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Monday, November 3, 2008

Confronting a Corrupt Republican Judge at Election Time

We posted recently about the race for a seat on the Alabama Court of Civil Appeals between Republican incumbent William Thompson and Democratic challenger Kimberly Drake.

It is unfortunate, we noted, that Drake has not been able to put up a stronger fight because Thompson is demonstrably corrupt. Thompson is bidding for his third term on the five-member court, which is all Republican.

I know Thompson is corrupt because I had a case before him three years ago, and he ruled contrary to law and violated established appellate procedure in the process. And his ruling just happened to favor the opposing attorney (William E. Swatek) who has a son (Dax Swatek) who has worked closely with Bill Canary. And Bill Canary is a close associate of Karl Rove. Hmmm.

The Thompson/Drake race has not received nearly as much attention as the battle between Democrat Deborah Bell Paseur and Republican Greg Shaw for a seat on the Alabama Supreme Court. And that's too bad because if you are a regular citizen in a case that involves a relatively modest amount of money, you almost certainly will go before the Court of Civil Appeals, not the Supreme Court.

In our earlier post about the Thompson/Drake race, I noted that I would e-mail Thompson and ask him to respond to my questions about his handling of my case. I stated that I would post the contents of my e-mail and any reply I received from him.

Well, I e-mailed Thompson on Thursday--and I have yet to receive a reply. Here is my e-mail, and it lays out the unlawful actions Thompson took in my case:

To: wthompson@appellate.state.al.us

From: Roger Shuler

Judge Thompson:

I live in Birmingham and write a blog called Legal Schnauzer. The blog focuses on justice-related issues, and I am particularly interested in your race against Kimberly Drake for a seat on the Alabama Court of Civil Appeals. That's because I had a case before your court, and it was handled in a most curious fashion.

I would like to give you a chance to respond to my concerns. I've already expressed my concerns on Legal Schnauzer, and I will run your response in its entirety.

First, some background: The case was styled Roger Shuler v. Mike McGarity (Appeal from Shelby Circuit Court: CV 00-1248). The appellate docket number was 2040161. The case was assigned to you, and a no-opinion affirmance was issued on June 24. 2005.

Rule 53 of the Alabama Rules of Appellate Procedure states, in pertinent part, that the Court of Civil Appeals may affirm a judgment or order of a trial court without an opinion if the court "after a review of the record and the contentions of the parties, concludes that the judgment or order was entered without an error of law."

Now, I am not a lawyer. But I do have a college education, and I know how to find the Jefferson County Law Library, ask for the appropriate materials, and read simple declarative sentences. Through that process, I've learned that the trial court's handling of the lawsuit filed against me was riddled with errors of law.

And we aren't talking about complicated law here. This is the equivalent of "three strikes and you're out" in baseball.

So I am left to wonder: What in the world were you and your four colleagues on the Court of Civil Appeals thinking when you issued a no-opinion affirmance in my case?

In an article dated October 20, 2008, in The Birmingham News, you noted that the court's cases tend to affect working people and stated: "Win or lose, I want them to leave feeling they got a fair shake. It's an important part of the public's view of the court system."

Well, I didn't leave with that feeling. In fact, I didn't "leave" at all because I never was allowed to enter the court. There was no oral argument in my case--although none should have been necessary to get it right. More alarming, I see no evidence that anyone even read my appellate brief or the record on appeal.

I know I didn't get a fair shake, so I am going straight to the source--you--to find out why.

In The Birmingham News, you stated: "We handle a lot of matters that affect people's lives very personally." I'll agree with you there. Let me tell you what has happened to my wife and me as a result of the lawsuit Mike McGarity filed against me: We've lost our lives' savings; our home has been vandalized repeatedly; I've been assaulted by Mr. McGarity (who has an extensive criminal record); we've had our house unlawfully auctioned by the Shelby County sheriff, and I've been unlawfully terminated from my job at UAB, where I had worked for 19 years.

Those last two actions occurred because I dared to start a blog and tell the public about what actually goes on in Alabama courts. We lost full ownership of our house, and my job, because somebody wanted to hide the truth about "justice" in our state.

A lot of the suffering my wife and I have experienced would have never happened if you and your colleagues had ruled correctly on my appeal. So yes, your rulings do affect people very personally.

By a conservative estimate, I would say that trial-court judges J. Michael Joiner and G. Dan Reeves made at least 25 to 30 unlawful rulings in the lawsuit filed against me. In fact, I'm not sure they made a single ruling that was in accordance with the law. I would have come closer to getting justice in Afghanistan.

So I would like to know: Why did you "affirm" their ugly handiwork? I've read some of your opinions in other cases, and they are quite impressive. I know you have a sharp mind, when you decide to use it. But why would you let a clearly unlawful ruling stand in my case?

This missive is getting long, so I want to focus briefly on two simple issues. If these had been decided correctly, all of the other unlawful rulings in my case never would have happened:

(1) Amending a Complaint--Mike McGarity initially sued me for malicious prosecution and false imprisonment, stemming from a criminal case where he was acquitted of criminal trespass, third degree. McGarity's lawyer, William E. Swatek, dropped the false imprisonment charge, but added a claim for conversion. Swatek, however, did not do this in a lawful manner. The case originally was set for trial on August 20, 2001, and the amendment to McGarity's complaint was filed on Sept. 12, 2001. Rule 15(a) of the Alabama Rules of Civil Procedure (ARCP) requires a party to obtain leave of court to amend a pleading after 42 days before the first trial setting, and Swatek failed to do this, making his amendment untimely by some 65 days. Numerous examples of case law--including Malone v. Malone, 854 So. 2d 109 (Ala., 2003)--state that an untimely amendment, without leave of court, must be disallowed. In my case, McGarity's amendment was so late that I had already filed a timely motion for summary judgment. And the court's ultimate judgment against me in the amount of $1,525 was based on this bogus claim of conversion.

Question: How do you affirm a trial court's decision to allow an amendment that was filed some 65 days late?

(2) Motions for Summary Judgment--I filed three motions for summary judgment (MSJ), each citing distinct issues of fact and law. The case against me had to be dismissed on so many grounds that multiple MSJs were possible. However, only one should have been necessary. Rule 56(c)(2) ARCP requires that any statement of affidavit in opposition to an MSJ must be served at least two days prior to the hearing on the motion. The hearing on my first motion was held on September 19, 2001, but McGarity did not file an affidavit in opposition until September 27, 2001. Let me be clear about this: My MSJs were properly executed and supported with affidavits regarding material facts. That shifted the burden to McGarity to present substantial evidence showing there was a reason to go to trial. His affidavit on the first MSJ was eight days late, so it had to be struck, meaning he presented no countering evidence.

Alabama law on this is clear: "When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing." Voyager Guar. Ins. Co., Inc. v. Brown 631 So. 2d 848 (Ala., 1993).

Despite this clear mandate under Alabama law, the trial court denied my first MSJ. On two subsequent MSJs, McGarity filed no reply at all--no response, no affidavit, no evidence, nothing. Both of those MSJs were denied, too.

Question: How do you affirm a trial court's ruling to deny three properly executed and supported MSJs when the non-moving party presents zero evidence in opposition?

A number of lawyers in Montgomery and Birmingham have told me it is quite common for your court to issue unlawful no-opinion affirmances, essentially sweeping bad trial-court rulings under the rug.

In my situation, the opposing lawyer (Bill Swatek) has a son (Dax Swatek) who has served as a "consultant" for a number of Republican politicians, including at least one member of your court. That raises a question in my mind: Was I cheated because I didn't have the right political connections?

You told The Birmingham News, "I am a person of strong moral convictions. I can make tough decisions." Really? What kind of moral convictions does it take to let a bad trial-court decision slide so that it favors one of your Republican Party comrades? Does it bother you at all that two Alabama citizens have been brought to the edge of financial ruin because of unlawful decisions by state judges--decisions that you allowed to stand?

Do I feel I got a fair shake? Not on your life. But you are more than welcome to try to set me straight.

I await your reply.


Sincerely,


Roger Shuler

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