|Robert Vance Jr.
Bessemer attorney Austin Burdick, representing Dr. Steven Mark Hayden of Wetumpka and the William B. Cashion Nevada Spendthrift Trust, has filed a notice of appeal. Based on our review of the relevant case law, Blackburn's ruling should be overturned. That would present a rare case of a state judge being forced to answer for his unlawful acts.
Blackburn dismissed the case against Vance by citing judicial immunity, a doctrine that protects judges from liability for almost all acts taken in their judicial capacity. But Blackburn admits in her ruling that she could find no case law that was on point with the facts alleged against Vance. And she ignores a controlling Eleventh Circuit case that suggests immunity does not protect Vance on at least two grounds. (See Burdick's response to Vance's motion to dismiss, plus Blackburn's ruling, at the end of this post.)
The federal complaint grew out of a state case styled styled William B. Cashion and Western Steel Inc. v. Steven Mark Hayden, et al (Case No. CV-2012-209). 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. Acting in that capacity, Hayden established a Nevada trust to protect assets when his uncle began investing heavily in an Alabama gold mine.
Vance issued four rulings in the Cashion case, even though the matter was not assigned to him. All four rulings were favorable to Cashion and his attorneys from the Birmingham firm Maynard Cooper & Gale (MCG), which has contributed heavily to Vance's election campaigns. In fact, public records show that MCG lawyers gave at least $3,600 to Vance's most recent campaign, and that far exceeds the $2,000 threshold set by Alabama law, requiring Vance's recusal.
Central to the federal complaint are the four rulings, including a temporary restraining order (TRO), that Vance issued when the case was not assigned to him. At the time, the case had been assigned to Circuit Judge Houston Brown. Hayden and the trust allege that the unlawful TRO has kept them from nurturing the trust's principal and caused the loss of investment returns and interest totaling more than $20 million.
Did Vance act outside his judicial capacity in a way that removes the cloak of judicial immunity? The plain language of a case styled Sibley v. Lando, 437 So. 3d 1067 (11th Cir., 2005) indicates the answer is yes.
Sibley establishes a four-prong test for determining whether a judge is acting in his judicial capacity. Here is how it reads:
Whether a judge's actions were made while acting in his judicial capacity depends on whether: (1) the act complained of constituted a normal judicial function; (2) the events occurred in the judge's chambers or in open court; (3) the controversy involved a case pending before the judge; and (4) the confrontation arose immediately out of a visit to the judge in his judicial capacity. Scott v. Hayes, 719 F.2d 1562, 1565 (11th Cir.1983).
Based on allegations in the federal complaint, which must be taken as true for purposes of a motion to dismiss, Vance fails to meet prongs 3 and 4.
First, the case was not pending before Vance; at the time of his four rulings, it was pending before Judge Houston Brown. Second, Hayden and the trust allege there was no legitimate visit to Vance in his judicial capacity, certainly not one where all parties were present. From page 9 of the federal complaint:
On March 28, 2012, the conspiracy between Cashion and Vance to deprive the Trust of due process continued as an ex parte hearing was conducted wherein Judge Vance and counsel for Cashion discussed an injunction and settlement of this matter. . . .
Exhibit 8 reflects that present at the hearing were only Judge Vance, Attorney Bethay for Cashion, and Attorney Miller for Cashion.
A review of the Case Action Summary Report shows that on March 28, 2012, no Answer had been filed on behalf of the Trust and that no attorney of record had noticed an appearance on behalf of Angela Rea Hayden as trustee for the William B. Cashion Nevada Spendthrift Trust.
Neither Angela Rea Hayden nor anyone else claiming to represent the trust was present for the March 28, 2012, hearing. In fact, Mrs. Hayden has never been to the Jefferson County Courthouse.
Under the controlling law of Sibley, what constitutes a "visit to the judge" under prong 4? That is not clear, but court documents show that no one from one side of the controversy was present. Given that the case was assigned to Judge Brown at the time, and no one representing the Haydens and the trust was present, Vance appears to have been acting outside his judicial capacity. That is based on prongs 3 and 4 of the Sibley test.
Blackburn seems to acknowledge that her order dismissing the case against Vance is resting on weak legs. From page 6 of her order:
The court has found no Alabama case directly on point with the situation in this case. However, in a recent decision, the Alabama Court of Civil Appeals noted that “Subject-matter jurisdiction generally lies with a court . . . and not with a specific judge sitting on that court . . . ” Ex parte Montgomery, 79 So. 3d 660.
How weak is Blackburn's reliance on Ex parte Montgomery? It's extremely weak.
First, Montgomery was a divorce case that involved facts radically different from those present in Cashion. Second, Montgomery involved orders that had been issued by both the judge assigned to the case and the presiding judge (while the assigned judge was on medical leave). Third, the appellate court rejected the husband's argument that orders by the presiding judge were void, but it did so because that issue had not been raised before the trial court; the appellate court made no definitive finding on the merits of the husband's argument. (Blackburn pulled her language from a footnote that included no support from controlling law.)
Here is the primary relevant finding from Montgomery:
Accordingly, because the husband never argued to the trial court that all orders entered by Judge Johnson were void because he did not have the authority to enter the orders, we conclude that the husband has waived consideration of that issue.
Judge Johnson was a presiding judge, acting on behalf of a judge who was on medical leave. That was not remotely the case with Vance. Even if a state case such as Montgomery were controlling law in a federal case--and it isn't--it conflicts with Sibley, which is controlling federal law within the Eleventh Circuit. The bottom line? Sibley cites two grounds upon which Vance is not protected by judicial immunity.
Blackburn likely was grasping at any straw she could find to let a judicial colleague off the hook--and she grabbed a straw that is stunningly weak and contrary to Eleventh Circuit precedent.
A serious review of the relevant law leads to only one conclusion: Robert Vance Jr. acted outside his judicial capacity in Cashion, and he therefore is not protected by immunity. That means he is subject to being held accountable for the substantial damages he allegedly caused to the Haydens and the Cashion trust.