Despite ‘Unethical’ Acts, Judge Has Immunity

CINCINNATI (CN) - An Ohio judge who undoubtedly "failed to meet the minimum expectations for members of the judiciary" still has immunity from claims that he cost a lawyer his job, the 6th Circuit ruled.

Robert Bright found himself on the bad side of Gallia County Judge David Dean Evans in July 2011 while representing a defendant for the Gallia County Criminal Defense Corp.

One of Bright's clients refused a plea deal and then thought better of it "mere seconds" after the initial refusal, but Judge Evans refused to let the client take the deal.

"No, we're not going to play games," the judge said before ordering the trial to be scheduled.

When Judge Evans again denied Bright's request to accept the plea in chambers, the attorney filed a "motion to accept plea" in which he criticized what he called the judge's "blanket policy of a 'drop dead date' concerning plea agreements."

Bright called the policy "an abuse of discretion because [Judge Evans's] position and attitude is [sic] unreasonable and/or arbitrary and/or unconscionable."

Judge Evans filed a grievance in August with the Supreme Court of Ohio and removed Bright from the case in question, while also filing entries to remove him from every other felony case in which he was involved.

All in all, Bright was removed from nearly 70 cases. A month later, the Defense Corp. fired him because he could not practice in front of Judge Evans, the county's only Common Pleas judge.

Bright filed suit the next year against Judge Evans, the Defense Corp., the Gallia County Board of Commissioners, Gallia County and the Gallia County Public Defender Commissioner, alleging violation of his free speech and due process rights, as well as interference with a business relationship and invasion of privacy.

U.S. District Judge James Graham in Columbus refused to dismiss the claims against Evans after finding that the judge was "not entitled to absolute judicial immunity because his actions were completely outside of his jurisdiction."

Claims against the remaining defendants were, however, dismissed.

A three-judge appellate panel in Cincinnati reversed for Evans on Tuesday and ordered Bright's lawsuit dismissed.

"Judge Evans's actions were petty, unethical, and unworthy of his office ... but Judge Evans and the Court of Common Pleas had subject-matter jurisdiction over the underlying criminal proceedings," Judge Karen Nelson Moore wrote for the court. "As a result, we cannot say that Judge Evans acted 'clearly outside the subject of the court over which he presides.'"

Bright failed to sway the panel with his argument that only the Supreme Court of Ohio has the authority to punish him in the manner perpetrated by Judge Evans.

"The problem for Bright ... is that Judge Evans - whether his actions constitute discipline or not - was not sitting without jurisdiction over a disciplinary hearing; rather, he took these actions while overseeing nearly seventy criminal prosecutions," Moore wrote. "Thus ... he still had subject-matter jurisdiction over those proceedings in which his actions took place - a fact that preserves his absolute immunity - even if he clearly lacked jurisdiction to take such actions against Bright independent of the criminal prosecutions."

Though it granted the judge immunity, the panel harshly criticized his conduct. "By operating in such an unreasonable manner, Judge Evans has brought dishonor on himself and his position," Moore wrote.

The panel concluded by reiterating the concept of judicial immunity as protection for the entire judicial system, not individual judges.

"In our legal system, there is often someone who loses his money, his liberty, or his life," Moore wrote. "This cannot be helped. But if that defeated party could turn around and file suit against the judge or judges in his case, then the whole system would unravel as the threat of suit crept into the judges' minds. This conclusion does little to help Bright, who was wronged by Judge Evans. It, however, preserves the independent judiciary."

In affirming dismissal of Bright's First Amendment retaliation claim against the Criminal Defense Corp., the panel relying exclusively on the 2005 decision by the 6th Circuit in Mezibov v. Allen. That holding says that attorneys cannot "claim First Amendment protection on [their] own behalf for [their] filing motions and making courtroom statements on behalf of [their clients]."

Bright's critical filings constitute "core political speech" and therefore considered itself bound by the ruling in Mezibov, the court found.

The remainder of Bright's appeals failed to make a dent as the panel affirmed dismissal of the attorney's claims against Gallia County, the Board of Commissioners and the Public Defender Commission.

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