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Thursday, August 18, 2016

How bad is Obama judicial nominee Abdul Kallon? 11th Cir. ignored 3 SCOTUS cases to help him cheat my wife out of rights to home she co-owned for 20 years


U.S. Eleventh Circuit Court of Appeals in Atlanta
Republicans stalling on President Obama's nomination of Merrick Garland to the U.S. Supreme Court are committing a grave injustice. That's because, by pretty much all published accounts, Garland is qualified to sit on the nation's highest court.

If Republicans also are stalling on Obama's nomination of Abdul Kallon to the U.S. Eleventh Circuit Court of Appeals -- and that appears to be the case -- they are doing us a favor. That's because Kallon is a dreadful judge, and I've seen his sorry act with mine own eyes multiple times.

Why is Kallon so bad? Well, let's consider the following question that many Americans surely have asked themselves: Why is it so frustrating to deal with judges and courts? Answer: Even when you are right about a key issue, and the court admits you are right, judges still find a way to make it look like you are wrong--and to deny you justice. Abdul Kallon taught me that one.

My wife, Carol, and I experienced a classic example of this phenomenon in Roger Shuler and Carol Shuler v. William E. Swatek, et al, a case that involved an unlawful sheriff's sale that cheated us out of full rights to property we had owned for more than 20 years at the time.

We've shown that  Kallon, who currently sits on the federal bench in the Northern District of Alabama, botched his ruling on a simple issue involving Carol's rights to her own home. Given that Obama has nominated Kallon to a seat on the U.S. Eleventh Circuit Court of Appeals, this should concern every American. It certainly should concern the some 33 million people who live in Alabama, Georgia, and Florida--the three states covered by the Eleventh Circuit.

Kallon found that he could not consider Carol's claims because he lacked subject-matter jurisdiction under the Rooker-Feldman Doctrine. We argued, in a Motion to Alter or Amend Judgment and in our appellate brief, that Carol was not a party to the underlying state case, so Rooker-Feldman did not apply to her. In other words, Kallon was wrong, and he had to hear her claims. (Note: For purposes of this post, we will assume Kallon correctly excluded my claims because of Rooker-Feldman. That's not the case, but by focusing only on Carol's claims, we hope to simplify matters and make this post easier to understand. I was, at least, a party to the underlying state action, but Carol was not.)

What happened next was astounding. The Eleventh Circuit found that we were right, and Kallon was wrong -- that Carol's claims were not precluded by Rooker-Feldman and had to be heard by the district court. But the Eleventh Circuit cheated Carol anyway, by borrowing a point Kallon had ruled on (incorrectly) and applying it to Carol's claims -- even though her claims had not been heard in the district court, as the appellate court found they must.

That probably sounds like a mind-twister to many readers, but it's a classic example of how convoluted court corruption can be. Let's see if I can provide a little clarity: The Eleventh Circuit essentially found that Carol had wrongly been deprived of a hearing on her claims in the trial court, but then threw out her claims on grounds that the trial court had not heard--it could not have adequately heard those grounds, of course, because it had not heard Carol's claims at all.

Here is a fundamental holding of law: An appellate court is supposed to rule only on issues adequately heard and raised in the trial court. But that's not what happened in Shuler, et al v. Swatek, et al. It's a sign, in my view, that the Eleventh Circuit was more interested in protecting Kallon than it was in dispensing justice. The law required, as the Eleventh Circuit admitted, that Carol's claims be heard by the trial court. But they never were.

On what did the Eleventh Circuit hang its flimsy ruling? It found that Carol's claims against our troublesome neighbor (the criminally inclined Mike McGarity) and his sleazy lawyer, Bill Swatek, must fail because McGarity and Swatek were not "state actors" for purposes of a civil-rights claim under 42 U.S.C. 1983. Specifically, here is what the appellate panel found:

Finally, Carol Shuler contends that the district court erred in dismissing her claims under 42 U.S.C. §§ 1983, 1985 against William Swatek and Mike McGarity for failure to state a claim. Section 1983 provides a right of action only against "a person acting under color of state law." Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005). Although neither Swatek nor McGarity are state officials, Carol Shuler argues that they can be held liable under § 1983 because they obtained a writ of execution against the Shulers' property and caused the writ to be enforced. However, this contention is insufficient to state a violation of § 1983, because "one who has obtained a state court order or judgment is not engaged in state action merely because [he] used the state court legal process." Cobb v. Ga. Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985).

Where did the Eleventh Circuit judges come up with Cobb v. Ga. Power Co. and one of its findings? They borrowed it from Kallon; it's right there on page 31 of his memorandum opinion in our case.

Abdul Kallon
There's a slight problem with borrowing material from Kallon -- he's likely to get it wrong, and that's exactly what he did in this instance. Most of us learn this lesson in third grade -- if you are going to copy off someone's paper, copy from one of the smart kids, not one of the dummies. The Eleventh Circuit copied from a bad judge and -- surprise, surprise -- they got it wrong.

What's the correct law? We cited it in our appellate brief. (See full appellate brief at the end of this post.)

The district court found that Swatek and McGarity were protected from the Shulers‟ 1983 claims because they were not acting under color of state law. The U.S. Supreme Court, however, has held that private individuals who act jointly with state officials are deemed to be acting under color of state law. In Lugar v. Edmondson, 457 U.S. 922 (1982), our nation’s highest court found: “As is clear from the discussion in Part II, we have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor‟ for purposes of the Fourteenth Amendment. The rule in these cases is the same as that articulated in Adickes v. S.H. Kress and Co., supra, at 152, in the context of an equal protection deprivation: "Private persons, jointly engaged with state officials in the prohibited action, are acting "under color‟ of law for purposes of the statute. To act "under color‟ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents," quoting United States v. Price, 383 U.S., at 794.

How badly did the Eleventh Circuit, likely in conjunction with Kallon, want to make sure Carol's claims were not heard. As you can see above, the appellate court was willing to ignore clear findings from three U.S. Supreme Court cases. That tells me the fix was firmly locked in place.

Is there much a citizen can do in such situations? Not really. The only realistic option is to file a Petition for an En Banc hearing, which we did. (See petition at the end of this post.) Those, however, are rarely granted, and ours was denied.

The only other option is to seek review from the U.S. Supreme Court. For most citizens, the chances of getting hit by a piece of space debris probably is greater than the chance of having a case heard by SCOTUS.. On top of that, the expense of seeking Supreme Court review is prohibitive for many regular folks.

And so, Abdul Kallon (with help from the Eleventh Circuit) made sure that my wife had no chance at justice. This is the kind of judge Barack Obama wants to promote?

If you are a Democrat, that notion should make you want to vomit.







12 comments:

Anonymous said...

I get the distinct impression you don't much care for Judge Kallon.

legalschnauzer said...

I think I have particular disgust for Kallon because he was appointed by a president that I voted for, twice. Being cheated by a Bush appointee . . . well, that's to be expected. But to be cheated by an Obama appointee is infuriating.

Anonymous said...

The Obama admin made the mistake of seeking input from Artur Davis, and he gave us Kallon. Of course, we all know now that Davis has the political acumen of a manhole cover. Little wonder that Kallon sucks on the bench.

Anonymous said...

I know a little bit about the law in this area, and you are right, both Kallon and 11th Circuit got it wrong. That Mrs. Shuler was not a party to the underlying state case means her claims were not subject to Rooker-Feldman restrictions. And private individuals, consorting with state actors, become state actors themselves. It's not complicated stuff.

For sure, Mrs. Shuler was entitled to discovery on the issue of Swatek and the neighbor working in conjunction with state officials. You can pretty much bet that Swatek was working with the sheriff, so Mrs. Shuler's claim had to move forward.

Sorry for your experience on this. As a lawyer who tries to play by the rules, this kind of stuff makes me ill -- and it happens way too much.

Anonymous said...

They ruled contrary to three U.S. Supreme Court cases? Are you sure about that? If so, how do they get away with?

legalschnauzer said...

Yes, @5:36, I'm sure about that. I provided links to the three cases, and I invite you to clik on links and see what the opinions say.

How do they get away with it? They use "Do Not Publish" opinions. That's what they used in this case. That way, bogus rulings don't get into the official record and muck up the case law.

It's one of the worst scandals in the country, and hardly anyone knows that it happens.

e.a.f. said...

The U.S.A. has created one of the best legal systems in the world and produced some of the greatest legal minds in the world. So what went wrong? Politics and money. If Judges aren't elected in the U.S.A. they are appointed by politicians. As the U.S.A. grew and politics became more of a money game, the quality of judges deteriorated. Simply being "vetted" by a group of politicians as is done for a Supreme Court Justice is simply not enough.

When the judicial system was established the decision to appoint for life was a good one. People didn't live that long and it avoided judges being threatened with removal if they upset some wealthy political type's apple cart.

In Canada we retire Judges and Senators at age 75. (we appoint senators) If the U.S.A. retired judges at age 75, they would be able to remove, at some point the bad ones and the ones stuck in the days of gone by. In Canada even a Supreme Court Justice can be removed from their position, with a lot of cause.

The next problem is it is almost impossible to remove a judge who was been appointed. If it were easier to do so, it might be an improvement. We do it in Canada. It very seldom happens, but it can be done. Judges learn, if they want the job, they do the job.

it was rather amazing to see how involved American Supreme Court judges are with politicians, etc. How can they effectively do their jobs if they "mix" with those who they must judge.

Up until 1993 Supreme Courts Justices in Canada were not permitted to vote, so they could remain to be seen to be impartial. That of course has changed, but it is an indication how seriously being a judge has been taken.

of course when Stephen Harper, Canada's version of a "teabagger" was elected he set out to appoint judges to lower courts who were more in keeping with his views. he of course has been replaced by Justin Trudeau.

Judges and politics need to be kept very separate.

Anonymous said...

I looked up Abdul Karim Kallon, and his history is odd-meaning there's not much to find. On paper, he looks very impressive:
Partner
Bradley Arant Boult Cummings LLP (They're close to the AG, aren't they?)

Educated at Dartmouth College with an Undergraduate at University of Pennsylvania Law School

I understand that he's originally from Sierra Leone, but he's in his late forties, why is there so little info available about this fellow? At the very least, he's been here since his late teens or early twenties when he attended the Univ of PA, right? Twenty plus years of dead air? Maybe i'm missing something?

legalschnauzer said...

Great points, e.a.f. In US, the judicial process seems to be more political all the time. Bill Pryor, for example, is the ultimate political judge. He had never held a judicial position in his life, not even in traffic court. But he did Karl Rove's dirty work -- because Rove could hold Pryor's gay-porn past over him -- and got rewarded with lifetime appt. to bench. Now, Trump talks of putting him on Supreme Court. I've heard he was a mediocre lawyer, at best, but he kissed the right asses (literally, would be my guess), so he rose up the latter.

legalschnauzer said...

Yes, @8:07, the Kallon legal background is thin, very thin. Best I can tell, he was a mediocre lawyer at BABC, mostly defending employers who discriminate and harass employees. Hell of a role for a guy from Sierra Leone, isn't it?

Anonymous said...

Perhaps he's DEEP undercover or in witness protection...

Anonymous said...

@8:43pm -- ROTFLMAO!
LS: FYI -- You know that Shelby and Sessions don't support his nomination and they're more than happy to let the clock wind down on his nomination. Good job on your part to continue continually reminding all the lurkers here what a bad choice Kallon is. http://www.montgomeryadvertiser.com/story/news/2016/02/11/obama-appoints-judge-abdul-kallon-11th-circuit/80253358/