in that  function in this process of of selection by the panel it does insulate that panel of the non judges from potentially discriminatory actions and i think that's why we've argued in the second part of our brief that they're doing a function that is similar to that of a judge which would provide them the same humanity that quite as i did issue a munity and that they've been tasked this process through the courts they've been given the statutory responsibility through the courts to act in the same manner as the judge does and it's well established for quality education purposes for non judges in this case you you look at the function not the actor so that might be part of our second part of our brief a little shorter and that it's the same test you're looking at is it judicial in nature is it one that is normally performed by a judge and as judge benton cleaned it out yes the birch case is very controlling in case this case cited by the fifth circuit davis case that we've asked this court to adopt him follow contrary to mitchell and that they cite and rely on this circuit saying that the appointment of counsel is a function normally performed by a i couldn't find it either i just wanted to make sure that we're not talking about a request for injunctive rescue specific requests for injunctive relief to address this alleged in equitable situation right you know and even if it weren't for you tell me it does not i mean it just asks for injunctive an equitable relief as the court may deem appropriate so i don't think mr ashford spelled it out that's what he's asked for and stated in his complaint the majority of the no i don't think it was mentioned i don't know if it was brought up they did dismiss the case as a whole and i'm trying to recall your honor i believe it's the rother says can case united states supreme court case that says the immunity would still apply the judicial immunity would still attach stripped of the judges and the public defender in this case the birch case acts like it's still an open issue but the birch is a one nine hundred eighty two case what date was the rough case you i'm just wondering what would be that what would be the reasoning behind if if the if judicial mean it be protected all of these defendants let's just assume it did what would be the over the policy argument or what would be the reason that injunctive relief to address a discriminatory situation why why would that not be appropriate and and respectful of the relationship between the federal and state courts and i understand that but i think the president is still clear relief i don't think he's requested so then what's the recourse what's the recourse for an attorney who's been discriminated against by the basket court in this kind of situation if everybody if a judge acted in bad faith or was malicious judicial immunity still applies so you know if a person were to you know i can think of a situation or a defendant you know a lot of times would allege a judge might have been discriminatory in nature  there is no avenue if that judge is acting in a judicial capacity and the act here is doing our due well a criminal defendant has who has certainly has recourse if they through the criminal appellate system right and then in their later to to a federal court but an attorney in this situation i'm just curious what the just thinking about what is the what is the remedy and i think based on the president file if they have proof of a discriminatory act they must file a complaint with the judicial commission if someone's discriminatory thank you for answering my questions but i think i don't want to know that the very question there is do i sue nebraska has a judicial discr judicial discipline commission and i would imagine that that's an avenue they could take they could file a complaint with them but to actually speak i mean ask another question does the brassica have extraordinary writs in missouri the supreme court has general superintending authority of an imp of floor court and gives many mandamus prohibition and different other kinds of rich are rich available and in nebraska what or not i believe there are some type of emergency ribs i don't know them off the top of my hand i know once i had to think about that once we were dealing with the district court but i believe that is another avenue that they they could pursue but i think this is judicial panel in the judicial branch of government it was created by the judicial branch yeah what is it in the judicial branch of nebraska government says a fact when i think it is yeah ok thank you think they're acting as judicial officers the the non judges in the public defender the reason they wanted the public defender on this and the public defender is also on the federal criminal justice act planned panel is the expertise that a public defender would provide under these rules you know the cases would first go to the public defender but if there's a situation where it can't then it would go on to this appointment listen i think that's why it's very beneficial to have the public defender if they're unable to handle the case due to a setting forth why the circuit should not rely upon the mitchell case and i've tried to outline that in my brief but it really distinguishes the mitchell case from our case and i think that this circuit should adopt it and i hold the ruling  record and based upon me being here you don't think i would have cinema better or try to inquire they don't they don't respond to me at all then you ask about judicial discipline ok by state law i can tell you who i found a judicial going they were extraordinary circumstances here on this type of case they're not going to discipline and they're probably not going to do anything on this so don't believe that i haven't up probably far more judicial compla also i want to issue about that competent in terms of competent what you in nebraska as i stated before you have to have a particular law license that's it and you can handle a murder case there's no specialty but to get to a judge shepherd's case or issue about injunctive relief i was dismissed at the twelve b six motion if this is reverse this injury still ongoing and i stated in my complaint on page sixteen i asked for declaratory and injunctive relief of but i was dismissed out based upon the case law now we get to the birch case where i have to convince you that burps does not apply to my particular case and based upon the facts of birch there is the case or the controversy which is what we're trying to decide discern and as i stated before this does not the fact of the birch case do not apply to the facts of my case i'm talking for constitutional violations based upon race and it's in the best interest as they do for juveniles and it's good for the court to make sure that the bar is a multicultural multiethnic book and when you exclude blacks from that particular murder cases you're not treating everybody fairly and equally and my question to the court has constantly been well if you're treating the black attorneys with this most disrespect and you're not putting us where we're supposed to do what are you judges doing in the sentencing of black  so you want to make sure that your particular case and the appointment reflect the community in the bar the barge case does not apply also are forgot about the  k sixteen dash thirty three sixty six ashford vetoes is submitted for decision