Bright v. Gallia Cnty.

• Decision Date: 22 August 2014
• Docket Number: 13–3907.,Nos. 13–3451,s. 13–3451
• Parties: Robert W. BRIGHT, Plaintiff–Appellee (13–3451), Plaintiff–Appellant (13–3907), v. GALLIA COUNTY, OHIO; Board Of Commissioners of Gallia County, Ohio; Gallia County Public Defender Commission; and Gallia County Criminal Defense Corporation, Defendants–Appellees (13–3907). David Dean Evans, Defendant–Appellant (13–3451).
• Court: U.S. Court of Appeals — Sixth Circuit

753 F.3d 639

Robert W. BRIGHT, Plaintiff–Appellee (13–3451), Plaintiff–Appellant (13–3907),

v.GALLIA COUNTY, OHIO; Board Of Commissioners of Gallia County, Ohio; Gallia County Public Defender Commission; and Gallia County Criminal Defense Corporation, Defendants–Appellees (13–3907).

David Dean Evans, Defendant–Appellant (13–3451).

Nos. 13–3451, 13–3907.

United States Court of Appeals,Sixth Circuit.

Argued: March 12, 2014.

Decided and Filed: June 3, 2014.

Rehearing En Banc Denied Aug. 22, 2014.

ARGUED:Linda L. Woeber, Montgomery, Rennie & Jonson, Cincinnati, Ohio, for Appellant in 13–3451. Alphonse A. Gerhardstein, Gerhardstein & Branch, Co. LPA, Cincinnati, Ohio, for Appellee in 13–3451 and Appellant in 13–3907. Daniel T. Downey, Fishel Hass Kim Albrect LLP, Columbus, Ohio, for Appellees in 13–3907. ON BRIEF:George D. Jonson, Lisa M. Zaring, Montgomery, Rennie & Jonson, Cincinnati, Ohio, for Appellant in 13–3451. Alphonse A. Gerhardstein, Jacklyn Gonzales Martin, Gerhardstein & Branch, Co. LPA, Cincinnati, Ohio, for Appellee in 13–3451 and Appellant in 13–3907. Daniel T. Downey, Stacy V. Pollock, Fishel Hass Kim Albrect LLP, Columbus, Ohio, for Appellees in 13–3907.

Before: MOORE, WHITE, and DONALD, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In this case, there is no debate that Judge David Dean Evans failed to meet the minimum expectations for members of the judiciary: He overreacted to attorney Robert Bright's criticisms and inappropriately removed Bright from nearly seventy felony cases. The judge's high-handed actions caused Bright great hardship, but litigation seeking to hold Judge Evans personally liable is not the solution. Generally, we rely upon the judges further up the judicial hierarchy to review and correct the rulings of lower courts. Only in a few circumstances do we allow lawsuits against individual judges to proceed, and for good reason. The specter of facing a lawsuit naturally encourages overly timid judging and presents a direct threat to judicial independence. While Judge Evans's conduct was worthy of censure, it does not fit within one of the exceptions to absolute judicial immunity; thus, we must REVERSE the district court's denial of immunity.

Unfortunately for Bright, our case law also requires us to side against him in his lawsuit against the Gallia County Board of Commissioners (“the Board”), the Gallia County Public Defender Commission (“the Commission”), and the Gallia County Criminal Defense Corporation (“the Corporation”). Under Mezibov v. Allen, 411 F.3d 712 (6th Cir.2005), the First Amendment offers no protection to an attorney for his speech in court. Id. at 716. Without such protection, Bright cannot state a valid claim under 42 U.S.C. § 1983, and we must AFFIRM the district court's dismissal.

I. BACKGROUND

Gallia County lies along the Ohio River in Southern Ohio, bordering West Virginia. A board of commissioners governs the county and is responsible for providing indigent criminal defendants with legal representation. To that end, the Board established the Commission pursuant to Ohio Revised Code § 120.13. According to this statute, the Commission is to have five members—three chosen by the Board; two chosen by the county's Court of Common Pleas judge—and must either employ criminal-defense attorneys directly or hire outside counsel. In this case, the Commission contracted with the non-profit Corporation to hire and retain defense attorneys, who would represent indigent criminal defendants.

In 2011, the Corporation hired Bright to be one of these county public defenders at a rate of $5,600 per month. R. 18 at 5 (Am. Compl. at ¶ 15) (Page ID # 141). As part of his duties, on July 25, 2011, Bright represented R.G. before Judge Evans, the county's only Court of Common Pleas judge. Bright negotiated a plea agreement between the prosecutor and R.G., but R.G. hesitated to accept it during the plea colloquy. According to Bright, R.G. was under the mistaken assumption that he could return home for a short period of time before leaving for prison. R. 18–2 at 2 (Bright Mot.) (Page ID # 154). “Mere seconds” after refusing to accept the plea agreement, R.G. informed Bright and Judge Evans that he would take the deal after all. Id. at 2–3 (Page ID # 154–55). Judge Evans refused, stating: “ ‘No, we're not going to play games.’ ” Id. at 3 (Page ID # 155). Judge Evans then ordered trial to be scheduled.

On July 28, 2011, Bright and the prosecutor met with Judge Evans in his chambers in an attempt to convince the judge to accept R.G.'s plea. Judge Evans refused. On August 3, 2011, Bright filed a “Motion to Accept Plea” with the court. R. 18 at 6 (Am. Compl. at ¶ 23) (Page ID # 142). In this motion, Bright stated that “[i]t is arbitrary and unreasonable for [Judge Evans] to refuse to [hold a hearing regarding whether to accept R.G.'s plea as voluntarily, knowingly, and intelligently made].” R. 18–2 at 6 (Bright Mot.) (Page ID # 158). He criticized Judge Evans's “blanket policy of a ‘drop dead date’ concerning plea agreements” by which Judge Evans refused to accept a guilty plea from the defendant or a prosecutor's decision to drop charges once a certain date passed. Id. at 8 (Page ID # 160). Bright called such a policy “an abuse of discretion because [Judge Evans's] position and attitude is unreasonable and/or arbitrary and/or unconscionable.” Id. at 9 (Page ID # 161). Bright also took issue with Judge Evans's failure to conduct a full colloquy with R.G. regarding his willingness to plead guilty, id. at 16 (Page ID # 168), with Judge Evans's categorical refusal to accept “ Alford /no contest pleas,” id. at 16 n. 5 (Page ID # 168), and with Judge Evans's “ ‘one strike and you're out’ policy on community control violations,” id. at 16–17 (Page ID # 168–69). Throughout the motion, Bright cited case law and made legal arguments. His language was emphatic and forceful in many places (for example, calling Judge Evans's actions “unconscionable”), but he used zero profanity and made no charges of ethical impropriety.

According to Bright, on August 5, 2011, “Judge Evans contacted the Office of Disciplinary Counsel of the Supreme Court of Ohio ... and filed a grievance against ... Bright on August 8, 2011.” R. 18 at 6 (Am. Compl. at ¶ 24) (Page ID # 142). Also on August 8, “Judge Evans filed a public journal entry in which he declared that ... Bright's motion, although not rising to the level of misconduct or contempt, had created a conflict with the Court and ordered that ... Bright be removed from the case of [R.G.].” Id. (Am. Compl. at ¶ 26) (Page ID # 142). In his briefing on appeal, Bright claims that the entry stated:

By such conduct [Bright] has created conflict with the Court whereby in this case or for that matter any other case in the future, when [Bright] does not agree with a decision or ruling by the Court, instead of being critical by accusation of being arbitrary, unreasonable, unconscionable or of abusing discretion, [Bright] simply may accuse the [C]ourt of being bias[ed] or prejudice[d] as it relates to him. The Court must not only avoid any impropriety, bias or prejudice but must avoid any appearance of such. The expressions and attitudes of Defense Counsel [Bright] as exhibited and announced in the instant motion toward this Court compromises the Court's ability to avoid any appearance of bias, prejudice, or to be fair and impartial as it relates to Defense Counsel [Bright] regardless [of] how hard it tries or what strides it makes toward guaranteeing that there would be no bias, prejudice and that it would be fair and impartial.

Bright Appellee Br. at 9 (emphasis deleted).

The next day, Judge Evans filed public journal entries in every other felony case that Bright had before Judge Evans and removed Bright from each of those cases, approximately seventy in total. R. 18 at 6–7 (Am. Compl. at ¶ 27) (Page ID # 142–43). In its opinion denying Judge Evans absolute judicial immunity, the district court reproduced an example of these entries:

Now comes the Court and orders that Michael L. Barr be substituted for counsel for the defendant. Attorney Robert W. Bright is relieved of further obligation due to the conflict he has created with the Court and as described in the case of State of Ohio v. [R.G.], ... to which reference is here made, and further due [to] the Courts's [sic] inquiry to the Office of Disciplinary Counsel, the Supreme Court of Ohio regarding Mr. Bright's conduct. Further, the Court finds it is not feasible/practicable to request the Ohio Supreme Court to assign a visiting judge to each of the approximately fifty to seventy cases currently handled by Mr. Bright due to financial burden to Gallia County judicial economy, scheduling of the court, the constitutional rights of the defendant, and the constraints/requirements of a speedy trial guaranteed to the defendant. The Court finds the simplest solution to this created conflict is to appoint new counsel for the defendant....

R. 43 at 7–8 (D. Ct. Op. Denying Immunity) (Page ID # 410–411) (citation omitted; emphasis deleted). Bright alleges that he sent a letter to Judge Evans in an “attempt[ ] to amicably resolve the situation....” R. 18 at 7 (Am. Compl. at ¶ 30) (Page ID # 143). Judge Evans did not respond. Id.

On September 7, 2011, the Corporation “terminated ... Bright's employment as a Public Defender because he could not practice before Judge Evans.” Id. (Am. Compl. at ¶ 32) (Page ID # 143). Bright alleges that the Corporation did so “without [holding] a hearing or [providing] other due process....” Id.

On September 4, 2012, Bright filed suit in district court against Judge Evans, the Board, and the Corporation. On November 29, 2012, he amended his complaint to include the Commission. In the Amended Complaint, Bright alleged several causes of action. First, Bright claimed that the Board, the Commission, the Corporation, and Judge Evans violated his First and Fourteenth Amendment rights...