case number eighteen dash three three six three red zone twelve l l c at all versus the city of columbus ohio at all argument not to exceed fifteen minutes per side mr connors you may proceed for the appellate more morning your honor and the justices of the court i would like to reserve two minutes of rebuttal if i may your honor thank you this is a nine hundred eighty three case that was dismissed by the district court under rule twelve  c basically for failure to state a claim and that the district court held that there was absolute immunity on the part of the city attorney in this case for the city of columbus the district court held  page nine of its decision that our focus on the reasons that the city attorney brought the nuisance action did not matter the decision to prosecute or not prosecute even if malicious enjoys absolute immunity which is what the district court found this completely even though the decision pays lip service to the idea that they should apply the functional approach analysis it said within his decision we're not going to do that in any argument that you have for that we're not listening to because the city attorney enjoys unfettered absolute immunity in deciding to file a nuisance action the problem with this is in the reason that we focused on the reasons for the decision by the city attorney to file a nuisance action in this case was that this court in cooper said that the functional approach focuses and whether the prosecutor's activities are associated intimately with the judicial phase of the criminal process and here there was no nuisance and there was no nuisance activity there were no criminal complaints  not the merit of his client that's what your just say but in this case there was no nuisance whatsoever so he was prosecuting pursuant to the city's policy and custom that's a reason right it's a reason i thought the whole idea of absolute immunity as opposed to qualified immunity is that there is no bad faith exception in other words if you did it in bad faith you still have the immunity well in berkeley that's what absolute immunity means or do you disagree with that because if you do we're on different train like train tracks here i understand and appreciate what you're saying however this case what's the answer the question absolute immunity means bad faith still immune to that it's correct when the right so when you say we did it for this reason he did for that reason he did it with no basis immune what is the point of the functional approach and else a functional approach is sometimes you're not prosecuting you're out there breaking into somebody's house that's not part of the judicial function because you could be breaking into somebody's house that never gets tried well in so it couldn't be cured by an appeal but when you're prosecuting this is the prosecutor in this case was not prosecuting well but he was but for the bad reasons you but the method of using the nuisance action a method of prosecuting a new cynic and the method of using that action to obstruct interfere with the right to conduct a lawful business in the city of hypothetical question just so i understand your idea of the law let's say you have a prosecutor who prosecute someone for the sole reason that that that person is prosecuting trying to go out with this wife immunity if if if there's he's prosecuting now he's bringing a court case he's writing the indictment but the real reason is that he's playing around with his wife and i would suggest that's illegal may be illegal but that's a classic example of where absolute immunity applies you read that book or hold absolute immunity cases they say it's a game but the way that secured is in the prosecutors in the development of the prosecution and not by a civil suit against the prosecutor i don't say if you say that's not prosecuting that's not a functional test that's a good faith test or or a bad reason test it's not a function test because the function is he's prosecuting this have to get me past that or you just lose what about the berkowitz case or the what about my example i don't know you say that's a vile that's at that well you would not be subject to absolute immunity if absolute immunity applied for that cat is not subject to absolute mean that's the well the in this case the city attorney acting as an alleged prosecutor for which there was no nuisance the resample zero nuisance at hand back the way t we have it is parallel tracks of concern i don't think anybody's going to deny the cure allegations in this complaint are very troubling about what went on there's no question of the it right but the track that we are on has to do with a public policy decision that we don't want prosecutors being always afraid or concerned about prosecuting and doing their job because someone might sue them the tradeoff for they at is that prosecutors get to do things for bad reasons and and they still have that immunity because the public policy is this prosecutor must have freedom to do her job no matter what is so the the bottom line of that is the remedy is within the prosecution action and the rim a to when you went when when this gentleman prosecuted your clients and ask a permanent injunction against their ability to conduct business the court say ed i'm not doing my that's not right so the policy is that you have that remedy within the structure and you had it does not make the reasons one bit better but it manes that the choice has been you must pursue it within that action and you did and you won within that action rate but so so have that's how absolute immunity works so tell me how your case falls outside of the have her case falls outside of this because under the functional approach says the prosecutor wasn't conducting any prosecutorial activity wasn't acting as an advocate wasn't preparing criminal proceedings the prosecutor the city attorney situation they they desperately begged the environmental court to continue the action for this so listen of obstructing our business our client's business and is ability to conduct this and they lost and they review and analyze exactly what the prosecutor was doing what he was doing was according to use something for the wrong reason he wasn't doing what a prosecutor does let's say that but then you when you ask saying it is case was meritorious simply not america or you had no case is zero case there was nothing to do with the judicial function in this case they used this as a policy by the city to effectuate its redevelopment we don't allege anything else and we cited legal authority obviously in the case law that supports the notion that when you have a one time situation being a one and situation makes for a customer  they can under certain circumstances i believe that my know and it provides for that it is feasible and possible but we were denied discovery in terms of trying to determine all this  the course of the environmental case proceeding i would just emphasize again though that under the functional approach analysis we have to look at what the prosecutor was doing in this case it wasn't any concern of prosecuting somebody for a nuisance and it cost substantial damage or and i mean we're repeating ourselves but when you say functional somehow that appears to me to be in your mind purpose and functional is is a test that's designed to be distinct from purpose clearly distinct from purpose well you're doing something what it is what is the function that you're doing as opposed to the reason you did it that's the distinction that draws so we need to say this is why it's not computing when you say the court ignored the functional test because the purpose was bad it's sort of a con it strikes me and i think my colleagues is a contradiction in terms i understand what you're saying but the functional approach requires the court to look at what the prosecutor was doing was he acting as an investigator administrator for the city was he brought a could he brought it he brought a claim he brought  pursuing the claim is the function that the prosecutors do then there's no need for the functional oh yeah because if the as i say i give you all kinds of example where the functional says you sue the prosecutor if the prosecutor  goes out of the courtroom and and kicks the person who suits who serves him lunch that's not part of a function of what a prosecutor does and when when when and that is that when he does something that a prosecutor nuisance action to effectuate the redevelopment policy of the city that's outside judicial realm thank you wri more in your honour's and i'd be happy you're dressed any questions or concerns the court has if not i don't have anything additional to add what position do you take on whether the city attorney has final decision making authority under the p by our line of cases ultimately this is the attorney that files a lawsuit and you know that's just what any attorney but particularly a prosecuting attorney is the person with the final authority to decide to initiate a judicial action yet certainly in that capacity but i'm asking in the capacity on behalf of the city does the city attorney have final decision making authority or is he in a position and he fulfills that position in other words does he set policy for the city or doesn't take i don't think he sets policy for the city of columbus i think he is the chief legal officer for the city of columbus and if a public nuisance exists or the city attorney believes a public nuisance exists in the city of columbus like for example in this case that even if you look at the exhibits that were attached to the american plane the allegations were multiple legal alcohol sales which is a predicate act for a nuisance case if that exist in the city attorney is the one who will decide there's another if it's it's an individual prosecutorial but in your mad that would be distinct from a city policy that he was implementing because the city policy is to prosecute the sort of back the city policy would be to prosecute actual nuisances that exist in the city of columbus as i'm sure it would be the case well dismissal which was attached as part of the pleading so as part of the case the reason the case was dismissed is because a condominium owner or a developer wanted to come in and tear down the nightclub and build a condominium well  club been closed for a long have for the prosecutor in this case ever it's a t v ad and it had the appellants had closed down the nightclub before that action was to retaliate against the owners of the business and my response to that is within thirty seven sixty seven the harbor nuisance statute the permit injunction exists for the property itself so the so in need nuisance activity can never really occur there no matter who owns it but wasn't there a broader request related to these individuals and their ability which has nothing to do with that proper best public servant we've ever say it may not matter in terms of the ultimate resolution of the cabinets but he doesn't come out looking very good given the the facts in you honor in my response to that is someone who worked for rick pfeiffer for over a decade and has a great deal of respect for rick fire for this is a twelve c so you saw the ad this is this was a twelve c motion so you saw so we've been technical perhaps perhaps abstract question hypothetical but it's related to this case if you if if ace could a city ever have a liability even though the actions were taken by people with absolute immunity the city doesn't get absolute immunity right so it's not you can't plead absolute immunity on the part of the city the cities being sued with the city conceivably in some case take action that is unconstitutional or illegal through the actions of persons who are absolutely immune and nonetheless be liable for that ever happen but it ever happened  imo i mean legally is that within the realm i mean it seems like it should be able to otherwise cities could could could could get away with things that absolute immunity is not designed to protect and your honor i will answer the general question then bring it back to right case generally sure i mean i think it imagine if there's city ordinances about jaywalking and the city decides we're only going to prosecute african american males for jaywalking and then the city prosecutor for a decade only prosecute african american males and ignores everybody probably yes the city could be happy even though you couldn't sue the prosecutor in this case we're talking about a prosecutor bringing in a public nuisance action in the name of the state of ohio so in this type of case the answer would be no and that is the with the answer being even if it was clear that the city had a policy that they wanted no african american land owners in their redevelopment district why does it matter whether it's brought in the one with the state if it is brought at the behest of an expressed in appropriate policy implemented by the city that somebody who represents the city of columbus i will tell you we absolutely do not have that policy but we're asking you about the potential of that absolutely but i'm being recorded i want to does not act is the policy determiner for the city yesterday because if he is if the description of his job said that he was to keep policymaker for the city and all the sudden he's in a different spot  policy of allowing berkowitz or any law director to bring illegal actions that is specifically what we have alleged here i don't really concede your point on the absolute immunity i know we disagree on that but you went to the second point that we're trying to make here the city cannot act illegally through an absolutely immune prosecutor and we allege that policy and that custom where as in berkowitz do you allege this is the question i think judge strachan was asking do you allege that it was imposed against anyone else and i thought you agreed in your earlier argument that you didn't  we didn't have the opportunity to talk about alleging we allege that it was a policy and that this is what they used it for in fact we went to great lengths in our pleading to demonstrate that the city attorney in this case has usurped the administrative policy making decisions of the city for the very purpose of conducting tests of the city had a different policy at the city had this policy of utilizing the nuisance action to accomplish something that it couldn't otherwise legally accomplish at get that state by itself doesn't even state a claim i mean cities can try to establish policy through prosecutions not  fact that that's the way they do it and they don't they can't think of another way to do it doesn't make it illegal the city can give the policy making role to the city attorney and say go investigate it make your own determination this faith is too much there's too many illegal pets in the city and the way we want to deal with that is to prosecute people under the illegal pet statute i mean that doesn't make the illegal pet statute a constitutional right i understand that but we have alleged that there was a custom in policy by the city to effectuate its redevelopment policy through the use of this there was no other reason for them to bring the nuisance action other than to force my clients at great substantial financial loss to submit to their demands about this permanent injunction which flies