Alabama Judicial Commission Violates Its Own Rules In Investigation Of Jeffco Judge Dorothea Batiste

Dorothea Batiste

The Alabama Supreme Court should take over the case against Jefferson County Judge Dorothea Batiste, in part, because the state's judicial inquiry commission has repeatedly violated its own rules in launching an investigation.

That is at the heart of a petition from Batiste attorney Julian McPhillips, asking the state's high court to take jurisdiction and issue a restraining order against the Alabama Judicial Inquiry Commission (AJIC) and its Court of the Judiciary. (See Part 1 and Part 2 of the petition and Batiste's response at the end of this post.)

In a letter accompanying the petition, McPhillips notes that complaints largely have come from former Jefferson County presiding judge Scott Vowell and not from litigants or parties who appeared before Judge Batiste. "To allow complaints stimulated by a third party such as Vowell . . . ," McPhillips writes, "violates the Code of Alabama's grant of authority to the AJIC."

McPhillips goes on to state:

This case has morphed into an abuse of process, because the AJIC has allowed itself to be transformed into a Super Appellate Court of Alabama to review decisions of Judge Batiste, even when the litigants are not complaining. 

It is also obvious that Scott Vowell has developed a runaway ego, in which he is power-tripping by trying to show Judge Batiste that he is more powerful than she, and that, by golly, if he complains, he's going to make the complaint stick.

How did the AJIC violate its own rules? McPhillips points to two primary issues. 

First, the main charge against Batiste is that she abused her discretionary contempt power against parties and witnesses who failed to appear in court. The commission's handbook for judges, McPhillips states, includes the following language:

The Commission . . . does not review . . . abuse of judicial discretion during a court proceeding absent evidence of bad faith.  

That seems clear-cut, but McPhillips says the commission does not seem to be familiar with its own handbook:

Nowhere in the 38-page AJIC complaint with 23 pages of exhibits is there any allegation that Judge Batiste engaged in bad faith, notwithstanding that the 147-paragraph complaint basically alleges abuses of discretion by Batiste in the use of her contempt power.

McPhillips then points to AJIC Rule 6 (concerning "Investigations"), which states:

Investigations may be instituted by the Commission only upon a verified complaint filed either by a member of the public or by a member of the commission . . .

Is the commission following its own rule. McPhillips says it's not even close:

Almost all of the complaints Scott Vowell has forwarded to the AJIC contain an unverified typed letter in which Judge Vowell purports to pass on complaints of unhappy litigants, which complaints are mostly also unverified. Many of these complaints do not reflect the subject matter of the complaint, or whether it was a litigant or attorney who was unhappy. These complaints are essentially anonymous, contrary to AJIC rules.

  

Scott Vowell

McPhillips questions the AJIC's motives in the Batiste case, noting that Vowell apparently enjoys cozy relationships with several commission members, including Judge Randall Cole, Judge/Chairman P. Ben McLauchlin Sr., and Attorney Amanda Dowd. Then McPhillips notes the absurd nature of some charges in the Batiste complaint. Much of this would be comical--if the charges were not so serious:

The AJIC has . . .  allowed former Jefferson County presiding Circuit Judge Scott Vowell to further abuse the process of the AJIC by stirring up litigants, witnesses, and attorneys, unhappy with Judge Batiste's divorce court rulings, through encouraging them, or assisting them, in filing multiple complaints against Ms. Batiste. Many of said complaints are frivolous or nonsensical. Some even involved two attorneys long since dead, namely Rusty Wright and Chris Christ. Indeed, one such frivolous complaint even involved a litigant supposedly unhappy with a continuation of the misspelling by Judge Batiste's office of the litigant's name, notwithstanding that the original misspelling began with the litigant's attorney. Reflecting his bad faith, Judge Vowell even encouraged this complaint.

Dorothea Batiste Petition I by Roger Shuler

Dorothea Batiste Petition II by Roger Shuler

Schnauzer Climbs Out Of Rubble In Oklahoma City To Represent The Fight For Survival Amid Tragedy

A miniature schnauzer climbs from
the rubble in Oklahoma City.

When we started this blog in June 2007, the title was meant to honor Murphy Abigail Shuler, a wonderful miniature schnauzer who enriched our lives for 11 years--and helped us survive the early years of our legal woes.

The idea was to celebrate Murphy's good heart, her keen curiosity, her feisty spirit. We had first-hand evidence of a schnauzer's remarkable spirit because Murphy filled our home with it throughout her life. But the world got an up-close look yesterday at a schnauzer's fighting spirit--thanks to a news video that might go down as the most touching moment ever captured in the YouTube era.

A reporter for CBS was interviewing tornado survivor Barbara Garcia amid the rubble of what had been her home and neighborhood. Ms. Garcia was describing how she had been holding her dog when the storm hit and chaos ensued, with seemingly everything that she had treasured gone. Ms. Garcia said she had called for her dog but he didn't come. "I know he's in here somewhere," she said, pointing to wreckage where there was no sign of life.

What happens next, starting at the :24 mark on the video, still takes my breath away--and fills my eyes with tears, even though I've watched it multiple times.

I can't tell if the dog is a pure-breed schnauzer or a schnauzer mix. But with the blunt muzzle and distinctive beard . . . well, there is no doubt this little survivor has deep schnauzer roots. And that indomitable spirit . . . I would recognize that anywhere.

Sound And Fury About Evolving Scandal At IRS Obscure Questions About Criminality And Karl Rove

Karl Rove

The IRS and its targeting of conservative groups has captured the nation's attention in recent days. But a more important IRS-related story might be flying under the radar.

A series of articles at the public-interest journalism site ProPublica raise questions about whether six "dark money" political groups, all conservative, committed criminal acts in seeking tax-exempt status from the IRS. Among the groups is Karl Rove's Crossroads GPS.

ProPublica published articles in December and January that raised questions about the process political organizations use to seek tax-exempt status as "social welfare" groups.  The issue did not gain major public traction until the IRS acknowledged on May 10 that it targeted tea-party groups to see if they were violating their tax-exempt status.

The resulting storm of national attention obscures a more important issue, according to a report yesterday from Richard Tofel, president of ProPublica. Writes Tofel:

Largely ignored in a public outcry last week—radio rants, Twitter storms, congressional, presidential and prosecutorial posturing--were the following:

Our pieces in December and January raised very serious questions about whether six different “dark money” political groups seeking tax exemption had made false statements on their applications. Those applications are signed under penalty of perjury. If any false statements were made knowingly, the groups— including Karl Rove’s Crossroads GPS —may have committed a crime. There is no indication, however, that either the IRS or the Department of Justice has done anything since January to investigate whether such crimes were indeed committed. The groups in question happen all to be conservative. Not one congressional Republican has, to my knowledge, expressed any concern about this possible criminality.

Gee, Karl Rove involved in criminal activity? Those of us who live in Alabama and have followed the political prosecution of former Democratic Governor Don Siegelman, which almost certainly was orchestrated by Rove while serving in the Bush White House, cannot imagine that.

ProPublica's December article, titled "Karl Rove's Dark Money Group Promised IRS It Would Spent 'Limited" Money On Elections," is particularly illuminating. From that article by reporter Kim Barker:

In a confidential 2010 filing, Crossroads GPS—the dark money group that spent more than $70 million from anonymous donors on the 2012 election—told the Internal Revenue Service that its efforts would focus on public education, research and shaping legislation and policy.

The group's application for recognition as a social welfare nonprofit acknowledged that it would spend money to influence elections, but said "any such activity will be limited in amount, and will not constitute the organization's primary purpose."

So $70 million represents "limited" spending for Crossroads GPS? One can only imagine how much the group would have spent if it had not felt so constrained. From Barker's article:

The tax code allows groups like Crossroads to spend money on political campaigns—and to keep their donors private—as long as their primary purpose is enhancing social welfare.

Crossroads' breakdown of planned activities said it would focus half its efforts on "public education," 30 percent on "activity to influence legislation and policymaking" and 20 percent on "research," including sponsoring "in-depth policy research on significant issues."

This seems at odds with much of what the group has done since filing the application, experts said. Within two months of filing its application, Crossroads spent about $15.5 million on ads telling people to vote against Democrats or for Republicans in the 2010 midterm elections.

"That statement of proposed activities does not seem to align with what they actually did, which was to raise and spend hundreds of millions to influence candidate elections," said Paul S. Ryan, senior counsel for the Campaign Legal Center, who reviewed the group's application at ProPublica's request.

In other words, someone at Crossroads GPS probably lied to the IRS, under penalty of perjury, about the group's purposes. And that, Richard Tofel writes, would constitute a crime.

Does Tofel expect Rove or his associates to be held accountable? It doesn't sound like it. The ProPublica chief seems to think most officials--amid calls for investigations in the wake of this month's revelations--are not serious about IRS issues:

And what of the investigators? Congressional committees leapt into action. The inspector general for the IRS had apparently already investigated. The President demanded another investigation; the Department of Justice said it had commenced a criminal inquiry.

Knowing that such is the way in Washington, we waited at ProPublica for someone to send us a subpoena, show up on our doorstep, or maybe just call. Nothing. Nothing since December 13, when we told the IRS we had these documents they weren’t supposed to have sent us—or since the next day, when we published that fact. Nothing before the inspector general reached his conclusion, nothing before the congressional hearings started televising their demands for answers and their righteous indignation, nothing since.

In point of fact, the investigators would have found out that we have nothing of value to them. But the fact that they didn’t even ask tells you a lot. And it reinforces the point that much of the heat generated last week on this subject is just the latest expression of Washington cynicism and its consequences—that the talk show hosts and their fellow travelers, and the representatives and senators and officials in the executive branch, aren’t really looking for answers here. They’re just putting on a show.

Legal Schnauzer And Our Reporting On Injustice Land In The Spotlight At National Web Sites

Our reporting on justice issues in Alabama and beyond has drawn the attention of national Web sites in recent days.

New York-based Above the Law (ATL), which might be the nation's most widely read legal Web site, yesterday highlighted our post on Jefferson County Circuit Judge Robert Vance Jr. and the  $25-million federal lawsuit pending against him. An item on the Vance case was included in ATL's "Non Sequitirs," a daily roundup of unusual legal news. 

The day before, the Philadelphia-based progressive Web site OpEd News (OEN) included an interview with yours truly about President Obama's reaction to the IRS scandal. Joan Brunwasser, who I consider one of the finest interviewers in the progressive blogosphere, focused on Obama's outrage over the IRS's targeting of conservative groups compared to his apparent unconcern about Justice Department abuses, such as the political prosecution of former Alabama Governor Don Siegelman. Brunwasser's piece is titled "Obama A Big Hypocrite? Ask Legal Schnauzer, Roger Shuler."

Today, Debra J. Saunders, of the San Francisco Chronicle, cites our work while examining  Eric Holder's sorry performance in a piece at sfgate.com. The Saunders piece is titled "He Ain't Heavy, He's My Attorney General."

Our blog has enjoyed a substantial national (even international) audience for several years, but it is particularly gratifying to have fellow journalists take note of our work--and the role that activities in Alabama play on the big legal stage.

Above the Law is the brainchild of Yale law graduate David Lat, who has found a sizable audience for his site's snarky, gossipy, insider take on the world of law. Here is ATL's take on the Vance lawsuit:

Alabama judge faces $25 million lawsuit alleging he improperly took a case from another judge and issued damaging rulings. This is the judge who ran against Chief Justice Roy “Don’t Remove the Ten Commandments From the Courthouse” Moore. The moral of the story is: don’t use the Alabama judicial system. [Legal Schnauzer]

Unfortunately, for those of us who live in "The Heart of Dixie," the Alabama legal system is the only one we have. 

At OpEd News, Brunwasser and I take a big-picture view at Obama's response to the notion that government agencies target certain individuals and groups for political reasons. Brunwasser asked what bothered me about Obama's reaction to the IRS scandal, and here is part of my response:

In early January 2009, just a few days before he took office, President-Elect Obama said he intended to "look forward, as opposed to looking backwards" on apparent crimes under the Bush administration. As president, Obama seems to have followed through on that pledge because his Justice Department has failed to review political prosecutions such as the one involving former Governor Don Siegelman in Alabama, where I live. 

Political prosecutions, of course, were just of one of many improper acts on the justice front during the Bush years--torture, warrantless wiretapping, firings of U.S. attorneys were among the others. In essence, Obama issued a decree that no one would be held accountable for those acts. 

Obama's "look forward" statement made no sense at the time, and it makes even less sense now, coming after he expressed outrage the other day over disclosures about the IRS targeting conservative groups for political reasons. Obama said in a news conference that he would not "tolerate" such actions, that wrongdoers must be held "accountable," and the problem must be "fixed." 

But his inaction toward the DOJ shows that he will tolerate the targeting of political opponents, that he will not hold individuals accountable for such actions, and he will not take steps to fix the problem. Obama was uttering empty words at his press conference about the IRS. Many of us expect that from a Republican chief executive; we should demand better from a Democrat.

Are there signs of hope for those who want the Obama administration to address DOJ abuses? I struggled to find any:

I don't believe progress will be made until the Obama DOJ grows a spine and initiates an investigation of the Siegelman case and other Bush-era political prosecutions. Pardoning Don Siegelman would be a positive step. But we cannot allow such manipulation of our justice apparatus to remain unaddressed. If Obama leaves office with these issues still hanging, he has been a failure, in my view.

Also, this could wind up at Obama's doorstep someday. He has appointed any number of large donors to ambassadorships and such. Once he's out of office, a Republican DOJ could claim that appointments involved "inferred quid pro quos," and Obama and those donors could be at huge risk. The president ignores this issue at his own peril.

More importantly, it imperils the Democrat Party. Are candidates and donors going to get involved if they know they might wind up in federal prison for engaging in standard political behavior? The Siegelman case already has had a chilling effect here in Alabama. Many statewide offices no longer attract a serious Democratic candidate. If political prosecutions are allowed to stand, look for that trend to spread to other states.

Meanwhile, Debra J. Saunders calls Eric Holder "President Obama's worst appointment"--and we certainly agree with that assessment. From the Saunders piece:

Attorney General Eric Holder is President Obama’s worst appointment. Holder started out with baggage — the Clinton pardons of Marc Rich and unrepentant Puerto Rican terrorists. With the media leak investigations, he is carrying more baggage. And Holder’s load is likely to become heavier. 

Debra J. Saunders

Nonetheless, the president told reporters last week, Holder has Obama's full support. 

Rep. Steve Cohen, D-Tenn., questioned Holder about the pardon process as he urged the AG to consider pardoning former Alabama Gov. Don Siegelman. Roger Shuler of the Legal Schnauzer blog reports on the issue here. There’s some political risk in pushing for a pardon for a fellow politician, but Cohen has bipartisan cover. And the exchange shows the pressure that will be brought to bear on the president as he is about to leave office. 

Will Obama decide he wants to commute and pardon politically-connected offenders? Or will he continue to use this presidential power sparingly?

Saunders explores those issues in a piece titled "Obama Is Stingy With His Pardons." It's important reading for all of us who have closely followed the Don Siegelman saga.

From "Hotel California" to "The Chilton Hilton," Bonnie Cahalane and Don Felder Share Legal Woes

Bonnie Cahalane

An Alabama woman who was unlawfully incarcerated for five months last year has something in common with a man who co-wrote one of the most memorable songs of the rock-and-roll era.

Bonnie Cahalane and Don Felder surely never set out to help illustrate a fundamental legal concept, one that often is accompanied by rancor, stress, and major doses of general unpleasantness. But their stories intersect in a way that spotlights a critical difference between a contract that is valid and one that is not.

That thought struck me the other night as I was watching History of the Eagles: The Story of an American Band, a Showtime documentary about the country-rock group that came to define the Southern California Sound of the 1970s. Produced by Academy Award winner Alex Gibney, History of the Eagles likely will be one of the most-watched documentaries of 2013. Over the course of three hours, the film covers the band's 42-year history--from its formation in 1971, to a breakup in 1980, to a 14-year "vacation" that involved numerous solo projects, to a reunion in 1994, to its current status as one of the biggest concert draws on the planet.

I set out to watch the film mainly because I long have admired the Eagles' music, especially the contributions of the two remaining founding members, Don Henley and Glenn Frey. Any list of the greatest songwriting teams in music history surely is topped by Lennon and McCartney. But Henley and Frey--whose partnership helped produce "Desperado," "One of These Nights," "Take It to the Limit," "Life In the Fast Lane," "New Kid in Town," "The Long Run," and many more--deserve a spot mighty high on the list.

History of the Eagles captures the conflicts and tension that drove the band to staggering heights--and the film is filled with the stories behind many songs that became staples of classic-rock radio, so there is much for the music lover to enjoy. But darned if I didn't come away thinking about the law--and one of our ongoing stories here at Legal Schnauzer.

How on earth did that happen? Well, it started from what I know about the legal travails of Clanton resident Bonnie Cahalane, who spent five months last year in the Chilton County Jail, known to many central Alabamians as "The Chilton Hilton." The facility's nickname might cause you to smile, but spending time behind bars there most assuredly is not fun--especially when you are there contrary to black-letter Alabama law.

(Note: We have referred to Ms. Cahalane in previous posts as Bonnie Cahalane Wyatt. But she now has a certificate of divorce from Harold Wyatt and goes by her maiden name of Bonnie Cahalane.)

Chilton County Circuit Judge Sibley Reynolds held Cahalane in contempt and threw her in jail for failure to pay a property-related debt from her divorce case. Clear Alabama case law--perhaps best stated in a case styled Dolberry v. Dolberry, 920 So. 2d 573 (Ala. Civ. App., 2005) --holds that a party is not subject to contempt and incarceration because of a property-related debt from dissolution of a marriage.

Cahalane was released from jail on December 18, 2012, after an agreement was reached that she would sell her house to pay off an alleged debt to Harold Wyatt for his equity in the property.

Sources tell Legal Schnauzer that the agreement was reached in Reynolds' courtroom while Cahalane was wearing jail clothes. Court documents indicate she was going to return to jail that day if she did not agree to sell her house. The property currently is on the market, listed with a RealtySouth agent named Amber Darnell. We have a number of questions for Ms. Cahalane's attorney, Angie Avery Collins of Clanton, and we left a message at her office on Friday.

Does Amber Darnell have a valid contract to sell Bonnie Cahalane's house? No, she does not. That's because of a legal concept--well stated in a case styled Claybrook v. Claybrook (Ala. Civ. App., 2010)--that holds a contract is void when it is reached under duress. If the threat of being unlawfully returned to "The Chilton Hilton" is not duress, I'm not sure what is.

That brings us back to "Hotel California" and Don Felder. For all of the Eagles' hits, their signature song is "Hotel California," about a mythical resort where "you can check out any time you like, but you can never leave." The song won the 1977 Grammy Award for Record of the Year and ranks No. 49 on Rolling Stone's list of "The 500 Greatest Songs of All Time." The song's closing guitar solo was voted the best solo of all time by readers of Guitarist magazine.

Don Felder

Who created "Hotel California"? Henley and Frey are credited as two of the three writers, and they wrote the lyrics and shaped the melody. But the famous solo, the instantly recognizable guitar intro, and the entire basic music track were written by Don Felder. His name is listed first among the writers, and that is because his music track gave birth to the entire song--a tune that still will be played long after everyone currently on earth has perished.

Like Bonnie Cahalane, Don Felder knows a thing or two about signing a contract under duress. That episode provides one of the key moments in History of the Eagles. The documentary surely was not designed to teach a mini seminar on contract law. But that's exactly what it does.


(To be continued)

Jefferson County Circuit Judge Robert Vance Jr. Faces Lawsuit Seeking $25 Million In Damages

Robert Vance Jr.

An Alabama judge faces a federal lawsuit that alleges he took a case from another judge and issued unlawful rulings that caused substantial financial harm to a trust organized under Nevada law. The William B. Cashion Nevada Spendthrift Trust and Alabama resident Steven Mark Hayden seek $25 million in damages from Jefferson County Circuit Judge Robert Vance Jr.

The complaint, filed by Bessemer attorney Austin Burdick, alleges that lawyers from the Birmingham firm Maynard Cooper & Gale engaged in flagrant forum shopping, taking a number of improper steps to ensure that Vance would handle the underlying case.  (See federal complaint at the end of this post.)

Vance, a Democrat, ran in 2012 for chief justice of the Alabama Supreme Court and lost in the general election to Republican Roy Moore. We adamantly opposed Vance's run for a seat on the state's highest court, and now we have more evidence that he is not fit to serve on any bench, much less in a leadership capacity.

Charges that Vance would unlawfully favor Maynard Cooper & Gale (MCG) and one of its wealthy clients should come as no surprise to the public. I've written a series of articles showing that Vance has a history of unlawfully favoring large, downtown-Birmingham law firms over everyday litigants. (See here, here, and here.)

Vance comes from what might be called "Alabama legal royalty."  His father, Robert Vance Sr., was a federal judge who was killed by a mail bomb in 1989. His wife, Joyce White Vance, is the current U.S. attorney for the Northern District of Alabama, appointed by President Barack Obama. Because of his family history, Vance Jr. enjoys a strong reputation among lawyers--but the general public should not be fooled by that. I tend to be supportive in this space of Democrats, but Robert Vance Jr. has proven that his main interest is protecting the interests of his colleagues in the legal establishment.

What about the pending federal lawsuit against Vance Jr. The doctrine of judicial immunity generally protects judges from lawsuits for actions taken on the bench. But Burdick's complaint alleges that Vance usurped the authority of another judge, took a case that was not assigned to him, and repeatedly acted outside his judicial capacity to issue orders that benefited MCG's client.

Burdick filed a Motion for Recusal in an underlying state case on January 9, 2013, but Vance refused to step down. Burdick then filed a Petition for a Writ of Mandamus, asking the Alabama Supreme Court to force Vance to step aside. The petition was denied without briefing, meaning the state's high court did not even address the merits of the claims against Vance.

A federal lawsuit, styled William B. Cashion Nevada Spendthrift Trust and Steven Mark Hayden v. Robert S. Vance Jr., 2:13-CV-0286-SLB, was filed on February 11. The Alabama Attorney General's Office filed a Motion to Dismiss on Vance's behalf, and Burdick filed a response on April 10. U.S. District Judge Sharon Lovelace Blackburn initially scheduled a hearing on the Motion to Dismiss, but when one of the parties asked for a continuance due to a scheduling conflict, Blackburn announced that she would rule on the motion based on the pleadings, without oral argument.

It is not known when Blackburn will issue a ruling, but Vance has a hearing set in the underlying state case for Friday, May 31.

At the heart of the controversy is William B. Cashion, an 84-year-old businessman who is co-founder of Bessemer-based Western Steel Inc. (WSI) and a shareholder in several other Alabama corporate entities. In 2007, while in the midst of a divorce, Cashion executed a durable power of attorney, designating his nephew, Dr. Steven Mark Hayden, as his agent and attorney-in-fact.

Cashion remarried in 2008, and his new wife, Frankie B. Cashion, states in court documents that her husband became obsessed with investments in Alabama gold mines that supposedly were to generate large sums of revenue. Mrs. Cashion states in an affidavit that her husband invested almost $7 million in the gold-mining project before she was able to stop him. "He is at risk of selling interest in his fraudulent gold mine to other investors which would be based on fraudulent assays. . . . , " Mrs. Cashion states. "His family, friends, and business are being harmed by his poor judgment."

In 2011, Dr. Steven Hayden used his authority as power of attorney to form the William B. Cashion Nevada Spendthrift Trust (WBC Trust), and all of Cashion's stock in WSI was transferred to the Trust. Angela Rae Hayden, Steven Hayden's wife, serves as trustee of the WBC Trust, and the Haydens live in Wetumpka, Alabama, where he practices family and emergency medicine. Court documents show that Steven Hayden is the current president of Western Steel, Inc., replacing Gene Calhoun, who retired in 2012.

William B. Cashion filed a lawsuit in Clark County, Nevada, claiming the WBC Trust is not valid, and that case was dismissed with prejudice in April 2012. Cashion filed a state action in Alabama, seeking relief similar to that in the Nevada case. Cashion's primary lawyers in Alabama are James P. Naftel II, Jim Goyer, and John D. Bethany Jr., of MCG.

The Alabama case, styled William B. Cashion and Western Steel Inc. v. Steven Mark Hayden, et al, CV-2012-209, was assigned to Jefferson County Circuit Judge Houston Brown. But according to Burdick's federal complaint, Vance unlawfully seized the case and issued four rulings that all were favorable to MCG and its primary client, William B. Cashion.

MCG's first curious move was filing the case in the Birmingham Division of Jefferson County. Burdick claims the proper venue is Elmore County because none of the parties resides in or maintains a principal place of business in the Birmingham Division of Jefferson County.

After filing the state case on February 8, 2012, MCG lawyers filed a motion to transfer the case to the Commercial Litigation Docket, which was created by Jefferson County Circuit Court (Birmingham Division) Administrative Order No. 2009-23. Vance has come to handle most of the cases on the Commercial Litigation Docket.

Court records show the case was assigned to Judge Brown at 2:02 p.m. on February 8, but at 3:30 p.m. on that date, Judge Vance issued a temporary restraining order (TRO) sought by MCG lawyers, on behalf of Cashion and Western Steel.

In the federal complaint, Burdick cites this as the first sign of Vance's improper actions in the state case:

At the time that Vance signed the TRO he did so with knowledge that he did not preside over the case. The electronic case action summary reflects that Judge Vance had available on his computer the notice and assignment of the case to Judge Houston Brown.

Less than 20 minutes after the case had been assigned to Brown, MCG lawyers approached him for an ex parte order that would transfer the case to Vance. Brown entered an order submitting the issue of reassignment to the presiding circuit judge, pursuant to the Alabama Rules of Judicial Administration. But Vance jumped the gun, acting repeatedly before the case was assigned to him. From Burdick's federal complaint:

However at that time Judge Brown was not relieved of authority to preside over the case, and Vance was not granted authority or jurisdiction over the case. At that time, the case was not before Judge Vance. Judge Brown in his order made no claim that he had authority to transfer the case to Judge Vance. In fact, Judge Brown at that time did not have authority to transfer or reassign the case as he was not the presiding judge in the circuit. Judge Vance also had no authority to transfer the case to his own docket.

Burdick alleges that neither Cashion nor his MCG lawyers were concerned about following proper procedure. Instead, the federal complaint states, they mainly were concerned about getting the case before a favorable judge, Robert Vance Jr.:

It is clear that Cashion and  his attorneys wanted Judge Vance to preside over their case. Cashion first filed the case in a venue where none of the parties to the action resides or maintains a principal place of business. Cashion filed a motion with his complaint requesting that the matter be transferred to the Commercial Litigation Docket. All cases approved for the Commercial Litigation Docket are assigned to Judge Vance unless he declines them on the basis of docket volume. . . . Cashion went to an improper venue specifically to select Judge Vance. 

Judge Vance not only accommodated this forum shopping, he ventured to rule on the case before the forum shoppers even made it to the checkout aisle.

J. Scott Vowell, who then was presiding judge in Jefferson County, entered an order on March 14, 2012,  transferring the case to Vance. But by then, Vance already had issued four orders in the case--all favorable to MCG and its client, William B. Cashion. From the federal complaint:

Because these orders were rendered in a matter not assigned to Judge Vance, they represent non-judicial acts under the color of law. Vance's acts . . . violate both the substantive and procedural due process rights of the Trust and Hayden.

Did Vance's actions have consequences? The federal complaint answers that question with an emphatic "yes":

Said extra-judicial orders were prejudicial to the Trust in that they prevented the Trust from performing its duties to nurture the trust principal. The Trust suffered the loss of considerable investment returns and interest. The Trust also was deprived of assets valued at more than $20,000,000.00.

The Trust and Hayden also continue to suffer considerable costs and attorneys fees in an effort to overcome Vance's usurpation of judicial authority.

Why did MCG want the case before Robert Vance Jr.? That brings us to sticky campaign-finance issues--and we will address those in upcoming posts.


(To be continued)

Federal Complaint Against Robert Vance Jr. by Roger Shuler

Was AG Eric Holder Mistaken, Misleading, Or Evasive In His Answers To Congress About Siegelman Case?

Eric Holder

(Updated at 11:55 a.m. on 5/16/13)

U.S. Attorney General Eric Holder yesterday said it's his understanding that former Alabama Governor Don Siegelman has an active appeal and therefore is not eligible to have his sentence commuted.

As a journalist based in Birmingham, I have followed the Siegelman case closely since this blog began in June 2007--and I am not aware of any active appeal on Siegelman's behalf. Former HealthSouth CEO Richard Scrushy, who was codefendant in the case, has an appeal pending before the Eleventh Circuit in Atlanta, but that was not filed by Siegelman's lawyers.

If Siegelman has an active appeal, it has escaped my attention. And that raises this question: Is Eric Holder mistaken or did he intentionally make a misleading statement to Congress and the American people? I have sent queries to Siegelman's legal team, seeking clarification about any appeals, plus their response to Holder's statements. We will update this post as new information becomes available.

(Update: Joseph Siegelman, the governor's son, released the following statement on a progressive listserv in Alabama: 

Yes, my dad is appealing [Judge Mark] Fuller's denial of a new trial. Nonetheless, Holder does appear to be hiding behind those in-house guidelines to avoid dealing with the case head on.)

Holder's remarks came in response to questions from U.S. Rep. Steve Cohen (D-TN) in a House Judiciary Committee hearing. A video of the exchange can be viewed at the end of this post.

Debra J. Saunders, of the San Francisco Chronicle, strongly criticized Holder's performance in a piece titled "Eric Holder has a bad memory on pardons." From the Saunders post:

At Wednesday’s House Judiciary Committee hearing, Rep. Steve Cohen, D-Tenn., asked Attorney General Eric Holder if he would push for a presidential pardon for former Alabama Gov. Don Siegelman. “The president could pardon him now,” said Cohen as he pressed Holder.

Holder responded that Siegelman is not eligible to apply for a pardon because he’s currently serving his sentence, and a commutation not possible because he has an appeal. Cohen rightly noted that those are Department of Justice rules, but they do not constrain the president. Holder agreed: “The president’s pardon power is close to absolute.”

Cohen then noted that Ron Rodgers, a pardons attorney with the Department of Justice (DOJ), is a George W. Bush appointee--an apparent reference to the fact Siegelman was prosecuted under the Bush DOJ. Cohen then asked about Rodgers' apparent ethical lapses. The unasked question hanging over this exchange: "Why in the hell is Mr. Rodgers still in his position, with authority over the Siegelman pardon process?" From the Saunders piece:

Is your Pardon Attorney Ron Rodgers under investigation for withholding information? Cohen asked, referring to an Inspector General probe.

Holder answered:

“There were some difficulties in connection, I don’t remember what the individual’s name was, about information that was I guess relayed to the White House from the Pardon Attorney’s office, but I think corrective measures have been put in place so that kind of mistake would not happen in the future.”

The individual’s name — and Holder should know it – is Clarence Aaron, who outrageously was sentenced to life without parole for a first-time nonviolent drug offense. And Holder should be outraged that Pardon Attorney Ronald Rodgers withheld vital information on Aaron’s case. The only corrective measure that can prevent a repeat would be to remove Rodgers from a position for which he temperamentally is unsuited.

Saunders closed her post with a cutting critique of Holder's record:

By the way, none of the 16 Puerto Rican national terrorists pardoned by President Clinton — with an assist from Holder — had applied for pardons. But that didn’t stop Holder at the time. But then this Attorney General never has been overly preoccupied with any notions of justice.

Steve Cohen got to the heart of profound issues raised by the Siegelman case--and he never received much of a response from Eric Holder:

Numerous legal experts have said this was a grave injustice . . . Can you assure me that you will review his case because in my opinion . . . an innocent man is in jail, being deprived of liberty? Nothing is more important than liberty; taking your liberty is probably the harshest thing the government can do to a person. We have taken this gentleman's liberty, and I believe we need to look at that case."

Judge Dorothea Batiste Alleges In EEOC Complaint That Scott Vowell Unlawfully Changed Her Rulings

Dorothea Batiste

A retired Jefferson County presiding judge, who is white and male, routinely changed rulings of a black, female circuit judge, according to a complaint filed with the Equal Employment Opportunity Commission (EEOC).

Circuit Judge Dorothea Batiste, who is under suspension from the Alabama Judicial Inquiry Commission (JIC), makes the allegations against J. Scott Vowell, who served on the bench from 1995 until his retirement at the end of 2012. Batiste alleges that Vowell orchestrated JIC complaints against her in retaliation for rejecting his sexual advances, which started about three months after she took office in January 2011.

The JIC complaint against Batiste is based mainly on her alleged abuse of contempt powers in domestic-relations cases. But Batiste alleges in her EEOC complaint that Vowell took no action against a white female judge who made ample use of her contempt powers in the domestic-relations division. (The full EEOC complaint, with exhibits, can be viewed at the end of this post.)

In essence, Batiste alleges that Vowell unlawfully served in her cases as an appellate judge, a role that goes far beyond the duties of a presiding judge under Alabama law. If proven, Vowell's actions could make him the target of lawsuits for acting outside his jurisdiction. They might constitute criminal contempt of court and could even rise to the level of criminal acts under state and federal law.

How brazen was Vowell? Batiste spells it out on page 2 of her EEOC complaint:

Even back in 2011, but continuing on into 2012, Judge Vowell would make a point of upsetting me by finding cases where I had issued rulings and, without telling me in advance he was doing so, then would enter documentary paperwork to change my rulings. In addition, Judge Vowell took cases away from me, without my permission or knowledge, to favor certain litigants, some of whom were his friends. This included certain lawyers. When I found out about this, I was quite upset and told him he should not be doing this--that it was not right, nor ethical, and it had to stop. In reply, Judge Vowell said, "I don't care what you have to say."

The material in bold strongly suggests that Vowell was not just discriminating against Batiste--he also was acting to favor certain litigants and lawyers with whom he was friendly. If proven, this represents a gross obstruction of the justice process and indicates that Vowell probably has knowingly been involved in the hunting-club corruption that has infested Jefferson County divorce courts for years.

Multiple federal lawsuits have been filed over hunting-club issues, with Samford University law professor Joseph Blackburn playing a leading role for plaintiffs, but the cases have been dismissed on dubious grounds so far. In one federal case, Blackburn represented himself as a plaintiff, claiming his divorce from U.S. District Judge Sharon Lovelace Blackburn was tainted with corruption. In another, Blackburn served as an attorney for a number of Jefferson County residents who alleged they were victims of a rigged divorce-court system.

We have written extensively about the hunting-club issue, noting the apparent efforts of federal judges to dismiss the cases and deny discovery, contrary to law. Here are three key posts we've written on the subject:

Courts Try to Sweep Hunting-Club Corruption Under the Rug in Alabama (May 8, 2012)

Here Is More Evidence That Federal Judges Are Trying to Hide Hunting-Club Corruption in Alabama (Aug. 13, 2012)

Why Were No Opinions Issued On Appeals of Alabama Hunting-Club Lawsuits? (Sept. 4, 2012)

The public record shows that, at the very least, Scott Vowell allowed hunting-club corruption to fester on his watch as presiding judge. But Batiste's allegations, if proven, indicate Vowell actively took part in the corruption.

Scott Vowell

Alabama law states that the primary role of a presiding judge is to supervise judges and court personnel to "see that they attend strictly to the prompt, diligent discharge of their duties." (See Code of Alabama 12-17-24.) Circuit courts serve an appellate function over matters that originate in district or municipal courts. (See Code of Alabama 12-11-30.) But the domestic-relations cases before Batiste originated in circuit court, so Vowell had no authority to act on those matters. Appellate authority rests solely with the Alabama Supreme Court, plus the courts of civil and criminal appeals. (See Code of Alabama 12-2-7.)

Batiste's EEOC complaint indicates Vowell undermined her authority at almost every turn:

What especially upset me, starting at the end of the summer of 2011 and continuing into 2012, was that Judge Vowell (as he himself later has admitted in a letter) started meeting with lawyers representing litigants in my courtroom. [See Judge Vowell's letter admitting to it. Exhibit 1.] However, it also later became obvious that Judge Vowell was stirring up lawyers unhappy with their client's rulings in my courtroom. Of course, in a divorce case, one side is always unhappy, and frequently both sides. Both sides are usually quite unhappy even before they get to the courtroom.

As for use of contempt powers, Batiste says Vowell seemed unconcerned when such powers were used by a white judge. Batiste points to Circuit Judge Suzanne Childers, who became known for carrying a gun on the bench:

There is another example of disparate treatment given by Judge Vowell to a white female judge, namely [Suzanne] Childers, of the Jefferson County Circuit, Domestic Relations Division. She sentenced litigant Keith Muhammad to 325 days . . . for non-payment of child support, and he actually served it from October 6, 2011, to January 5, 2012. In fact, this judge issued such orders on a routine basis (sometimes putting 2 to 3 people in jail in different cases on the same day). Scott Vowell never complained about Ms. Childers to the AJIC. Instead, when she asked for extra help, Scott Vowell gave it to her. [See Exhibit 7].

Batiste Discrimination Charge by Roger Shuler

Did GOP's Luther Strange Commit the Same "Crime" That He Alleges Against Democrat Lowell Barron?

Lowell Barron

The Republican attorney general of Alabama has indicted a prominent Democrat for alleged violations of ethics and campaign-finance laws.

Public records, however, indicate the Republican AG has committed the same "crime" he is alleging against a Democrat. It all suggests the political prosecutions that plagued our state during the George W. Bush years have not gone away--their point of origin simply has shifted from the U.S. Department of Justice to the state attorney general's office.

AG Luther Strange accuses former state senator Lowell Barron, in an April 19 indictment, of illegally transferring $58,000, plus title to a 2007 Toyota Camry, to former campaign staffer Rhonda Jill Johnson.

According to press reports, the charges stem in part from Barron listing his payments to Johnson as "administrative" expenses. But a review of Luther Strange's 2010 campaign expenditures show that he made 14 "administrative" payments to MDM 27 Holdings Inc., a company owned by his former campaign manager, Jessica Medeiros Garrison. (Strange's campaign expenditures, from 6/10/2010 to 10/23/2012, can be viewed at the end of this post.)

The administrative payments, when combined with three "consulting" payments, total $207,015.26 to MDM 27 Holdings.

If it is a crime for Lowell Barron to transfer $58,000 or so to a former campaign staffer, wouldn't it also be a crime for Luther Strange to transfer more than $200,000 to a company owned by a former campaign staffer?

We have a hard time finding a distinction between Barron's "crime" and Strange's "non-crime." If anything, Strange's actions look more fishy than Barron's. Strange's payments to Jessica Medeiros Garrison are almost four times those involved in the Barron case. And deception appears to be involved in Strange's payments, which went to a holding company rather to Garrison directly. Barron made the payments directly to Johnson, and he reported them as required by law. If deception is part of this alleged crime, it's hard to see where any was present in the Barron case.

Barron once was one of the state's most powerful politicians, spending six terms in the state house before losing his 2010 race. He reportedly maintains a sizable campaign war chest and is expected to attempt a political comeback in 2014.

Is that the real reason the attorney general's office targeted Barron? Is this another case of a Democrat being indicted for standard political behavior in the Deep South? Joe Espy, Barron's attorney, touched on those issues in a recent report at al.com:

Barron's attorney, Joe Espy, said there was no denying the transactions took place between Barron and Johnson because they were a part of Barron's campaign finance disclosures. The issue is the interpretation made by Strange, Espy said, that laws were broken in those transactions.

"How could we dispute the transactions not taking place when we publicly disclosed them?" Espy said "Sen. Lowell Barron and his campaign publicly disclosed every transaction we're talking about. We don't dispute them. We said, 'Hey, we ran a campaign, these are our expenses and we paid this lady.' That's about as simple as I can make it.

"Does it take two years to bring charges against a man who is not a public official . . . who has publicly disclosed everything they bring out? Does anything address your common sense and tell you something is wrong? Every smell test I know, it does not pass."

Luther Strange Campaign Expenditures by Roger Shuler

The President Paints Himself Into An Ethical Corner By Voicing Outrage Over Evolving Scandal At The IRS

When Barack Obama said in January 2009 that he planned to "look forward as opposed to looking backwards" at the apparent crimes of the George W. Bush administration, reasonable observers knew that comment would come back to bite the president-elect some day.

That moment came yesterday when President Obama told reporters at a White House press conference that he was outraged over disclosures that the Internal Revenue Service (IRS) had singled out conservative groups for special scrutiny.

Obama went so far as to say that he would not tolerate a government agency that targets individuals and groups based on political affiliations. But those words ring hollow when you realize that Obama has tolerated exactly such behavior from the outset of his administration. The president's words are especially hollow here in Alabama, where we've held front-row seats to the political prosecution of former Democratic governor Don Siegelman during the Bush years--not to mention the politically charged Alabama bingo prosecution under the Obama Department of Justice (DOJ).

How serious are the IRS disclosures? A report from The Washington Post makes clear that they are ugly, indeed:

Internal Revenue Service officials in Washington and at least two other offices were involved with investigating conservative groups seeking tax-exempt status, making clear that the effort reached well beyond the branch in Cincinnati that was initially blamed, according to documents obtained by The Washington Post.

IRS officials at the agency’s Washington headquarters sent queries to conservative groups asking about their donors and other aspects of their operations, while officials in the El Monte and Laguna Niguel offices in California sent similar questionnaires to tea-party-affiliated groups, the documents show.

IRS employees in Cincinnati told conservatives seeking the status of “social welfare” groups that a task force in Washington was overseeing their applications, according to interviews with the activists.

Obama reacted with understandable indignation. Reports The Post:

In a news conference Monday, President Obama said he learned of the investigating in media reports on Friday and has “no patience with it.”

“If in fact IRS personnel engaged in the kind of practices that have been reported on, and were intentionally targeting conservative groups, then that’s outrageous,” Obama said. “And there’s no place for it. And they have to be held fully accountable.”

How can we square Obama's calls for accountability in the IRS scandal with his vow to ignore DOJ abuses? We can't. The president long ago punted his moral authority on abusive government actions--and there is no getting it back now.

Let's consider just a little of what we know about the Siegelman case--and it is only one of dozens of political prosecutions during the Bush years. We touched on the subject last week with a post about former HealthSouth CEO Richard Scrushy, who was released last summer after being imprisoned for almost six years in the Siegelman case. In an interview with HuffPost Live, Scrushy said government investigators made it clear that he could avoid prosecution by agreeing to testify falsely against Siegelman. Here is the quote from Scrushy:

The way our prosecution system works is through a "snitch process." I was asked to snitch on the governor, and they were going to let me out. But I would have had to lie and I said, "No, I’m not going to get up there and say a man did something he didn’t do." It’s a sad situation for our country.

Does the IRS scandal look bad? Yes. Does it compare with ongoing corruption in the U.S. Department of Justice, from rogue prosecutors to crooked federal judges? Not even close.

Since the IRS story broke last Friday, conservative voices have been squealing, calling for Congressional inquiries and the like. These are pretty much the same conservative voices who were silent when Bush adviser Karl Rove was anally raping the ideals that undergird our justice system.

No one, of course, should be surprised at such hypocrisy from conservatives. But we should expect far better from Barack Obama, especially on justice issues. So far, the president has failed to deliver at every turn.