The Real Problem With Alabama's Appellate Courts

J. Mark White, president-elect of the Alabama State Bar, probably meant well with his recent op-ed piece in The Birmingham News.

But White missed the mark with his diagnosis of what ails Alabama's appellate courts.

White expresses concern that Alabama appellate courts have all but done away with the practice of oral argument. He notes that the Alabama Supreme Court, over the past six years, has averaged 2,100 cases per term--granting oral argument in an average of 25 cases per year. The figures for the Alabama Court of Civil Appeals are even worse. It granted oral argument in only 12 cases over the entire six years; in two consecutive years, the court granted no oral arguments at all.

These figures are alarming, and they suggest that judges on Alabama's appellate courts are neglecting an important part of their duty. But White fails to point out an even more important area where the justices are failing.

It is becoming increasingly common for Alabama appellate courts to produce "no-opinion affirmances." These are documents where the appellate court affirms the trial-court ruling and gives no opinion. In other words, the party who filed the appeal sees it denied with no explanation offered.

Under the Alabama Rules of Appellate Procedure, no-opinion affirmances are supposed to be issued only when the trial court clearly was correct in its finding and the case presents no issues of first impression for the appellate court.

But I've had multiple experiences where an Alabama appellate court has upheld a trial court that clearly was incorrect in its finding. In cases such as those, the appellate court essentially is sweeping wrongdoing under the rug. In my experiences, both the trial court and the appellate court were dominated by Republican "jurists," indicating that partisan politics played a major role in the no-opinion affirmances.

I'm hardly alone in having this experience. Ray Vaughan, an attorney in Montgomery who ran for a seat on the Alabama Court of Civil Appeals in 2006, says numerous attorneys have told him of having clearly unlawful trial-court rulings upheld by no-opinion affirmances. At the heart of Vaughan's platform was a plan to do away with the rule that allows no-opinion affirmances. But Vaughan, a Democrat, lost in his bid for a seat on the civil-appeals court. The court remains an all-Republican body, and the practice of issuing unlawful no-opinion affirmances continues.

White's op-ed piece is elitist in tone. Even on a court that is doing its job, I suspect oral argument is granted only in cases that involve corporate entities or wealthy individuals. When regular citizens are parties, my guess is that oral argument is rarely granted.

My experience indicates that oral argument is not necessary in many "run-of-the-mill" legal cases. In my case, for example, oral argument certainly wasn't necessary. The briefs clearly showed that the trial court had ruled contrary to law on multiple occasions. And the other party did not even file an opposing brief. Don't know how much easier it can get for an appellate court, but Alabama's appellate courts still could not get it right.

White seems to be captivated by the "romance" oral arguments offer for lawyers. But what about parties of limited incomes who have to pay for lawyers to make oral arguments? With many lawyers charging $300 to $500 an hour for their services, you can only imagine how much it would cost a middle-income party to have a lawyer travel to Montgomery to present oral argument.

White, like many lawyers I've encountered, seems more concerned with his profession and other lawyers than he does with the needs of citizens.

Citizens simply need honest appellate courts who are required to write an opinion explaining why they ruled a certain way. And we certainly do not have that right now in Alabama.

Here's a key point: The practice of issuing no-opinion affirmances is not just a matter of judges being "unethical" or parties being "inconvenienced" or "wronged." The practice of upholding clearly unlawful trial-court findings is criminal--and the parties who suffer from it are the victims of a crime.

The crime is called honest-services mail fraud, the same charge that was at the heart of the prosecutions against Don Siegelman in Alabama and Paul Minor in Mississippi. Siegelman and Minor, of course, are both Democrats--and the trial records in both cases indicate they did not commit honest-services mail fraud at all. Meanwhile, Republicans on Alabama's appellate courts routinely commit honest-services mail fraud, and they get away with it.

That's the ugly truth that J. Mark White refused to address in his op-ed piece.