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Tuesday, August 19, 2008

Raising Judicial-Corruption Issue Sparks Vigorous Debate

Your humble blogger has taken to occasionally writing diaries at Daily Kos, that vast repository of progressive opinion and debate.

One of my recent scribblings drew an interesting response from what I assume is a pretty liberal crowd at the Kos.

The subject was judicial corruption, and I presented several proposals for addressing the problem. I also raised the issue of a California-based organization called Jail 4 Judges, which proposes a Judicial Accountability Initiative Law (J.A.I.L) that would rework the concept of judicial immunity in our country.

J.A.I.L., the brainchild of a man named Ron Branson, would not eliminate judicial immunity. But it would subject the concept to citizens' panels of Special Grand Jurors who would determine if immunity should apply in specific cases. My understanding is that J.A.I.L. would apply to cases where a judge's application of procedure, statutory law, case law, or legal precedent is alleged to be clearly wrong; it is not aimed at discretionary rulings.

I don't consider myself an expert on J.A.I.L., but I have followed the movement for a while. I think Branson has identified a significant problem in our country, and his proposals seem reasonable and deserving of serious public debate.

So I was a bit surprised at the response my Daily Kos piece attracted the other day. It drew 70-plus comments, which is not a lot by Daily Kos standards, but it was the most any of my diaries had drawn. And quite a few of the comments were negative or dismissive. A few people even accused me of being a Republican. (Ouch! Dear God, call me anything, but please don't drop that label on me!)

The diary and the comments, along with my attempts to defend my position, can be read here.

A few thoughts from my most recent Kos experience:

* It's almost as if a squadron of lawyers is assigned to check out Daily Kos and swoop down upon anyone who raises questions about the nobility of the legal profession. I would guess that eight to 12 lawyers were involved in our discussion, and almost all of them were taking the opposing side from yours truly.

* I certainly don't mind folks disagreeing with me, and indeed, you expect that to happen when you write at a heavily traveled site like Daily Kos. But some of the comments had a tone of "You must be a right-wing nut job if you raise questions about the judiciary or the legal profession in general." I think progressives are making a mistake if they take that approach. After all, the Bush Justice Department scandal is driven largely by corrupt conservatives who have legal credentials of some sort. And the victims have been Democrats or moderate/honest Republicans. I think it's important for liberals to view this as a matter of right and wrong, not right and left.

* In defense of my DK challengers, most of them I'm sure had not read my blog and had little if any background about my case. Had they known more about the facts of my case, and that the judicial wrongdoers are all Republicans, we might have been more on the same wavelength. But it is interesting that lawyers, no matter where they live, tend to almost reflexively use certain arguments when they feel their turf is being threatened. One tactic is the familiar "You are a layperson, so you can't possibly understand the law" routine. Another is the "It might seem like the judge is wrong, but due to some incredible nuance of the law (that is way over your head), he surely must be right" routine. Another is the "Rule X might read a certain way to you, but the law gives Judge Y discretion to rule however he wants to" gambit.

Here are a couple of specific examples of what the DK legal crowd was throwing at me:

(1) I stated a very simple principal of law: That when one party files a properly supported motion for summary judgment and the other party does not respond and offers no evidence, the movant's evidence is considered uncontroverted and summary judgment must be granted. This scenario happened three times in my case, but Shelby County judges J. Michael Joiner and G. Dan Reeves denied summary judgment, favoring corrupt opposing attorney Bill Swatek (and his family ties to Karl Rove) and causing a case to go to trial when it could not, by law, go to trial. The DK legal squadron pulled out all of the stops in trying to convince me I didn't know what I was talking about. One commenter even suggested that my affidavit, and that of my wife, must have been immaterial to the case, that we had said something like, "We were born on planet Earth." Please. Our affidavits were about matters central to the case, that our troublesome neighbor had indeed trespassed on our property as had been charged. Finally, I cited Alabama case law, Voyager Guar. Ins. Co., Inc. v. Brown, 631 So. 2d 848 (Ala., 1993), which states that when the movant presents a properly supported motion for summary judgment and the nonmovant presents no evidence to counter it, summary judgment must be granted. When I proved that I could cite case law, the DK crowd seemed convinced. One commenter said, "Oh, you mean a 'properly supported' motion for summary judgment. That's the key term.'" I had said it was properly supported all along.

(2) I stated another very simple principal of law: When a party tries to amend his complaint roughly 65 days after the deadline for doing so, and he fails to seek leave of court, the amendment cannot possibly be allowed. This is not complicated stuff, folks. But the DK crowd went into all kinds of contortions to convince me I was clueless. One stated that the request for leave of court was "implicit" when the late amendment was filed. Well, this fellow (I'm assuming it's a fellow) evidently is not familiar with Alabama law. And I suspect the law is the same in all 50 states.

In Alabama, a family-law case styled Malone v. Malone, 854 So. 2d 109 (Ala. Civ. App, 2003) states the matter succinctly:

Rule 15(a), Ala. R. Civ. P., requires that a party desiring to amend a pleading less than 42 days before trial must seek leave of court; it states that leave will be granted "only upon a showing of good cause." The comments to Rule 15 indicate that the rule "REQUIRES A WRITTEN MOTION" seeking such leave and also requires notice to all parties. . . . The wife did not seek leave of the court and did not present any ground upon which the trial court may have allowed such late amendments. Therefore, the wife's purported amendments were never "allowed" and did not serve to inject additional claims.

So a party must file a written motion seeking leave of court; The request is not implicit in the filing of a late amendment. And notice must be given to all parties. If this is not done, the amendment cannot be granted.

This is exactly what happened in my case. Opposing attorney Bill Swatek never filed a written motion seeking leave of court, and notice was not given to all parties. But Bill Swatek has family ties (through his son Dax Swatek) to Karl Rove, so Bill Swatek does not have to follow the law in Alabama.

And this was not a minor procedural matter in my case. The late amendment added a claim of conversion, and that is the (bogus) charge upon which a jury made a finding of $1,525 against me. And that "judgment" was the basis of the unlawful "auction" of our house, which means my wife and I no longer own our own property free and clear. You see the kind of repercussions that can come from being before a corrupt judge.

I didn't have time or space to tell my whole story at Daily Kos. But when I finally got down to citing certain Alabama case law, it seemed to turn the tide of the conversation.

Did I rule the day? Heck, I don't know, and that's really not the point. But lawyers sure can be dogged in defending their profession against a "commoner" who dares to question the integrity of the process. It sure is interesting that some of the lame arguments I've heard from local lawyers turn up when the discussion becomes national (or even international) in scope at DK.

* I'm not through with the issue of judicial corruption and the self-policing nature of the legal profession, which I think fuels much of the sleaze that takes place in our courtrooms. We will deal with these subjects again, both here and at Daily Kos.


Anonymous said...

It's likely Alabama courts are a special breed.

Anonymous said...

yeh there special alright no civil rights in there bloodline

Deb Murphree/Alabama Politics said...

Judicial Reform is one of my specialties. My family has also been through the judicial system of Alabama, spanning throughout all legal procedures in the local and state courts, through the Federal courts. (Namely the 11th circuit saying my husband's case has merit on 4 issues, and granting a Certificate of Appealability. HOWEVER, they stated in the final ruling that my husband had not exhausted all state remedies. This is not true, and we are just waiting for another opportunity to address the courts, if only we could find a lawyer that isn't corrupt. Most that we have experienced, are. There are a very select few attorneys and judges that are NOT in the corruption that is eliminating justice in our courts in Alabama.