|Judge William M. Acker Jr. (right)|
Acker might be 85 years old, but he can contort himself in impressive fashion when he really wants to cheat a litigant who comes before him. I know because I've been one of those litigants.
We recently used the words of a fellow federal judge to prove that Acker committed a monstrous cheat job in a lawsuit over my unlawful termination at the University of Alabama at Birmingham (UAB). Acker granted summary judgment for the University of Alabama Board of Trustees and various individual defendants, even though no discovery had been conducted in the case. We used an opinion from U.S. District Judge Lynwood Smith Jr., to show that cannot lawfully be done.
But that only scratches the surface of Acker's chicanery in my case. His 10-page memorandum opinion, in which he explains his "reasoning" for dismissing my case, reeks of deceit and disingenuous thinking. When Acker isn't engaging in gross distortions of fact and law, he is lobbing insults at me--apparently because I refused to hire an attorney and had the audacity to represent myself. I've read Acker's opinion probably 10 times, and I still discover new jaw-dropping material. Each time, I come away thinking, "This is the work of a diseased mind." (The full opinion can be read at the end of this post.)
How diseased is Acker's mind? Well, the contempt he holds for everyday citizens comes across most clearly in the numerous pot shots he takes at me. We will address those in a future post, but for now, let's examine what passes for "legal scholarship" in a Bill Acker opinion.
My complaint in the UAB case presented a number of problems for Acker. Perhaps the biggest one involved a legal concept called qualified immunity. Individual state employees generally are protected from lawsuit--they are immune--as long as their actions do not violate a "clearly established constitutional right." (See Hope v. Pelzer, 536 U.S. 730, 2002.)
The Eleventh Circuit has held that the determining factor is whether the complaint alleges a violation of a clearly established constitutional right. (See Chesser v. Sparks, 248 F. 3d 1117, 11th Cir., 2001) My complaint alleges that the university terminated me in violation of the First Amendment right to free speech on matters of public concern--specifically the prosecution of former Alabama Governor Don Siegelman.
It's hard to imagine more clearly established constitutional rights than those spelled out in the First Amendment. Since my complaint alleged such a violation, that meant the individual UAB defendants could not lawfully be dismissed from the case. In legal terms, they did not enjoy qualified immunity.
How did Acker get around that, seeing that he clearly wanted to let the UAB defendants off the hook? As our headline states, he pulled "facts" right out of his butt. That's a crass way of putting it, but the description fits here. This is from page 6 of Acker's opinion:
Shuler's allegations, taken as true, do not provide a basis for any of the individual defendants to know that what he or she did, or failed to do, in connection with the termination of Shuler (after determining he had engaged in blogging at work after he had been warned not to do so) constituted a constitutional violation or violations and should have been recognized as such by a similarly situated person holding a supervisory position at an institution of higher learning. This court has looked for, but not found, any constitutional protection for an imagined right to blog on the job.
This might be the biggest load of horse feces ever written by a federal judge. First, the allegations in my complaint are the determining factor, and under "Count One, Violation of First Amendment," I clearly allege that I was terminated for blogging about a matter of public concern. Nowhere do I claim to have a right to "blog on the job," and nowhere does UAB even allege that I was "blogging on the job."
After Acker issued his order, I filed a Motion to Alter or Amend Judgment, outlining Acker's numerous mistakes of fact and law. Such a motion is governed by Rule 59(e) of the Federal Rules of Civil Procedure, and mine can be viewed at the end of this post. In item No. 10 ("Shuler Asserted a Valid First Amendment Claim"), I addressed Acker's contortions on the subject of qualified immunity:
This court dips into bizarre territory when it states that Shuler's "blogging on the job" was not a constitutionally protected act. Why is this bizarre? Because Shuler never claims that "blogging on the job" is a constitutionally protected act. In fact, Shuler claims that he was fired largely because he wrote a blog, on his own time and with his own resources, about matters of public concern--and that is a constitutionally protected act. In no pleadings filed in this case does Shuler claim a right to "blog on the job." He specifically states that he was not blogging on the job and that UAB's own grievance committee found this to be true. Even UAB and its defendants do not claim, in any court document, that Shuler was "blogging on the job." One can only imagine where Judge Acker pulled this notion from.
Actually, I don't have to imagine too hard to figure out where Acker got this notion. He got it from the various political and legal forces who pressured UAB to fire me in the first place. These same forces wanted to ensure that I also got cheated in court.
We already have presented evidence that Acker was influenced by unlawful, ex parte communications in my case--and we've shown that such conduct likely constitutes obstruction of justice and possibly other federal crimes. Acker's references to a supposed "right to blog on the job"--words which are not contained in any document filed by either party in the case--are a clear sign that the judicial process was hopelessly tainted in my case.
This is ugly stuff, but we can find one comedic twist to the whole sordid tale. Acker's own words reveal exactly what he is doing--the judge, in fact, largely unmasks himself.
We are left with this discomforting thought: Bill Acker is a horrible judge, but he might be an even worse criminal. As the Iran-Contra Affair and the Savings and Loan Crisis remind us, Acker has plenty of company from the Reagan era.
(To be continued)