|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)