Thursday, June 27, 2013

Shelby Co. Resurrects The Ghost Of George Wallace In An Effort To Overturn The U.S. Voting Rights Act

George Wallace
The petition that led to Tuesday's U.S. Supreme Court decision to strike down a key section of the Voting Rights Act (VRA) makes ample use of racially charged language--and in the process, it invokes the memory of former Alabama Governor George Wallace.

Analysis of Shelby County v. Holder has focused largely on a 5-4 holding overturning the Section 4 formula that determines jurisdictions to be governed by VRA, and thus causes the preclearance provisions of Section 5 to go dormant--at least until Congress arrives at a new formula.

Mostly overlooked is Shelby County's frequent use of racially charged language in its petition for certiorari review to the Supreme Court. The petition references "state sovereignty" and similar phases--and those are slightly more polite terms for "states' rights."

States' rights, of course, was the mantra that George Wallace used to wage war against federal intervention in the segregationist South of the 1960s. It also was a central part of Ronald Reagan's speech at Philadelphia, Mississippi, to kick off his presidential campaign in the general election of 1980.

Wallace and Reagan were not stupid. They knew that "states' rights" was code language that told white voters, "Don't worry about the rising tide of civil rights for black people. We will look out for your interests. We will protect you."

As we fast forward to today, this week's decision already has had an impact on a pending Voting Rights Act lawsuit brought by residents of Macon County, Alabama, against Attorney General Luther Strange and Governor Robert Bentley. The case grew from raids and closure of the electronic-bingo facility at the VictoryLand casino near Shorter. Tuskegee Mayor Johnny Ford and other plaintiffs contend the raids unlawfully usurped the authority of the Macon County sheriff and heaped "economic devastation" on their county. 

Donald LaRoche, a Massachusetts-based attorney representing the residents, said the Shelby County decision makes his job more difficult. "This decision is only going to enable the Luther Stranges of the nation to hide their racist schemes better," LaRoche said. "We still have a valid section 2 claim, and now it's going to take a little longer to prove."

Back to the two words--"states' rights"--that have done more than any others to turn the Deep South into a solid sea of red for the Republican Party on national-election days. Those words fueled white fears and knee-jerk voting, leading to the kind of extremism that makes Congress dysfunctional and our country almost ungovernable.

Should citizens be alarmed that Shelby County, Alabama, borrows tactics from George Wallace to help break down federal protections for minority voters? Is this burgeoning, overwhelmingly Republican area south of Birmingham the kind of place that needs to be helping to set a national agenda? Does Shelby County, with a justice infrastructure that is demonstrably corrupt, have any business messing with federal issues--especially when its own courthouse, county commission, and sheriff's office are riddled with sleaze?

The answers to those questions are "yes," "no," and "hell, no."

What are some of the code words in the certiorari petition for Shelby County v. Holder? Consider this language:

Placing a jurisdiction in federal receivership raises fundamental questions of state sovereignty; and doing so selectively, absent compelling justification, unconstitutionally departs from the “historic tradition that all the States enjoy ‘equal sovereignty.’”

And consider this:

These federalism concerns are not academic. The preclearance regime has an outsized effect on the basic operation of state and local government.

That is right from the George Wallace playbook, when he declared in 1967 that the people of Alabama "have the right to decide some questions for themselves." (See video at the end of this post.) 

What about Ronald Reagan's words in 1980 at the Neshoba (MS) County Fair, which was chosen to host the speech as the perfect place for winning "the George Wallace-inclined voters"? Here is a key section from a transcript of the speech:

I believe in state's rights; I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we've distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment. And if I do get the job I'm looking for, I'm going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there.

I'm not the first to note the states' rights argument at the core of Shelby County v. Holder.  Stephen Menendian, assistant director at the University of California's Haas Institute for a Fair and Inclusive Society, noted it in an article titled "Shelby County v. Holder: What's States' Right Got To Do With It?" From Menendian's piece:

Indeed, what is so puzzling about this notion of salience of the states’ rights discourse in this case is how concerns rooted in state sovereignty fly in the face of the obvious purposes of the Reconstruction Amendments. The Reconstruction Amendments were specifically passed to abrogate states’ rights and constrain state behavior after long experience in which black Americans were systematically subjugated by those states. Moreover, even if Tenth Amendment federalism concerns were constitutionally relevant, they would be superseded in this case by the Fourteenth Amendment, which was passed later in time. 
Shelby County v. Holder not only brings into focus the issue of the proper scope of Congressional power under the Fourteenth Amendment, it also seeks to examine how to balance that authority against states’ rights. Given the language, text and history of the Fourteenth Amendment, the issue of states’ rights in this context is irrelevant. Unfortunately, this Court seems to believe otherwise.

Menendian obviously saw Tuesday's ruling coming. And he is absolutely right that places like Shelby County, Alabama--with the help of the U.S. Supreme Court--are chipping away at protections of the Fourteenth Amendment.

Shelby County v. Holder, in essence, turns us back toward a time when George Wallace held sway on the national stage. That should send a chill down the spine of all thinking Americans.

Wednesday, June 26, 2013

Voting Rights Act 2013: What Is Daily Life Really Like In The Place That Spawned Shelby County v. Holder?

Shelby County, Alabama
The legal and political worlds have been abuzz over the past 24 hours about the U.S. Supreme Court's decision yesterday to overturn a key section of the Voting Rights Act in a case styled Shelby County v. Holder.

Implied in the ruling is the assertion that Shelby County, Alabama--and places like it--are more enlightened now than they were when the Voting Rights Act was passed almost 50 years ago. So that raises these questions: What kind of place is Shelby County, Alabama, in 2013? And in terms of justice issues (such as voting), should the public be confident the rule of law will prevail in this burgeoning area south of Birmingham?

As a resident of Shelby County since 1989, I feel qualified to take a crack at those questions. What are my answers? Well, Shelby County is a prosperous, pretty place that features lots of gorgeous trees, mountains, and bodies of water--I can throw a rock from my backyard and almost hit the natural splendor of Oak Mountain State Park. The county, especially in the northern section closest to Birmingham, features numerous fine places to shop and dine, with some of the most attractive neighborhoods you will find anywhere.

But what about those pesky justice issues? In that regard, Shelby County is a cesspool. The county seat is in a little hellhole called Columbiana, and when you take one step into the city limits, it's as if you've entered a time warp and gone back to . . . oh, about 1912.

Experience has taught me that almost all of Shelby County's "justice infrastructure"--the courts, the sheriff's office, the county commission--is hopelessly corrupt. Have things improved here on the racial front since 1965? I have little doubt that the answer is yes. But can citizens of any color--especially those who somehow are seen as different, or outside the suburban, conservative mainstream--expect to have their legal rights protected? The answer is a resounding no. 

I know that with certainty because of first-hand experience, which I have written about extensively on this blog. I also know from reporting on the legal nightmares of others who have been railroaded in the Shelby County "justice system."

Before I provide details about what I have witnessed in Shelby County, let's consider the words of journalist Greg Palast about yesterday's SCOTUS decision. In a piece at Truthout titled "Ku Klux Kourt Kills King's Dream . . . ," Palast writes:

The problem is not that the court majority is racist. They're worse: they're Republicans. 
We've had Republicans, like the great Earl Warren, who put on the robes and take off their party buttons. 
But this crew, beginning with Bush v. Gore, is viciously partisan. They note that "minority candidates hold office at unprecedented levels." And the Republican Supremes mean to put an end to that. . . . 
And when they say "minority," they mean "Democrat." 
Because that's the difference between 1965 and today. When the law was first enacted - based on the personal pleas of Martin Luther King - African-Americans were blocked by politicians who did not like the color of their skin. 
But today, it's the color of minority voters' ballots - overwhelmingly Democratic blue - which is the issue.

Palast's words resonate with me, and here is why: As a white male, I fit the primary racial mold in Shelby County. But as a liberal Democrat, married to a liberal Democrat, I am very much a political outsider. And in fighting various court battles for 12-plus years, I've learned that my status as a political outsider means my constitutional rights to due process and equal protection are subject to being trampled.

Sherry Carroll Rollins, a central figure in the Rollins v. Rollins divorce case, has learned a similar lesson. Her case was decided in Shelby County--even though jurisdiction was established in Greenville, South Carolina, the case was litigated there for three years, and it could not lawfully be moved--and has been the subject of dozens of posts here at Legal Schnauzer.

The victims of former Shelby County teacher Daniel Acker Jr. also suffered because of a dysfunctional justice system. Acker, the son of a long-time Shelby County Commission member, faced allegations of sexual abuse in 1992. But with a number of community groups coming to his support (especially from churches), a grand jury failed to indict him and he kept his job. Some 20 years later, Acker confessed to molesting more than 20 girls during his teaching career, and he now is serving a 17-year prison sentence.

What about my wife and me? Let's consider just one event from our experience. We've had the full ownership rights to our house stolen by a corrupt cabal of lawyer William E. Swatek, Sheriff Chris Curry, and Circuit Judge Hub Harrington. I outlined the key issues in a post titled "Going On The Attack Against The Thugs Who Stole Our House."

What was the fallout? We still live in our house, but a portion of the rights were auctioned off on the steps of the Shelby County Courthouse in May 2008, and Bill Swatek currently holds a sheriff's deed on our property--even though more than a half dozen provisions of black-letter law say that can't happen.

I explained all of this in a post that was written just hours after the auction took place. You can check it out here.

For posterity's sake, we captured the auction itself in living color. And it makes for particularly interesting viewing, in light of yesterday's SCOTUS decision that found--in so many words--that all is sweetness and light in Shelby County, Alabama.

My wife and I know that is a load of horse feces. We invite you to click on the video below and see for yourself.

(To make matters particularly surreal, the sheriff's deputy in the video below is named Bubba Caudill. I didn't make that up, and he's not a character from central casting for a Smokey and the Bandit movie. It's his real name, and he's a real deputy in Shelby County, Alabama, the place that spawned yesterday's ruling in Shelby County v. Holder.)

Tuesday, June 25, 2013

Federal Law Clerk Says, "This Conversation Is Over" When Confronted With Evidence of Glaring Conflict

How does the clerk for a federal judge respond when he's confronted with glaring evidence about a conflict of interest? Does he thank the citizen who pointed out the conflict and pledge that he will take steps to rectify the situation, ensuring that justice is done and the law is followed? Does he close the conversation by saying, "Thank you, come again"?

Not exactly.

If the clerk in question is Michael David ("David") Waters Jr., who works for U.S. magistrate T. Michael Putnam in the Northern District of Alabama, he says, "This conversation is over" and hangs up on the citizen . . . twice. (View video at the end of this post.)

That's the response I got recently when I confronted Waters with evidence that he and Putnam had a clear conflict of interest in a case styled Carol Shuler v. Infinity Property & Casualty et al (2:11-cv-03443-TMP). That's the case where my wife--we know her here as Mrs. Schnauzer--is suing her former employer for discrimination, wrongful termination, and other torts.

So far, Putnam has overseen the case, but Mrs. S has filed a document stating that she does not consent to his jurisdiction as a magistrate. That means the case will have to be assigned to a district judge, although that has not happened yet.

Why would my wife have concerns about Putnam's office handling her case? Reason No. 1 involves Putnam's clerk, David Waters Jr. Young Mr. Waters, a 2010 graduate of the University of Alabama law school, happens to be the son of Michael David Waters Sr., a partner in the Birmingham office of the national Jones Walker law firm. Kary Bryant Wolfe, one of Waters Sr.'s associates at Jones Walker, is representing Birmingham debt-collection attorney Angie Ingram, one of the primary defendants in my wife's case.

Under 28 U.S. Code 455, a federal judge or magistrate must disqualify himself "in any proceeding where his impartiality might reasonably be questioned." Could Putnam's impartiality "reasonably be questioned" in my wife's lawsuit? Perhaps a better question: How could it not be?

Putnam's clerk is the son of a partner at a law firm that represents a key defendant in the case. As we noted in a recent post, the term "law clerk" might sound like it applies to someone who fetches coffee and does filing. But in reality, law clerks often write orders and opinions for federal judges; one of the legal professions' dirty secrets is that many judges don't do their own work, handing it over for clerks to write.

Is it possible that Michael David Waters Jr. is writing orders and opinions in my wife's lawsuit that benefit a client of his father's law firm? It sure as heck is. Even if that isn't happening, the possibility that it could be, requires Putnam's recusal--and he has not stepped down after presiding over the case for about 20 months.

When I contacted Waters Jr. by phone recently and confronted him with evidence of a conflict that clearly violates federal law, he was none too pleased. You can hear the exchange in the video below.

He admits that his father works at Jones Walker, which represents a defendant in the case, but he says there is no conflict and he had nothing to do with orders in the case. All of that, of course, is irrelevant under the law. As I try to explain that to Waters, and note that the conflict never was disclosed to my wife, he says, "This conversation is over" and hangs up. 


(To be continued)

Previously in the series:

Judge Michael Putnam and Jones Walker Law Firm Try To Keep A Conflict Of Interest Under Wraps (June 18, 2013)

Monday, June 24, 2013

Rollins Family's Mega Bucks Buy Southern Clout That Can Make A Proposed Highway Change Course

Rollins Ranch Cartersville
Anyone who doubts that one of the South's wealthiest families could manipulate the Rollins v. Rollins divorce case in Shelby County, Alabama, should consider recent transportation news out of Georgia.

The Rollins clan, from its twin bases in Atlanta and Delaware, has made billions from Orkin Pest Control, Dover Downs Gaming and Entertainment, Rollins Jamaica Ltd, and associated enterprises. For roughly three decades, the family has been fighting the proposed route for a highway between Atlanta and Rome, Georgia. Based on recent news reports, it looks like Rollins clout will seize the day.

That means this family has enough clout to make a highway change its course. Is there any doubt that the family is capable of manipulating a court case so that Ted Rollins could launch a monstrous cheat job on his ex wife, Birmingham resident Sherry Carroll Rollins, and their two daughters, Sarah and Emma. Probably with the help of his Alabama-based corporate law firm, Bradley Arant, Ted Rollins somehow managed to receive an unlawful divorce judgment that has left Ms. Rollins and the couple's daughters on and off food stamps for several years.  

Officials with the Georgia Department of Transportation (GDOT) know what it's like to get into a battle of legal hardball with the Rollins family. DOT officials have said for years that the best route for the U.S. 411 connector would pass through the Rollins family's 1,800-acre ranch near Cartersville, Georgia. From a 2010 news report on the controversy:

At issue is a struggle between a family with deep pockets and philanthropic ties to the community — Emory University’s Rollins School of Public Health honors the family’s contributions — and a state agency with the power to condemn even wealthy citizens’ land if it serves a public purpose. 
Georgia Department of Transportation officials say they have chosen the right route for the project after thorough financial, traffic and environmental studies involving extensive public input. 
“I believe that’s the most engineered, studied piece of land in the state of Georgia,” said David Doss, who represents Rome and Cartersville on the State Transportation Board. “The process has been followed to the letter of the law.”

But a new report, dated June 14, 2013, says the Rollins family likely will get the highway route that it prefers, one that bypasses its property:

The Rollins family did just about everything it could do to block a new road linking Interstate 75 to Rome and running just south of the family's vacation home and prized fishing lake. 
And on Thursday the effort by the prominent Georgia clan -- which was joined by environmentalists and other nearby residents -- appeared to pay off. Gov. Nathan Deal told Rome lawmakers that building the road through Rollins' land would be tremendously costly and that the state will explore alternatives. 
He also vented at the Rollins' monumental efforts, which he said were "employed to delay and ultimately divert the course of the project." 
The final decision is up to the Georgia Department of Transportation, which said it is still evaluating options. But Deal's comments mean the direct route to I-75 that Rome and its 100,000 residents have long sought is mired in deeper uncertainty.

The bottom line? The general public probably will have to travel an indirect route so that the Rollins family can get its way. From the recent report:

The land would probably already have a road running through it if it were owned by anybody else. But the Rollins clan, which controls a multibillion-dollar pest control business that includes Orkin, has waged one of the most aggressive road-blocking campaigns in state history. 
The family hired lawyers, strategists, engineers and scientists who lobbied to prevent highway construction on the land. Biologists contended it would endanger rare birds and wildlife. Engineers harped on potential design flaws. Attorneys persuaded officials to turn a chunk of the property into a state-recognized wilderness. And preservationists convinced the federal government to declare a nearby mine as a historic landscape called Dobbins Mountain Mining Landscape. 
The latter was a key development. Deal's letter came after the Federal Highway Administration concluded that any road built near the abandoned manganese mine, which dates to the 1860s, would have an "adverse effect" on the site and urged engineers to show whether there's a better alternative.

Published reports indicate the Rollins family leans heavily Republican, with little interest in environmental or preservation issues. But it probably will take advantage of an abandoned manganese mine to win a 30-year battle over a highway project. Along the way, attorneys for the Rollins clan helped get an area planned for the GDOT route declared a wildlife refuge.

It's enough to make you think these folks are left-wing enviros. But that hardly is the case. One of their many business interests, via a company called RPC Inc. (formerly Rollins Energy Services), is hydraulic fracturing, better known as "fracking." In fact, RPC was among several energy firms, including Halliburton Co., that apparently violated U.S. law by using fracking fluids that included diesel fuel without a permit. From a 2011 Fox News report:

The largest users of fluid containing diesel fuel cited by the lawmakers were BJ Services, Halliburton, RPC, Inc. (RES), and Sanjel Corporation. Those companies did not respond to requests for comment. 
The Safe Drinking Water Act requires "fracking" companies to obtain water-quality permits when they are injecting fluids underground, but the lawmakers said that EPA has issued no permits authorizing the use of diesel fuel in those wells. No companies have applied for such permits, they said.

If the Rollinses aren't enviros, what are they? Well, they certainly are big-time landowners. They have a Web site devoted to their ranches throughout the South. Here is the Web page for Rollins Ranch Cartersville, which is at the heart of the highway controversy. The family also has massive ranches near Okeechobee, Florida (2); Voor Jaar, Florida; Griffith, Florida; Ringgold, Georgia; and Lagarto, Texas.

According to Sherry Rollins, the Rollins family is the second largest land owner in the South, behind only Ted Turner.

Is it any wonder that Ms. Rollins and her daughters got cheated in an Alabama divorce case against Ted Rollins and his family's massive treasure chest. Compared to making a highway move, that divorce cheat job must have been a piece of cake for the family that is supposed to keep your home safe from roaches. 

Thursday, June 20, 2013

AG Strange Resorts To Tortured Statements Of Law In Seeking Sanctions Against Macon Co. Residents

Johnny Ford
Alabama Attorney General Luther Strange repeatedly misstates law in seeking sanctions against Macon County residents for filing a federal lawsuit against him.

That is the heart of the residents' response to Strange's motion for sanctions, filed June 5. 

Strange says the lawsuit against him and Governor Robert Bentley is frivolous, has no support in the law, and was filed for purposes of harassment--and he claims the plaintiffs and their attorneys should be sanctioned under Rule 11 of the Federal Rules of Civil Procedure (FRCP). But Macon County residents, led by Tuskegee Mayor Johnny Ford, argue in a reply that Strange tramples relevant law in an effort to intimidate them and avoid discovery that could shine light on his financial ties to Indian gaming interests.

Massachusetts attorney Donald LaRoche responded for the plaintiffs in an opposition to sanctions dated July 19, 2013. (See the full opposition at the end of this post.) From the LaRoche filing:

The legal claims in this lawsuit are not barred by clear and on point Supreme Court precedent. On the contrary, the actions of the Defendants in this matter are a blatant violation of the Voting Rights Act of 1965. 
Defendant Strange’s Rule 11 letter, dated 4/15/2013, was designed to intimidate the plaintiffs and their counsel. This letter contained a deadline that was not cited anywhere in the rules, demonstrating Attorney General’s Strange propensity to go to any length to strong arm the plaintiffs into submission to his misinterpretation of the law.

How off target is Strange on the law? LaRoche provides plenty of answers to that question. Here are a few of them:

The plaintiffs in the instant case have filed a complaint that has more than a reasonable factual basis. As argued in both the complaint and in the opposition to the defendants’ motion to dismiss, there are no general laws in Alabama which relate to bingo because it can only be authorized in a particular county by constitutional amendment. . . . Attorney General Strange repeatedly states that the plaintiffs’ complaint makes claims that are not “warranted by existing law or by a non-frivolous argument extending, modifying or reversing existing law or for establishing new law.” However, the Attorney General fails to cite any existing law or conclusive precedent to support this contention.

Strange, former Governor Bob Riley, and their allies have repeatedly cited a case styled Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65, 86 (Ala. 2009) in their attacks on non-Indian gaming facilities, such as VictoryLand in Macon County. LaRoche takes an intellectual machete to that argument and leaves it in shreds:

The Attorney General cites Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65, 86 (Ala. 2009) and Ex parte State of Alabama, _ So.3d _, 20143 WL 765747 (Ala. Mar. 1, 2013) as support for this position that “the Alabama Supreme Court has addressed these ‘bingo’ amendments in multiple counties and these decisions apply statewide.” Barber v. Cornerstone only addressed the bingo constitutional amendment for Lowndes County, Amendment No. 674. . . . The bingo constitutional amendment for Lowndes County is significantly different from the Macon County bingo constitutional amendment. Most importantly, Lowndes County’s sheriff is not constitutionally delegated the authority to promulgate rules and regulations for the operation of bingo in the county as this Court recognized in Hope for Families v Macon County Greyhound Park, Inc., 721 F. Supp. 2d 1079 (M.D. Ala. 2010). The State Supreme Court also recognized in Cornerstone that they “did not adhere to the boundary lines long established in [their] precedent.” Tyson v. Macon County Greyhound Park, 43 So. 3d 587 (Ala. 2010). As such, Cornerstone is inapplicable.

Ex parte State of Alabama is the 2013 case where the Alabama Supreme Court forced Macon County Circuit Judge Thomas Young to approve Strange's petition for a search warrant at VictoryLand. LaRoche shows that Strange's reliance on that case is misguided:

Ex parte State of Alabama is also inapplicable here because it involved a mandamus petition related to the refusal of a circuit judge to issue a search warrant when the circuit judge determined that probable cause did not exist. . . .  A determination of the existence of probable cause does not end the inquiry, it only begins it.

Finally, LaRoche shows that the plaintiffs have a firm foundation for their case, and Strange does not meet the standard required for Rule 11 sanctions:

This complaint is not replete with scandalous allegations that have no relevance to the legal claims that plaintiffs are actually trying to make, but puts forth sufficient factual matters with exhibits that are plausible on its face. The plaintiffs’ contentions are that when Defendant General Strange decided what bingo must be and issued his May 2011 memorandum, he usurped the authority which had been vested solely in the Macon County Sheriff. So while General Strange may have the authority to ‘enforce’ bingo regulations or general criminal laws, he does not have the authority to ‘create’ or ‘promulgate’ the rules anymore than he has the authority to ‘create’ or ‘promulgate’ general criminal laws (such authority being vested in the legislature).

With $25-Million Federal Lawsuit As A Backdrop, Judge Robert Vance Jr. Resists Calls For His Recusal

Robert Vance Jr.
An Alabama judge continues to preside over a controversy where he took the case from another judge, he does not have jurisdiction, and one of the parties is suing him in federal court for $25 million.

On top of that, public records show Jefferson County Circuit Judge Robert Vance has taken at least $3,400 in campaign contributions from lawyers at the Birmingham firm of Maynard Cooper & Gale (MCG), which represents plaintiffs William B. Cashion and Western Steel Inc. The donations put Vance well over the $2,000 threshold set by Alabama law and require his recusal. (See Code of Alabama 12-24-1 et seq.)

Defendants Steven Mark Hayden and the William B. Cashion Nevada Spendthrift Trust filed a second motion for recusal last Friday, and Vance already has denied it. (See Part 1 and Part 2 of the renewed recusal motion at the end of this post.) Meanwhile, the defendants' $25 million federal lawsuit is pending in federal court, where they allege Vance's temporary restraining order and other extrajudicial acts have cost them significant investment returns and interest on the trust.

The federal lawsuit against Vance has drawn national attention, with coverage from the widely read Above the Law Web site. But Vance appears to have dug a trench for himself--ignoring ethics standards, statutory provisions, and case law that call for his recusal--with no plans to exit any time soon.

Lawsuits against state judges in federal court usually are quickly dismissed on judicial-immunity grounds. But Bessemer lawyer Austin Burdick, representing Hayden and the trust, makes a power argument that Vance acted outside his judicial capacity, and therefore is subject to suit--and the payment of substantial damages.

That U.S. District Judge Sharon Blackburn already has not dismissed the federal case indicates she is having a hard time finding a way to let her politically connected judicial colleague off the hook. (Vance's wife, Joyce White Vance, is U.S. attorney for the Northern District of Alabama; his late father, Robert Vance Sr., was a federal judge who was the victim of a mail-bomb assassination in 1989.)

Is Vance Jr. bought and sold for the MCG law firm and its clients? Does he intend to ignore black-letter law that says he must recuse in Cashion matter? Is that the kind of judicial loyalty that campaign cash can buy for a big-time law firm and its corporate clients? Are attorneys at a major downtown Birmingham law firm embarrassed to be involved in such a charade?

The answers to the first three questions appear to be yes. The answer to the final question seems to be a resounding no.

Alabama law regarding recusal of a judge is not complicated. The Canons of Judicial Ethics state “a judge should avoid impropriety and the appearance of impropriety in all his activities” and “a judge should not allow his family, social, political, or other relationships to influence his judicial conduct or judgment.”

Relevant case law makes it even more clear, as stated in a case styled Ex parte Bryant, 682 So.2d 39, 41 (Ala.1996):

The standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a ‘reasonable basis for questioning the judge's impartiality.’ . . . The focus of our inquiry, therefore, is not whether a particular judge is or is not biased toward the petitioner; the focus is instead on whether a reasonable person would perceive potential bias or a lack of impartiality on the part of the judge in question.

Perhaps most profound in the Vance matter is this:

If the Judge has an interest that could be substantially affected by the outcome of the proceeding, he must recuse. Alabama Canons of Judicial Ethics 3(C)(1)(c).

Based on the pending federal lawsuit against him, Vance has about $25 million worth of interest in the outcome of the state proceeding before him. Still, Vance has persisted in ruling against Hayden and the trust, contrary to controlling law, ever since pilfering the case from Jefferson County District Judge Houston Brown. From attorney Burdick's renewed motion to recuse:

Vance may believe that by entering a judgment in this matter against Defendants he can affect the damages or outcome in the federal lawsuit. Whether this strategy is effective or not, the fact remains that any action taken by Vance in this matter is tainted when viewed through the lens of the pending federal lawsuit. Vance cannot help but consider what effect his actions and orders will have on the federal lawsuit. To expect Vance to rule on this matter without any consideration of the other lawsuit is unreasonable. If the Judge has an interest that could be substantially affected by the outcome of the proceeding, he must recuse. Alabama Canons of Judicial Ethics 3(C)(1)(c).

It's rare for a lawyer to stand up to a corrupt judge in Alabama--or any other state. But Burdick has filed public documents that portray Vance in an extremely unflattering light--and supported them with evidence that shows the allegations are on target:

No reasonable person knowing all of the above-listed facts could help but question the impartiality of Judge Vance. Judge Vance has exhibited extrajudicial bias in favor of plaintiffs by (1) inappropriate ex parte communications with Plaintiffs; (2) Judge Robert Vance has accepted excessive campaign contributions from plaintiff and plaintiff’s counsel and thereafter stated on the record that he had no intention of complying with Alabama statutes regarding campaign contributions; (3) he illegally usurped authority over this case and actively prevented this matter from being heard by a jury or competent court; (4) he has repeatedly ignored well established law and issued only rulings which are favorable to Plaintiffs to the extent that his rulings have taken on the tone of litigator rather than jurist.

Is Vance, in fact, acting more like a litigator, for the MCG law firm, than a judge in the Cashion matter? We will be taking a closer look at that question in upcoming posts. 

Wednesday, June 19, 2013

Did Don Siegelman Have The Full, Absolute Loyalty Of His Former Chief Defense Counsel, Doug Jones?

Doug Jones
The rules that govern the conduct of attorneys in Alabama make this concise statement: "Loyalty is an essential element in the lawyer's relationship to a client."

Former Alabama Governor Don Siegelman returned to federal prison last September 11 for his conviction on "crimes" that do not exist under the law, in a prosecution that was brought almost one full year after the statute of limitations on the central charge had expired. How could a high-priced defense team fail to get an acquittal under such outrageous circumstances?

One answer might be that Siegelman's ever-evolving defense team included one or more members who had conflicts that did not serve the former governor well. Our inquiry has focused especially on G. Douglas Jones, a former U.S. attorney in the Clinton administration who was, until recently, a member of the Birmingham firm Haskell Slaughter. Earlier this month, Jones joined with former White Arnold & Dowd lawyer Greg Hawley to announce the formation of Jones & Hawley PC.

Jones also was a central character in the federal Alabama bingo trial, serving as defense counsel for former Country Crossing founder Ronnie Gilley. Ironically, Jones stepped down as Gilley's lawyer prior to trial, much as he did with Siegelman. Gilley went on to plead guilty and testify against VictoryLand owner Milton McGregor and other defendants. Through a trial and re-trial, federal prosecutors achieved zero verdicts.

As for the Siegelman matter, Jones was chief defense counsel at a critical time in the investigation, when the government seemed uncertain whether it even had a case. We already have shown that Jones threw prosecutors a lifeline by encouraging Siegelman to sign a tolling agreement that extended the five-year statute of limitations.

Perhaps of more interest than Jones' actions is his mindset. To get at that issue, we will examine his statements and actions toward three individuals--a former Alabama attorney general and current federal judge, a fellow lawyer with strong political connections, and a veteran journalist.

Did Don Siegelman have Doug Jones' undivided loyalty? Let's take a look. (We will conclude with a video at the end of this post.)

* Doug Jones gives Bill Pryor "thumbs up"--As one of Don Siegelman's chief defense lawyers, Jones might be expected to have serious issues with former Alabama Attorney General Bill Pryor. After all, Pryor launched a state investigation of Siegelman before the new governor's fanny had hardly warmed his chair--and that state probe turned into a federal prosecution that ended with Siegelman in prison on convictions that are not supported by fact or law. Pryor also sealed ballots from the 2002 gubernatorial election when votes for Siegelman mysteriously disappeared overnight in heavily conservative Baldwin County, giving the "victory" to Republican Bob Riley. Pryor's actions ensured there would be no recount--and no revelations about an almost certain case of election theft.

Doug Jones must think Bill Pryor is a dubious guy, right? Heck, no. The Bush administration rewarded Pryor for his skulduggery on the Siegelman case with an appointment to the U.S. Eleventh Circuit Court of Appeals--even though Pryor had zero judicial experience. Pryor's nomination was so controversial, and liberal groups were so strongly opposed to him, that Bush was forced to make a recess appointment.

But Doug Jones thinks Bill Pryor is a swell guy, based on Jones' testimony before the U.S. House Judiciary Committee in October 2007. (See document beneath the video at the end of this post.)

From Jones' own words, we see that he had ample grounds to suspect Bill Pryor was an unethical guy, a partisan hack. On page 3 of his testimony, Jones said he first learned of a criminal investigation against Siegelman in spring 1999, while Jones was serving as U.S. attorney in the Northern District of Alabama. Jones states that lawyers from the Alabama attorney general's office met with his assistants to look at a possible state/federal investigation. During the course of that meeting, the lawyers from the AG's office said they "hoped" the probe would reach the highest levels of the Siegelman administration.

Jones rightly decided that was a bad sign and refused to join the investigation. And he makes it clear that these unethical lawyers worked for . . . Bill Pryor. So why do we then find in Jones' testimony that he finds Pryor to be a "trusted colleague and friend" and was "proud" to support his nomination to the Eleventh Circuit?

Jones receives clear evidence that assistants working for Pryor are corrupt, but he proceeds to declare that Pryor himself is an honorable guy, deserving of a lifetime position on the federal bench? Jones says this in Congressional testimony, even after it was clear that Pryor had played a central role in launching a political prosecution against Jones' one-time client? Was Doug Jones standing up for Don Siegelman or kissing Bill Pryor's judicial fanny?

* Doug Jones gives Rob Riley "thumbs up"--As one of Don Siegelman's chief defense lawyers, Jones might be expected to have serious issues with Homewood lawyer Rob Riley. After all, Riley is the son of Siegelman's chief political rival, a rival who benefited from almost certain election theft in 2002. And Rob Riley had his sticky fingers in the middle of his father's ethically challenged administration every step of the way.

Doug Jones must want to keep his distance from a sketchy guy like Rob Riley, right? Heck, no. They worked together on a massive federal lawsuit against individuals and entities connected to HealthSouth Corporation. They even acted together as "co-liaison counsel" and helped themselves to the proceeds from a case that generated more than $50 million in attorney fees.

In fact, Jones is so tight with Riley that he takes great exception to anyone who shines light on Junior's seedy activities--like health-care fraud, the very charge that Jones and Riley were quick to help throw at others in the HealthSouth case.

In late March 2009, I wrote a post titled "Does Rob Riley Engage in Fraud As He 'Fights' Fraud?" noting that Riley and his physical-therapy company were defendants in a federal whistleblower lawsuit that alleged Medicare fraud.

Does Doug Jones appreciate efforts to expose fraud and corruption? Not when they involve his legal compadre, Rob Riley. Jones attacked me and my reporting in a comment he posted to a well-known progressive listserv based in Huntsville, Alabama. He described me as a person who "wrote on something they obviously know nothing about" and hinted that my work was based on "innuendo and speculation," that I had come to "absurd conclusions."

I wrote about Jones' attack in a post titled "Striking a Nerve with a Key Figure in the Don Siegelman Case." I later tried to interview Jones via telephone on a number of issues. (See video below.)

When I asked for his response to the fact that Rob Riley is alleged in a federal lawsuit to be involved with Medicare fraud, Jones said, "Based on the things I've seen that you've written, I don't think it's worth my time to comment."

Did Jones cite any specifics regarding inaccurate reporting on my part? No. Does he seem to be extremely sensitive about real journalism being applied to Rob Riley? Yes.

Doug Jones gives Legal Schnauzer "thumbs down"--As one of Don Siegelman's chief defense lawyers, Jones might be expected to be a fan of this blog. After all, few journalists in the country have done more to show that Siegelman was the victim of a political prosecution, a corrupt federal judge, and a tainted jury.

Doug Jones must dig Legal Schnauzer, right? Not exactly. I asked Jones about a decision by the U.S. Justice Department in the late 1990s to call off an investigation of Alabama Reassurance, a company owned by Tuscaloosa businessman and University of Alabama trustee Paul Bryant Jr. Alabama Re already had been implicated in a federal prosecution that resulted in a 15-year prison sentence for a Pennsylvania lawyer/entrepreneur named Allen W. Stewart. Investigators had been given the go-ahead by Jones' predecessor to proceed with an investigation in Alabama against Bryant's company. But when Jones took office, someone called off the Alabama Re investigation.

When asked about the case, Jones said he had been precluded from participating in the Stewart case because of a previous attorney/client relationship--and that presumably means he had done legal work for Bryant. Asked specifically if he, as U.S. attorney, called off the subsequent investigation of Paul Bryant Jr.'s company, Jones responded with a stream of insults. And he never answered the question. Here is part of that exchange:

Jones: I'm trying to make sure you understand that I have read your stuff, I have seen your conspiracy theories, and I am not going to answer any of your questions because I don't trust what you will write, period. 
LS: I'm taking it down word for word. . . . I'm asking you, who called off the investigation of Paul Bryant? 
Jones: I am not going to respond to any of your questions . .  
LS: You were a public official then, Doug . . . 
Jones: I am not going to respond to any of your questions. . . . I've seen the garbage you write and the way you spin and the way you slant. It's the most disingenuous stuff I've ever seen. . . . It just doesn't matter to me. You're a nothing to me."

Is Doug Jones a smug, pompous ass? More importantly, does he have solid loyalty to Don Siegelman, his former client who now sits in a federal prison for "crimes" that do not exist under the law? Or is Jones more interested in cozying up to the corrupt likes of Bill Pryor, Rob Riley, and Paul Bryant Jr.?

As for the Alabama bingo trial, evidence strongly suggests that Jones was watching out for Rob Riley's interests all the way--probably because the Riley family long has been at odds with VictoryLand's Milton McGregor. We addressed that issue in an April 2011 post titled "Who Beneifts From Ronnie Gilley's Guilty Plea in Alabama Bingo Case?" From that post:

Jones, in theory, is a Democrat, while Riley has extensive ties to Bush-Republican henchmen. But the two became compadres on the HealthSouth lawsuit, which yielded substantial sums of cash for both of them. So isn't it curious that Ronnie Gilley, whose prime defense lawyer has been Doug Jones, would plead guilty in a move that seems to help the Riley clan? 
How does it help the Rileys? Well, Gilley now appears set to testify against the other bingo defendants, including VictoryLand owner Milton McGregor. And it seems clear now that McGregor has been the feds' main target all along. . . . 
Does it benefit the Rileys to see Milton McGregor wind up in federal prison? Yes. Did Doug Jones help his buddy, Rob Riley, by pushing Ronnie Gilley to plead guilty and agree to testify against McGregor? Our sources say the answer is yes.

When push comes to shove, does Doug Jones tend to come down on the side of Rob Riley and his corrupt GOP associates? A mountain of evidence suggests the answer is yes.

Here is another question: Does Doug Jones have any trouble sleeping at night over his failure to protect the interests of a former governor who is paying a heavy price for a "crime" he did not commit? I invite you to listen to the video below and come to your own conclusions.

(Note: This is the first of three attempts I've made to interview Jones on a variety of topics. In the first two, he was so smug and snippy that we essentially had no interview. He simply refused to answer questions about matters connected to his role as a former public official or as an officer of publicly funded courts. In the third conversation, Jones actually answered a number of questions in a fairly courteous manner. Why the change in his tone? Perhaps it's because of his recent shift to a new law firm, where he is trying to drum up business. Whatever the reason, you will be hearing the original Doug Jones, and the revised version, in a series of upcoming posts.) 

Doug Jones Testimony

Tuesday, June 18, 2013

Judge Michael Putnam and Jones Walker Law Firm Try To Keep A Conflict Of Interest Under Wraps

Michael D. Waters Sr.
A clerk for the U.S. Magistrate overseeing my wife's employment lawsuit against Infinity Insurance is the son of a partner at a major corporate-defense law firm in downtown Birmingham. In fact, the father's law firm represents one of the primary defendants in the case.

Does that explain why U.S. Magistrate T. Michael Putnam has unlawfully dismissed that defendant from the case--along with three corporate entities who are affiliated with her?

We don't have a solid answer to that question yet. But Putnam and his office clearly have a conflict of interest, one that should have forced his recusal from the outset. Instead, he has presided over the case for almost 20 months--a period marked by curious delays, questionable record keeping, failure to notify the plaintiff (Mrs. Schnauzer) of key hearings, and dismissals of corporate defendants that are not supported by law.

Throughout that time, Putnam never has disclosed that one of his chief clerks, Michael David ("David") Waters Jr., is the son of a partner in a firm that represents a defendant who, according to allegations in my wife's complaint, started the process that led to her unlawful termination at Infinity.

How best to explain the glaring conflict of interest? You need a scorecard to keep up with the players in Carol Shuler v. Infinity Property & Casualty et al (2:11-cv-03443-TMP), so we will offer an explanation in "scorecardy" fashion. Here it is:

* David Waters Jr. is a 2010 graduate of the University of Alabama School of Law. He is a chief clerk for Judge T. Michael Putnam in the Northern District of Alabama;

* David Waters' father is Michael David Waters Sr., a partner in the Birmingham office of the Jones Walker law firm, which has more than 375 attorneys in nine states and the District of Columbia. 

Kary Bryant Wolfe
* Kary Bryant Wolfe, special counsel in Jones Walker's Birmingham office, represents defendant Angie Ingram in my wife's lawsuit. Ingram is the principal at the Ingram & Associates debt-collection law firm, and my wife alleges that Ingram participated in a conspiracy to cause her unlawful termination at Infinity after we took steps to aggressively pursue discovery in a lawsuit against Ingram and other entities under the U.S. Fair Debt Collection Practices Act (FDCPA). 

* Is it likely that David Waters' Sr. and Kary Bryant Wolfe are fairly close colleagues? Well, they both work at Jones Walker's Birmingham headquarters at One Federal Place downtown (also the home, by the way, of the august firm Bradley Arant, with its ties to Mexican drug cartels and other unsavory activities). Waters Sr. works in the firm's Banking and Financial Services Practice Group. Wolfe is in the Business and Commercial Litigation Practice Group. Is their quite a bit of overlap in those two groups, with lawyers from one often working with lawyers from the other? Certainly sounds like it.

Why does it matter that David Waters Sr.'s son works as a clerk for the judge who is overseeing a case in which the Jones Walker firm has a decided interest? Law clerks are glorified "gofers" aren't they, making sure primarily that the coffee pots are filled and the trash cans are emptied?

Well, it turns out that the term "law clerk" often is misunderstood by the public. That sounds like someone whose work duties don't go much beyond filing and such. But as we reported in a post last September, many orders and opinions in federal courts are written not by judges, but by their clerks. California lawyer William Domnarski shined light on the issue in an op-ed piece last year for The New York Times, calling the situation "embarrassing" for the legal profession. From our post on the subject:

Law clerks write the opinions for almost all federal appellate judges, Domnarski writes, and it stands to reason that the practice also is common in federal trial courts. Domnarski says members of the legal tribe rarely discuss the issue because it "raises too many embarrassing questions." Domnarski goes on to write: "We have become too comfortable with the troubling idea that judging does not require that judges do their own work."

Is David Waters Jr. writing the orders and opinions for Judge Putnam in my wife's employment case? You pretty much can count on it? Is that why the documents have tended to favor the Jones Walker law firm and various corporate-connected defendants? You probably can count on that. Is that why Angie Ingram, represented by David Waters Sr.'s colleague Kary Bryant Wolfe, has been dismissed from the case, even though black-letter law says that can't happen? You probably can count on that, too.

What is the black-letter law that governs Ingram's attempt to be dismissed? Details are available in a document that can be viewed at the end of this post. But here is the crux of the matter:

The simple issue is this: Ingram cannot be dismissed from this case because she submitted evidentiary matters requiring that her Rule 12(b)(6) Motion to Dismiss be treated as a Motion for Summary Judgment—and Shuler is entitled under the law to conduct discovery in order to counter that evidentiary material. 
The Court cites some half dozen cases on this simple issue, but the controlling Eleventh Circuit case is Snook v. Trust Co. of Georgia Bank, 859 F. 2d 865 (11th Cir., 1988).

What about the dismissal of corporate entities such as American Express, NCO, and JPMorgan Chase? Mrs. Schnauzer's complaint alleges--and the record will show--that they had an agency relationship with Ms. Ingram and her law firm. That means those companies, under the law, have vicarious liability for damages that Angie Ingram caused. 

The law on vicarious liability, at this stage of the case, could not be more simple. One court document sums it up this way:

The U.S. Eleventh Circuit Court of Appeals has found: “Although the complaint need not expressly state that [Defendant] was vicariously liable to the Sprinkles, it must at least give notice of vicarious liability.” Category 5 Management Group v. National Casualty Insurance Company, (Eleventh Circuit, 2012). At this stage in the proceedings, Shuler is required only to give notice regarding vicarious liability, and she has met that standard.

If David Waters Jr.'s duty is to research and write Judge Putnam's orders and opinions so that they accurately reflect the law, he is doing a wretched job. If, on the other hand, his assignment is to ensure that his father's law firm and various corporate entities receive one unlawful favor after another . . . well, he's getting the job done.

This much is certain: Judge Putnam and his office have handled the case in such an inept fashion that my wife actually was forced recently to submit a document styled "Motion for Court Action." In it, she essentially begs the court to take action on matters that have been pending for several months and need resolution so that the parties can move forward with discovery. You can read the document below.

Have certain documents been gathering dust because David Waters Jr. has not been able to figure out a way to mold them so that they favor the Jones Walker law firm? I'm starting to think the answer is yes.

Monday, June 17, 2013

CEO Ted Rollins Used His Daughter As A Shield When Financial Secrets Were At Risk Of Exposure

Ted Rollins and partner Mike Hartnett
at the New York Stock Exchange
Sherry Carroll Rollins put her investigative skills to good use in the late 1990s when her marriage to Ted Rollins was unraveling in Greenville, South Carolina.

One trip to her husband's office, while he was away on business, yielded evidence that their daughter, Sarah Rollins, had a trust fund that had been kept secret. That trip also produced signs that Ted Rollins was carrying on extramarital affairs with multiple women, including an Emory University health-care executive named Cary Sheahan.

A second trip to the office while Ted Rollins was away produced a scene that sounds like it came straight from a John Grisham movie. And that scene shows how far Rollins patriarchs will go to protect their secrets.

Sherry Rollins now lives in Birmingham, where she was on the wrong end of a courtroom cheat job once her divorce case unlawfully was shifted from South Carolina to Alabama; Shelby County Circuit Judge D. Al Crowson issued a bogus divorce judgment that was so one-sided it has forced Ms. Rollins and her two daughters--Sarah,  now 19, and Emma, 15--to be on and off of food stamps for several years.

Ted Rollins, meanwhile, still lives in Greenville and is CEO of Charlotte-based Campus Crest Communities, which has generated more than $730 million in Wall Street support since it went public in 2010.

You might think that the CEO of a public company would have a history of transparency on financial matters. But not Ted Rollins. In fact, he will go to extraordinary lengths to make sure certain information stays under wraps.

How did Sherry Rollins' second trip to her husband's office come about? By this time, his quarters had moved from the First Union Building to the Crescent Center, which he had helped develop for a family business called St. James Capital. Also by this time, Sherry Rollins had filed for divorce, and a Greenville lawyer named James McLaren had suggested she get certain information for use in court.

That sets the scene for Office Visit No. 2, which Sherry Rollins described in an e-mail to Legal Schnauzer:

After [Ted] moved to the Crescent Center, my mother, Sarah and Emma went to the Crescent Center after hours around 5:00 and I entered the building. I needed proof of the cost of my house and other things about the company, St. James. The lawyer, Jim McLaren, asked me to get proof of certain things for court. Sarah was playing in the rose garden and Mother was watching her, and Emma was asleep in the car. 
I went into his office as it was unattended and took files from a drawer regarding the house I lived in and other files, including the file on Sarah's trust fund.

Sherry Rollins was about to place the material in her vehicle when Ted Rollins appeared:

[Ted] walked up with a construction worker while I was loading the files. He grabbed Sarah and threatened to hold her and keep her if I didn't hand him the files. I reluctantly gave him the files in exchange for Sarah, as I knew I had files that were important to our future. He put her in her car seat and grabbed all the files.

How classy a guy is Ted Rollins? Here, according to Sherry Rollins, are the exact words he said to her:

If you want this kid, give me the G-d--ned, f-----g files.

Did Ted Rollins threaten to kidnap his own daughter--"this kid," in his words--if he did not get his files back? That's what it sounds like. One can only wonder what was in those files. One, however, need not wonder about Ted Rollins' vindictive nature. The following passage from Sherry Rollins spells that out in clear terms:

[Ted] later called the police and tried to have me arrested for breaking and entering. The office was open, and I did not break in. The police came for me the following day and threatened me. I was told to report to the police station and turn myself in. I called a lawyer locally and asked him to meet me there. He got me off of the charge. 
I went back home, and mother packed, and the girls and I drove her home to Tennessee. We were so scared--mother crying, the kids crying. I drove all the way to Tennessee, and the girls and mother sobbed most of the way. It was horrible, so scary. Then when I got back to Greenville, the police came to my house again and tried to arrest me. I called the lawyer again, and he got them to leave me alone again. I can't remember how much I had to pay the lawyer; but it was a lot.

I contacted Ted Rollins via e-mail and requested an interview on the above incident. He has not responded to that request. 

Previously in the series:

A Wife's Investigative Skills Turn Up Information About CEO Ted Rollins' Extramarital Activities (June 3, 2013)

New Court Ruling Might Force Wealthy Rollins Clan To Allow Light Into Some Dark Financial Corners (April, 23, 2013)

Why Would Wall Street CEO Ted Rollins Take Steps To Keep His Daughter's Trust Fund Under Wraps? (May 28, 2013)