Monday, March 19, 2012

Roy Moore or Harry Lyon Cannot Make the Alabama Supreme Court Any Worse

Roy Moore

Political observers from both the left and right are aflutter over a Roy Moore v. Harry Lyon showdown for chief justice of the Alabama Supreme Court.

Conventional wisdom holds that, whichever candidate wins the general election in November, our highest court will be irreparably damaged and our state will once again be embarrassed on the national stage. Neither Moore, a Republican, nor Lyon, a Democrat, seems to possess the kind of background or temperament one would expect for a chief justice.

Moore is famed for being forced from the state's high court in 2003 when he refused a federal court order to remove a Ten Commandments monument from the state's judicial building. Moore's political career appeared to be dead, but GOP "values voters" provided new life by giving him a resounding victory over two establishment, pro-corporate candidates in last week's primary. Lyon is famed for . . . well, not much of anything--other than running numerous times for various statewide offices while never coming close to a victory. Harry Lyon is the classic "perennial candidate," one with a colorful biography that includes run-ins with various neighbors and law-enforcement types and several public utterances that might cause one to suspect he's a bit daffy.

Some politicos consider the situation so dire that they reportedly are trying to find an independent candidate to join the fray. Democrats might be looking at ways to replace Lyon on the ballot.

But here is the ugly truth: Alabama appellate courts in general, and the supreme court in particular, already are a joke--and neither Roy Moore nor Harry Lyon is going to make them worse.

Critics have pointed out that both Moore and Lyon have shown a lack of respect for the rule of law. After all, it's undisputed that Moore was willing to ignore a federal court order. And Lyon has been publicly  disciplined three times by the Alabama State Bar. But I would submit that they aren't any worse than the justices who already sit on our highest court.

That last statement is not made for the purposes of snark. It's the cold, uncomfortable truth--and I know it's true, both from reporting on our appellate courts and from my own personal experiences with them.

Let's consider three cases from the past eight years where the GOP-dominated Alabama Supreme Court has overridden fact, precedent, and common sense to favor their corporate benefactors:

* The ExxonMobil Case--A jury found that ExxonMobil had intentionally shortchanged the state for natural-gas royalties and awarded the state more than $3.6 billion in damages. The Alabama Supreme Court overturned most of the award in late 2007.

* The AstraZeneca Case--A jury awarded the state $274 million in a fraud lawsuit against three pharmaceutical companies--AstraZeneca, Novartis, and GlaxoSmithKline. The Alabama Supreme Court ruled that the companies did not defraud the state in pricing Medicaid prescription drugs and overturned the award in 2009.

* The Baptist Health Case--A jury awarded $3.2 million in a wrongful-death case, but the Alabama Supreme Court overturned the verdict in 2011, finding that Baptist Health in Montgomery enjoyed "state immunity" because of its affiliation agreement with the University of Alabama at Birmingham (UAB). State, or sovereign, immunity is a dubious concept to begin with, but our high court stretched it to heretofore unknown boundaries.

As for my personal experience with Alabama's appellate courts, it's been "highlighted" by an appeal in the bogus lawsuit filed against me by our criminally inclined neighbor, Mike McGarity. It's hard to imagine a case that could be easier for a court to decide. I filed a properly executed motion for summary judgment, supported with material evidence (in the form of affidavits), as required by law. That shifted the burden to McGarity, the nonmoving party, to show through his own response and evidence that there was a reason for the case to go to trial.

Harry Lyon
The case had to be dismissed on so many grounds--eight to 10, at least--that I filed three motions for summary judgment (MSJ), each raising distinct issues of fact and law. One MSJ should have been sufficient, but trial judge J. Michael Joiner refused to follow black-letter law and grant summary judgment. On the first MSJ, McGarity filed a response, but he filed no timely evidence as required by law. He did file an affidavit--which did not dispute the fundamental facts and law at hand--but it was 10 days late and had to be stricken as a matter of law. Joiner denied summary judgment anyway.

On the second and third MSJs, McGarity filed no response at all--no affidavit, no evidence, nothing. That meant the evidence I filed, which was different from the evidence in the first MSJ, was uncontroverted. In such circumstances, Alabama law is clear: Summary judgment must be granted and the case dismissed. In fact, the law in all jurisdictions is clear: Such an MSJ simply cannot be denied, and it's a "nondiscretionary" ruling.

Rule 56(e) of the Alabama Rules of Civil Procedure makes it clear. So does Alabama case law:

When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing." Voyager Guar. Ins. Co., Inc. v. Brown 631 So. 2d 848 (Ala., 1993).

Law does not get much more clear than the finding in Voyager. But Joiner could not get it right, and the Alabama Court of Civil Appeals affirmed his ruling with no opinion. I filed a petition for a writ of certiorari, seeking review from the Alabama Supreme Court.

Did the high court have an obligation to act? Yes, it did--and Rule 39 of the Alabama Rules of Appellate Procedure spells it out:

A petition for a writ of certiorari will be granted only when there are special and important reasons for the issuance of the writ. . . . In all civil cases petitions for writs of certiorari will be considered only . . . from decisions in conflict with prior decisions of the Supreme Court of the United States, the Supreme Court of Alabama, the Alabama Court of Criminal Appeals, or the Alabama Court of Civil Appeals.

The Rules of Appellate Procedure state that the Alabama Supreme Court has a duty to correct decisions that conflict with its own prior decisions. And the trial court and the Court of Civil Appeals made findings in McGarity that clearly conflicted with Voyager.

Did the Alabama Supreme Court fulfill its duty to get it right, to make sure that its prior decisions were  respected and upheld? No, it did not. It denied certiorari review in McGarity, meaning an unlawful finding against me remains on the books.

That ruling came with Drayton Nabers serving as chief justice of the Alabama Supreme Court. And it proves that our high court has shown little respect for the rule of law, long before the Roy Moore v. Harry Lyon controversy took flight.

Moore and Lyon might seem, to some, like goofy candidates. But the Alabama Supreme Court already is a joke--and they can't do anything to make it worse.


Redeye said...

"But here is the ugly truth: Alabama appellate courts in general, and the supreme court in particular, already are a joke--and neither Roy Moore nor Harry Lyon is going to make them worse."

Speak the truth and shame the devil LS. Funny how some democrats are "bemoaning" Harry Lyon after the fact.

jeffrey spruill said...

After reading THIS post Mr. Schnauzer, I will reiterate my earlier conclusion: "if you or I defied a court order- the possibility exists we might be dragged beind a truck!"

Anonymous said...

Let's not overlook the possibility of a selective prosecution against one of the candidates. With 8 months until the general election, there is plenty of time to drum up some "serious misconduct" to fuel a political attack. History tells us that unpopular candidates and ideals can serve as a political lightening rod in this state.

The MSM has made a point of ragging on these two candidates since the election.

The investigation cometh.....

legalschnauzer said...


I think you raise a very interesting, and important, point. Since Lyon has almost no hope of winning, it stands to reason that Moore would be the likely target of an investigation. Do you think AG Luther Strange is just the guy to pull such a stunt? He's already going after former Dem guv candidate Ron Sparks. One reason we had such a weak probably is that many qualified candidates are afraid to run for fear of being prosecuted. Such fear might strike deepest with Democrats, but it could also apply to a GOPer who does not toe the corporate line. Moore probably fits that description.

Anonymous said...

I think there is a very real possibility of another political prosecution to remove the threat of a Moore victory.
From a political standpoint, Strange and Moore are at odds in terms of political affiliation, even though both are GOPers.
Strange is affiliated with the pro-business segment of the GOP, while Moore is affiliated with the evangelical faction.
Moore is the dark horse who rode the wave of evangelical support to victory in the GOP primary, a victory which was largely unforeseen by both factions of the GOP. Moore was not "tea party" candidate, nor was he the pro-business candidate. This places Moore's candidacy at odds with both factions of Alabama's GOP.
I hope Mr. Moore has anticipated the possibility of a political attack.

legalschnauzer said...


I agree that Moore would be wise to consider the possibility of a political attack. Luther Strange is the ultimate corporate hatchet man, and he already is going after Ron Sparks for some reason--and who knows what caused Sue Bell Cobb to bail out? When authorities raided State Rep. John Rogers' office a few years ago, Rogers said he wasn't concerned because "I haven't done anything wrong." I remember laughing and thinking, "John, it doesn't matter whether you've done anything wrong or not. Don Siegelman and Richard Scrushy didn't 'do anything wrong' either, and look what they've had to deal with."

James Greek said...

Tell you now I will not be voting for Luther Strange's rich ass come November 2014. He's a certified POS. Also, One good thing about Roy Moore is that, he doesn't kiss the asses of Karl Rove and the BCA.

Anonymous said...

Unfortunately, having done nothing "wrong" does not preclude one from becoming the target of a politically motivated prosecution. Only the very naive and/or uninitiated fail to recognize the absolute power of a government driven prosecution.

Robby Scott Hill said...

I told Keith Norman, Tony McClain & Robbie Lusk that they were spinning their wheels trying to keep me out of the bar exam & that their failure to go after real offenders was going to come back to bite them in the ass. Well good luck gentlemen! You have no one to blame but yourselves. Either one of these candidates will be a lame duck Chief Justice with a score to settle with the staff of the State Bar. I hope Keith & Tony are vested for retirement and their retirement accounts are fully funded. Young Robbie Lusk might have to ask me for tax advice before this shit is over and that would be the ultimate expression of the tables being turned.

David said...

Since Moore was removed as Chieh Justice for misconduction is there ny in the Alabama Constiution or Cde that would preclude him from holding that office again?

legalschnauzer said...

Sounds like a good question for our friend Robby Scott Hill.

Robby Scott Hill said...

David: The Court of the Judiciary actually did Roy Moore a favor. Moore's removal from office by the Court of Judiciary, effectively prevented the State Legislature from impeaching him and referring the case to the AL Attorney General's Office where he could have been convicted of a felony which would have resulted in Moore automatically losing his license to practice law. There's a daisy chain of pathways within State Bar & AL Republican Party rules that would have prevented Moore from temporarily or permanently running for judicial office again, but they were never employed against him. Associate Justice Tom Parker seems to be the expert on all these possible outcomes because he uses them to get rid of his own competition on the ballot. Roy Moore will turn 70 in a few years and will be unable to run for a judicial office again. This was his last election as a judge.

legalschnauzer said...

Good stuff, Rob. Thanks for your insight.

princeliberty said...

Moore would have charged with a felony?! What on earth you talking about? What criminal statute are you talking about?

NOBODY was even talking about impeaching Roy Moore at any point.