|Judge William M. Acker Jr. (right)|
with Stanford professor Jack Rakove
You have to admire U.S. District Judge William M. Acker Jr.--in a macabre kind of way. From personal experience, I know that judicial corruption is not unusual in the American justice system; in some parts of the country, I would say it's the norm.
But Acker, an 84-year-old Reagan appointee in the Northern District of Alabama, applies an unusual twist to the crooked game: He tells you up front, in open court, that he's going to screw you--and then he does it.
How do I know? He did it to me, in the lawsuit I filed over my unlawful termination at the University of Alabama at Birmingham (UAB). And I have an official court transcript to prove it.
Not content to state publicly that he was going to unlawfully rule against me at every turn, Acker also admitted that he'd had communications with someone connected to the opposing party. That's in the transcript, too.
Don't you just love that kind of brazenness? When you are 84 years old, with a lifetime appointment and pretty much no oversight over what you do, I guess that's how you behave.
A transcript of the hearing in which Acker makes his intentions clear is available at the end of this post. The judge's words are likely to shock any reader with a functioning conscience. But let's compare Acker to some of his brethren on the federal bench--say Mark Fuller, from the Middle District of Alabama, and Henry Wingate, from the Southern District of Mississippi.
If you have followed the story of Bush-era political prosecutions, you will recognize the names of Fuller and Wingate. They presided over the Don Siegelman and Paul Minor cases, respectively. Our research indicates that Fuller and Wingate acted with consistent righteousness in public, while knowingly sending innocent men to federal prison. By comparison, I think I prefer Acker. He makes no pretense about being fair, objective, or obedient to the law. He tells you to your face, "I'm going to screw you over and over, so deal with it and learn to enjoy it." In the "through the looking glass" world of American courts, that kind of brutal honesty is oddly refreshing.
Not that I'm going to bend over and take it. I filed a complaint against Acker with the Judicial Conference of the United States, pursuant to 28 U.S.C., 351-364. That's how I wound up with a copy of the hearing transcript, which I intend to share with the world. Also, the transcript is part of the record in my appeal before the U.S. Eleventh Circuit Court of Appeals in Atlanta.
How did Acker make good on his vow to cheat me? As I reported in a recent post, he granted summary judgment without giving the opposing party (me) an opportunity to conduct discovery. That simply cannot be done--under clear and simple procedural, statutory, and case law. If the law still means anything in the U.S.--and that's a big if--the Eleventh Circuit will have no choice but to overturn on appeal. But Acker's words will remain a glaring example of how badly our judicial train has gone off the tracks.
The hearing in question took place in Acker's court on December 10, 2010. It's clear from the transcript that Acker is going to convert motions to dismiss to motions for summary judgment--and there had been no discovery in the case. And yet, he granted summary judgment on January 28, 2011, without even a discovery meeting having been held between the parties.
Courtroom crookedness doesn't get much more outrageous than that. But it came as no surprise, given Acker's statements in open court on December 10. One issue on that date was a motion to dismiss from the City of Birmingham, which I had named as a party in my complaint. The record shows that the city attached an affidavit to its motion, and the transcript makes clear that Acker did not exclude it. When a defendant attaches "matters outside the pleadings" to a motion to dismiss and the court does not exclude them, the motion must be converted to a motion for summary judgment and handled according to Rule 56 of the Federal Rules of Civil Procedure (FRCP)--and that means discovery must be conducted. This process is outlined in Rule 12(d) FRCP, which ends with this sentence: "All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Law doesn't get much more clear cut than that.
I pointed out the requirements of Rule 12(d) to Acker, but he wasn't going to hear it. The give-and-take on this issue can be read in pages 10-15 of the transcript below. But Acker's dark intentions become clear on page 14:
MR. SHULER: Well, I just want to be on record that --
THE COURT: You have your record.
MR. SHULER: -- it has to be converted, and I think we all here know that.
THE COURT: I suppose with all the work you have done on this and other cases that you know what a petition for a writ of mandamus is. Have you run into one of those yet?
MR SHULER: That shouldn't be needed.
THE COURT: That would be the way to get an immediate review of my disagreement with you. You better look that up. . . .
MR. SHULER: Isn't that a waste of judicial resources when everybody here --
THE COURT: You know, I give pro se parties slack because they are due it. You are about halfway between a pro se party and a represented party. You are still pro se, so I have got to cut you some slack, but I don't have to give you free legal advice, some of which I have already given you. So I think I'm stopping there on that for the question of the City of Birmingham. They are going to be out, one way or the other. . . .
So there you have a federal judge admitting that he's not going to follow the law. But Acker does not stop there. Near the end of the hearing, on page 27 in the transcript, he returns to the issue of a writ of mandamus:
THE COURT: . . . But if you file something before I do it, I will read it, and it will be in the file, and the record will be made. But as of now, we are just making the record for today. And don't forget to look up the mandamus rule. Look that up.
To fully grasp what Acker is doing here, you have to understand the purpose of a writ of mandamus. The filing of a petition for such a writ is governed by Rule 21 of the Federal Rules of Appellate Procedure (FRAP). It is a form of appeal while the case still is in the trial court. That's why it is called an "extraordinary writ"; the process is designed to address close questions of law or fact, not to serve as a pinch hitter for a trial judge who is too crooked to rule correctly on simple procedural issues.
The transcript, read in full, shows there was no legitimate reason for Acker to warn me twice that I would need to learn about the mandamus process. But Acker knew two things about mandamus petitions: (1) They are time consuming; and (2) They are expensive, with an appellate docketing fee of $450 every time you file one.
In so many words, Acker was telling me: "I'm going to screw you on every little detail of this case, and you are going to have to spend months of your time and thousands of your dollars just to make the simplest step forward in your case. I will drain you of your resources simply because I can--and no one can stop me."
Why would a federal judge act in such a flagrantly corrupt and vicious fashion toward a party he does not know? Acker provides the answer on page 28 of the transcript, after I ask him how much time I have to file a reply to an opposing party's motion:
THE COURT: I think I'm going to give you until after Christmas so I can wish you a happy Christmas by giving you the time for Christmas. I know that UAB and the people over there are anxious about this, and I want to accommodate them, too, but I think I'm going to eliminate the anxiety for me between now and Christmas by giving (you) at least that much time.
How could Acker know that UAB is anxious about the case? It could only be because someone connected to the university told him--and this is the kind of prejudicial communication that is strictly prohibited by judicial ethics rules.
How about this? Acker references "the anxiety for me" regarding this issue. Was someone pushing so hard about UAB's anxiety that it was causing anxiety for the judge? I see no way to reach any other conclusion.
And that points to any number of federal crimes, including obstruction of justice.
I already can hear apologists in the legal community claiming there are other explanations for Acker's comments. But the truth is this: Acker told me up front that he was going to cheat me--and it was due to unlawful pressure from someone associated with the opposing party. It's right there in black and white.
I've seen a lot of courtroom shenanigans, but even I was shocked that a judge would be so lazy, arrogant, and stupid to make these statements in open court.
UAB Acker Transcript