he's number thirteen thirty nine is seven robert wright versus gallia county ohio in the board of commissioners of gallia county ohio at all our argument not to exceed fifteen minutes per side mr their heart sting for the appell switch tables but it's still me good morning again morning so in galia county public defenders are hired through a system that involves the county recognizing its duty to provide indigent public defense a public defender commission that the county established and the non profit lawyer defense lawyer corporation and that these three parties enter into a contract which is attached to the complaint and the judge is under the state system and under the contract not supposed to appoint lawyers except by referring indigent defendants to the corporation for a random appointment based on workload in galley a county judge  practice of just picking lawyers and appointing them and he had a practice of basically telling as we allege in the complaint the corporation and the public defender commission and the county how  public defender how how defense will go forward in a case like this are in these interesting cases and when he got into this tussle with robert bright and he banned him from  eight cases pending that were indigents then as we see in documents thirty four dash one page number three three four brights doing everything  to save his job and he learns that the judge has told the corporation that i am going to appoint non corporation attorneys until you fire break so he's gone to the length of co these other defendants into getting rid of bright permanently did you say that we sued all the defendants for retaliation based on mr bright's protected conduct and if you go through each element of the claim you've got against all the defendants you have protected conduct you have this advocacy on issues of public concern you have an adverse act mr bright was removed from all those cases and ultimately lost his job because he couldn't practice in front of judge evans and then you have the adverse act being motivated by the protected conduct where judge graham got it wrong in the district court and he dismissed all of the county defendants all call them is on his analysis approximate cause he said oh mr bright wasn't fired because he said anything or in the pleadings or did a protected conduct he was fired because he can't work in french judge evans anymore and that's that's where he ends the inquiry but in fact looking at the allegations of the complaint looking at the declaration at page three three four looking at the pleadings in this matter you see that there is a plausible inference that the protected conduct it was the motivating factor behind all of the defendant's actions which resulted in mr bright losing his job that we agree that  proximate cause issues should be decided your way isn't there a problem on whether there is in fact protected conduct because in the case no and i understand that the panel  as one leg of their decision said that pleadings by a defense lawyer are not protected by the first amendment but your dissent in the me above case and the cases you cite gentile and the others really say you know what when lawyers do their job that is and it's the paramount but first amendment as much as i love that sentiment well i understand but how i mean we're bound by one pound cannot overturn another panel last that yeah but they had two legs to that argument and one of the legs was that there was no adverse action which you agreed with but so so if there are two alternative bases for a sixth circuit opinion you're saying we can forget about one of them well i think you can look seriously at whether that one was intercooler to the holding and it's obviously wrong i mean there are your best case for saying that we can do what you want to do my best case is that if you look at all the supreme court cases in gentile they say that when lawyers do their advocacy that's protected conduct that is matters of public concern that the case that the panel got it wrong the question is on what basis do we get from under that case will you aren't saying it's wrong you can say that that wasn't as intricate to the holding as they're holding you saying it was yes because the holding the main holding was that there was no adverse action how can you say that's the main holding the majority say it was the main holding now you have to go back and look at it carefully and in fact what carefully what what would you point  what i'd point you to is the fact that mike allen who was the prosecutor in that case all he did was make a bunch of statements about mr meza by criticizing mr man's above as a bad lawyer on t v the majority say in that case that that helps get to where you want to forget i just don't think they chewed on the issue of whether it's first amendment conduct as seriously as we see them deciding i think it's dicta i think that it's much more important to them that mr mess about didn't lose anything other than a little face in the in the community as the prosecutor trashed him on t v and that and that's not an adverse action i don't i'm trying to find a case i know i have it here did you majority say you know i have it didn't already say it's more important to us or important more importantly or anything like that i mean because if the majority gave a hint that it wasn't focusing as much on the protective conduct then maybe you have an argument well i don't i can't i mean largely in the beginning of the adverse action section it's even if we were not convinced that ms bob's advocacy is not protected we would affirm so it sounds like the adverse action one is actually secondary rationale you know that's that's that's and make you know i'm just wondering if there's something else but we can we can look at it again right and i i think that it deserves a very fresh look and i think that the district court in this case got it right and and in concluding that there was protected conduct which is why judge evans is appealing only on the issue of immunity and in judge evans appeal that's not even though that was central to the district court's denial of the motion to dismiss they are not here and that in this case the county did raise saying that we hadn't stated in one nine hundred eighty three claim but if ever there was protected conduct an attorney advocating for the rules of the court and so on certainly triggers that and i think i think getting back to ms above i think we're being too global i think that the court should say let's look at the actual conduct all speech by all lawyers in all contexts in all courtrooms you can't say that that doesn't have any first amendment rights i think what they're really saying here is the type of speech here where meza bob was alleging in his pleadings that mike allen the prosecutor was doing something wrong that that in that context the court uses the phrase that this isn't first amendment protected conduct but in fact all lawyer speech in the courtroom is protected it's just a matter of what kind of balancing you're going to do it's heavily regulated which is the better way to look at this some speech in right in front of a judge to a judge's face says heavily resit regulated if you're going to get you can go to jail if you say the wrong thing or if you say it in the wrong way and we understand that that doesn't mean there's no first amendment protection it just means that the government interest in respecting a judge respect in the decorum of the court in honoring the majesty of the court is greater then a lawyers whim  i think in each of these contexts we should look at the balancing that you would normally look at in a first amendment case and here this type of speech is also regulated it's protected conduct but it's regulated and had mr bright said disrespectful things there would have been a way to address that without violating the constitution but here this is a classic retaliation case and  it does remind me of some of the prisoner cases the generated a lot of the jurisprudence and retaliation in the circuit that is ex king those are cases about advocacy about filing cases and filing grievances and filing pleadings and in those cases the court accepts that that's protected conduct which is what mr bright was doing and in those cases the court accept that if you put a guy in solitary or transfer him to a higher security prison because he's asserted the first amendment rights of himself and his brother inmates that's an adverse action and in those cases the court is even going on to look at whether in fact when you have multiple defendants as we do here a defendant can be liable if he sees that if he implements the orders of another it will violate the rights of the plaintiff and that's what happened here these county defendants implemented the order of judge evans banned mr bright from any further employment because he wasn't as useful to them and therefore they are implementing therefore if you do the last step of the first amendment analysis they would have done this if the protected act had had hadn't occurred so is there any other remedy for attorney right getting his job back given the supreme court disciplinary proceeding against judge there is no feasible remedy that would get him full relief that would get him his job back ok and or damages hundred three and this is the type of setting where an independent forum is probably prefer a ball but even if there were state court remedies available they wouldn't be for full relief you might be able to  argue something about a right to reinstatement but you know mandamus action you have to you have to order the executive officer who is being compelled has to have a clear legal duty and there may be other arguments other defenses that have nothing to do with the protected conduct here that would make that less effective than the action we filed i'm curious about some of the relationships under the joint actor theory the same theory i use when i sue a doctor who is hired by the jailer hired by the sheriff to provide medical services in a jail it's that type of mixing of the mission and in those cases i'll even argue that the doctor has the medical director has been delegated the duty is the final policy maker for the sheriff because the sheriff doesn't know you know is in a position to actually dictate the medical policies but those defender yes told the public defender you're out told hold on to bright let him do the misdemeanor cases let's all let's file a prohibition a writ of prohibition like they did  i mean there's that that's why we need to go back and do our discovery and have our kid there's a lot of facts what do you say happened behind the scene judge evans just got his way he said i don't want to be dealing with this lawyer and everybody folded even those who went to the chambers and said you know wait a minute you know don't you think this is an overreaction mr bright sent apologies he said can i redo that motion i want to do a do over none of it worked and judge evans just told literally and this is in the record at thirty four dash one judge evans told the representative of the criminal defense lawyer corp i am not going to appoint a corporation lawyers i'm going to keep appoint people outside the panel which is like double the cost because you've got these others on salary until you fire break so that's part of the evidence in the case and that would be another way to frame the kill a name against you can focus on that alone and and frame that is the case against these defendants it's in the record though and ultimately the coersion of these other defendants we still have to prove it up we have to do discovery and i'm not going to give up the eas right it is but i'm a trial lawyer and i may not be able to prove that up as clearly as i've got it in my pretrial investigation right now and if i can prove it up yes we have a double way to argue  jurisdiction but right now it's hearsay it's a reliable hearsay but it's still hearsay i want to deposition you know and i'm we're going to have to work up all the facts in order to come this is a motion  have that well you did because well we do yes right now hold on to that rice is all one case so that was filed in response to a motion for lack of subject matter jurisdiction by the corporation so that's when we got that evidence and put it in but it could apply to all the defendants and and you're free to look at the entire record as you look at this but but you know i am as i say a trial lawyer at the very beginning of a complicated set of relationships where they're all in a club and we're not going on the door and i am not going to hang this case on one very interesting and compelling statement but that can't be the only basis for suing these defendants when we know that a judge who issues an order i done a call in sixty nine cases that the corporation try to intervene in mr bright to be here and was shut down by the judge i feel i have evidence that the corporation made an inquiry asked for some accommodation and was told you're not going to get it ok and you're alleging that the corporation in the county and the commission had a duty not to  right i'm saying that this is just like any other joint actor where you know that the underlying trigger for this negative action is protected conduct you would have never fired mr bright if this hadn't come up and now you're firing him because he spoke up and he's being retaliated against you are a joint participant in the constitutional violation thank you thank you may please the court your owners my name is dan downie and i'm here on behalf of the gal you county board of commissioners and the gal your county public defender's commission and i would like to blow the game in this argument by noting that we are here based upon a motion to dismiss a first amended complaint and the first man the complaint contains very limited allegations with respect to my clients of the board of commissioners in the to supply the residence of value county with indigent legal counsel although not attached to the initial complaint it was attached to a motion to dismiss which was the contract  obligations between the commission and the corporation that in fact hired mr bright as an independent contractor representing the corporation i do not your honor the corporation has separate counsel at the lower court level filed a motion to dismiss which was granted and has not made an appearance in this appeal i would like to note that they are separate entities there's a contract in place between my clients and the corporation the corporation is noted earlier as a nonprofit private entity that simply supplies the residents of guy county if you cancel they also comply with various guidelines in force for the public defender of the state of ohio into for the year and issue a i think two hundred ninety one thousand dollars was paid in monthly installments as noted in the contract to provide this service to the residents of guy county so just imagine this question if you are you taking the position that you're not making any representations regarding the county's involvement in any of this you're soley defending on the first amendment issue of defending the county and the and the public defenders commission which are that suit you know i know we are client is a masking what your position is on this appeal i'm asking whether the only issue that you are basically that you're conceding always use except for the first amendment issue or are you also asserting that your client was too far removed or something that no your honor i am here today to argue the entire case because the allegations made of lower court level are that my two clients as removed as they are from the process and from judge evans played some role in the alleged constitutional deprivation of rights of mr bright judge graham when he issued the decision regarding my client's noted that he had already ruled that there was no underlying constitutional deprivation of rights in the decision issued with respect to the corporation which is a separate entity with separate legal counsel but for purposes of today behalf of my clients were arguing that one there was no underlying constitutional deprivation of rights to there's no responsibility duty obligation on the part of the commissioners or the commission  intervene in what was a matter between judge evans and the corporation but there hasn't been any discovery on what might have transpired between the corporation and the and the commission that is correct your honor and the reason that we are here is because in my view and in the view of judge graham at the lower court level play that has not set forth any allegations that present any plausible constitutional deprivation  by mr bright or that there could be any relationship between what mr bright went through with judge evans and my clients as initial proposition i would note that the way county government works in general i commissioners are there to provide funds to various other entities and organizations that they carry after these responsibilities in the revised code they do not oversee for instance judge evans the court has heard a considerable amount of  commentary today regarding what mr bright's rights were views of the the bar in the state of ohio and i would submit to this court that the county commissioners or a public defender commission i represent would have absolutely no duty or obligation to intervene it is dispute between two lawyers i understand that the county might be solely the funding entity but the public and the commission have to have a far different role me give me give me the best case for why the public and the commission should be thorough removed if not to be considered if playing any role in that certainly your honor i would i would suggest is to look at the contract employees between the commissioner the commission and the corporation under the revised code it is permissible for the county there requirement is to set up a commission or provide a public defender services to indi you county they went through the process of creating this commission which in turn contracted with a separate organization which is perfectly permissible in the revised code to provide the services to those individuals who required and the contract is quite specific with respect to what are the duties and obligations of the parties the commission of the commission or simply provide funding either party can terminate the contract with the thirty days notice but as far as employees sub contractors who they hire who they fire that is strictly the province of the corporation so the corporation made it her mission is as to who to retain they chose mr bright as see noted three months prior to the incident involving judge evans they decide what people are paid how they're directed if they are at all by the corporation things of that nature so the reality is the commission and the commissioners had absolutely no oversight in control of mr bright or the corporation how they cared about their daily tasks what did the complaint read your client well the complaint allege that they were reality is and mister i mean missions a small county with thirty thousand residents and everybody knows what's going on but the complaint doesn't even allege that my clients knew what was happening at the time that new mr right was having this issue with judge evans or how they went about resolving it frankly there is absolutely no logical t'ai to my client's and would ultimately occurred setting aside whether or not a constitutional deprivation occurred because judge graham was quite clear in the noting in his decision that there simply wasn't retaliation in this case because the corporation was presented with a situation where they had to provide legal services to indigent residents and the only judge in ga you kept me said he didn't want to have cases with mr bright so that was the reason pursuant to mr bryce own statement in the amended complain course terminations and that's a rational reason for terminations now i would note to the court that earlier you were advised of the supreme court decision involving judge evans and there is a descent by justice pfeiffer where he believes that mr bright was that will employee of the of the corporation and i would submit to the court that if discovery were to move forward that's what would be ascertained but at this stage of the process and certainly mr bright being a lawyer is well aware of ways to develop discovery and information to pursue cases through either thirty four d petition under ohio law or public records requests and i would submit to the court that the threadbare allegations contained in certain services and they contracted out and they are informed that the company with whom they contracted has just fired all the african americans and women because for whatever reason is is the can is the county not responsible what i would suggest your honor and in this contract has a clause that you will follow all laws with respect to discrimination cetera but what i would stay to the court is the cabby they would not be a county employee it would not be the county exercise of your side or that particular to provide a certain service and they contract with a company to provide the service and the company is by leading the rights of the employees were let's say a judge can they fire the woman because it's not they have no use for her if the court if the judge won't take her in the courtroom they don't agree but what are they supposed to do but i understand your position or your question and with the clerk of courts that would be a county employee that would be somebody that works for the particular county and county policies would come into play in arguably immunities with attached to county involvement and cetera and make the first hypo of judge white which is the judge evans says he doesn't want to have any public defenders who are african american or female and the attorney involved is a female african american  and the public defender corp who's not here today for whatever reason fires that lawyer but well your honor i do think that is a different situation from the one that we're confronting so how would we resolve the hypo well  i think that if we should let the case go forward right again if your client's if it was a board of county commissioners and a commission is set up you're exercising no oversight over that third party i would disagree that the case should move forward but i certainly do provide funding to the corporation that was acting in a discriminatory fashion i can say to your honor that i would be shocked if any public entity and i represent many of them would sign off on such a policy what i do  know is they legitimately continue to provide something i say your honor i don't believe in the circumstances that they would provide funding moving forward and i think that if you took race of being a protected class that that would be a different situation even though you're arguing the first amendment issue now you're saying that would be a violation but this isn't because there was no first amendment lation but trying to separate out the question whether there's a constitutional violation from the question of whether your client is potentially responsible let's take a case where there is a violation and ask you would your client be responsible if they did nothing about it and simply said sorry well your honor i think in the hypothetical that you provide certainly race gender would be protected classes so i think that's different than what we have in the case at hand with the commission and the commissioners and we haven't even gotten to the point that you know how could the commissioner the commissioners be the driving force behind judge evans's conduct which ultimately led to the terminations by the corporation hypothetical you they're not the driving force either it's judge evans who made this who said i don't want them in my courtroom yes i understand your hypothetical your  honor in my view that it would be distinguished because it would be a protected class as opposed to in this instance which is not but the greater issue that i would look to would be how you would tie the calving in the commission as distant as they are from this situation to any legal obligation to mr bright these are the judge of this conduct what the play that has alleged this complaint is that somehow my clients who are not even alleged to  occurred had some duty or obligation to let me let's make it really simple let's say what judge bright did was say that instead of i'm sorry judge evans instead of it being mr bright it's a it's a black woman and what he did it was say i'm sorry you can't practice in my courtroom he goes to the to the corporation and says find another lawyer and if and till you do i'm not appointing anybody i mean i'm pointing out so i counsel and they throw up their hands or go boys this guy in that case but you know we can't afford to have an extra person around here they're fired you know about i mean is there liability or not for i don't believe there be liability for the commission or the commissioners but i also think that is a different situation than one that we have we know it's a different situation thankfully  so you don't think they could be responsible i don't police say or even though they've they've destroyed their statutory duty to provide indigent counsel in a manner that infringe the lawyers constitutional rights i think that that if you will through the next step your honor is that when you take the commission of the commissioners and what their role is they're not exerting oversight in control of an agency now i do believe that they had the right to terminate the contract and i think that they were i think that the hypothetical itself would never fly in guy county or anywhere else in ohio or i go i certainly hope counsel has noted that they should not be able to skirt their liability issues by creating a private nonprofit that comes in and takes care of these services the reality is counties and governments subcontract out work all the time that the situation is the same other not county employees are not required to provide them with county benefits things of that nature did the commission create this problem i'm not certain that i mean it was spoke your honor i think that  the commission was contracted with the excuse me the kitchen contradict with the corporation i'm not certain as to how they were created thank you thank you very briefly judge what your analogy is excellent we did draw that out in our brief as well because we don't see the distinction between the protected conduct of mr bright and judge ev reaction and then judge you have been saying i'm not going to hire are not going to let black or women with lawyers practice in front of me and then everybody else accommodating that to us that is an important analogy and it starts though with accepting that this was protected conduct which is the most above case and in the paragraph the last sentence of which you cited judge moore the court makes it pretty clear that the only reason meza was not engaged in free expression was that he was the sole reason was to vindicate his client's rights an attorney retains no personal first person no first amendment rights when representing his client in those proceedings so that's why we didn't sue over the gleason removal but it is a totally different matter because bright plead past year drop dead you know he was doing an advocacy beyond his client and in that sense his conduct is clearly protected even if you're trying to honor the majority decision in ms above and to respond to something that my colleague stated the complaint clearly says that all the defendants singled out the plaintiff in retaliation for exercising his freedom of speech it's at page one forty five in the record paragraph forty two and that's after you see the litany of acts that everyone did to get to this point the complaint standard giving  clear and what we did as much as we knew is we attach the complaint which has everyone signing every one of these defendants except judge i haven't signed the contract and that contract has lots of different duties and we also made allegations in the complaint about how it really operated about how drugs evans actually did things that these other parties all accommodated because he was not honoring the system the way it was set up and that therefore it's plausible that in addition to honoring the other abuses they're going to honor his discriminatory abuse of mr bright and that's why paragraph forty two which alleges in conclusion that the defendants all single brite out is flows appropriately from the other factual allegations and that meets all thank you thank you for your argument the case will be submitted