Monday, July 8, 2013

Federal Court Cites Immunity In Granting Dismissal Of $25-Million Lawsuit Against Judge Robert Vance

Robert Vance Jr.
A federal court has dismissed a $25-million lawsuit against Jefferson County Circuit Judge Robert S. Vance Jr. It appears, however, that U.S. District Judge Sharon Lovelace Blackburn ignored binding Eleventh Circuit precedent in issuing the dismissal. 

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.


Anonymous said...

Judicial immunity is a crock. Why should a judge not have to answer for violating the law?

Anonymous said...

If Vance is acting lawfully, why is he hiding behind judicial immunity? Why doesn't he answer the actual claims in the lawsuit?

Anonymous said...

If it's OK for one judge to steal a case that's been assigned to another judge, then why have cases randomly assigned at all? Let's just have a free-for-all.

Anonymous said...

Robert Vance is a tool for Maynard Cooper & Gale--and he doesn't even try to hide it.

Anonymous said...

Sharon Blackburn benefited from state-court corruption in her divorce from Joe Blackburn. No way she was going to bite the hand that has fed her.

Anonymous said...

If I remember correctly, Vance talked during his campaign for Supreme Court chief justice about the importance of the public believing in a court's integrity. Given his actions in the Cashion case, why should the public believe in his integrity.

Anonymous said...

This case seems simple to me. The law says a judge must act on a case before him in order to be protected by immunity. Vance acted on a case that was not before him. He therefore is not immune.

Anonymous said...

Here is a suggestion for Robert Vance. Why don't you hold a press conference/public meeting and take any and all questions about your handling of the Cashion matter? The public deserves to hear your explanations on this.

legalschnauzer said...

Anon at 1:04--

I like your idea. It would never fly with Vance, but I like it anyway.

Anonymous said...

Why isn't the U.S. attorney looking into this?

Oh wait . . . that's Vance's wife.

Anonymous said...

Mumia Abu Jamal explains in his book Jailhouse Lawyers, the law is whatever the judge says it is. Of course there is the possibility of a judge being overturned by a higher court, but in this particular instance, due to the fact that all judges are paid with taxpayer money, it wouldn’t be in their interests to do so.

Since we have no way to hold our federal officials directly accountable during their terms of office, which is the only time they’re supposed to represent us, we cannot exercise our will through them, so when we vote, we delegate to them the power to govern us according to their will, not ours. By voting, we are presumed to have consented to grant them the power and authority to tax us, imprison us, taser us, grope us at airports, export our jobs, give our money to their wealthy campaign donors, and even, should they decide that we are dangerous to national security, shoot us without bothering to allow us due process.

So if half of us consent, we are all presumed to have consented. To everything. The rest, those of us who won’t vote because we do not consent to delegate our power to people we can’t hold accountable, are presumed to be “apathetic,” although in the only poll that ever questioned nonvoters, most said that the reason they didn’t vote was that they didn’t feel that anyone on the ballot with a chance of winning would represent their interests. However a recent poll of voters found that only 11% approve of what our government is doing, so 89% of voters are so apathetic that they’re granting their consent of the governed to a government they don’t approve of. Now that’s apathy!

James Greek said...

Anon at 11:29 AM

If there was a like button on yor comment, I'd click it.

Anonymous said...

...and this is why you're not a lawyer. You've latched on to an excerpt from a case without reading it in context. The four factors enumerated in Sibley are not all required to be met. The question is whether the acts were the "type[s] of act[s] normally performed only by judges" (which is what the four factors HELP to determine), and these quite obviously were for reasons that the district court notes. Stump v. Sparkman
, 435 U.S. 349, 356-57, 360 (1978). You've also ignored the district court's reliance on Ex parte Metropolitan Life Insurance Company
, 707 So. 2d 229 (Ala. 1997). And, as the district court noted, the plaintiffs failed to cite ANY authority whatsoever for the proposition that a judge in a court of general jurisdiction lacks subject-matter jurisdiction to issue an order in a case that isn't assigned to him but is before his court. Dist. Ct. Order, p. 8; Pl. Resp., passim. The plaintiff's response attempts to avoid this by glossing over the argument for WHY Vance didn't have jurisdiction and focusing on the effects of a lack of jurisdiction. Your odd animus against lawyers and judges, lack of legal training, and susceptibility to confirmation bias lead you to be unable to see this exceptionally flimsy legal argument for what it is.

legalschnauzer said...

I'm not a lawyer because I don't want to be a lawyer--and you couldn't make me be one at gunpoint. You, on the other hand, apparently are a lawyer--and based on this comment, you must be a bad one.

If you read Scott v. Hayes, the underlying case cited in Sibley, it uses the following language:

"This test has been restated by the former Fifth Circuit to consist of a combination of four factors, whether:"

It then recites the four factors noted in my post and analyzes each of them, and the context shows that any of the four can deprive a judge of immunity.

In Scott, the case had been assigned to Judge Hayes, and that is the primary reason he maintained immunity, in spite of some wildly inappropriate comments from the bench.

In the Vance situation, the case is not assigned to him and there was no meeting of all parties before the judge. Therefore, two of the prongs are not met.

At the very least, dismissal should be denied, with discovery conducted to provide more information about Vance's actions. If he meets the standard at summary judgment, so be it. But he doesn't meet it at dismissal.

You don't seem to be comfortable with the language of Sibley--and underlying cases such as Scott and Harper. But you can't change what the words say, not matter how hard you try.

Nice effort, even though you failed.

P.S.--You are right about one thing. Sibley does not require the complainant to meet all four prongs for immunity to be removed. They need only meet one, and Hayden/Trust meet two.

Unknown said...

.. Your odd animus against lawyers and judges, lack of legal training, and susceptibility to confirmation bias lead you to be unable to see this exceptionally flimsy legal argument for what it is.

"*Odd animus against lawyers and judges ...."

*No this isn't a factual statement, other than stupid and dogs are not as dumb as you.

"The anima and animus, in Carl Jung's school of analytical psychology, are the two primary anthropomorphic archetypes of the unconscious mind, as opposed to both the ... "

OK wise one, where do you find your psycho babble to dribble into the world of intelligent?

And you have the audacity to be more in words than necessary.

Best read Mark Twain a while and then join in the fight with the dog that is way bigger than that poor beaten down one in you.

Sad your anima and animus are truly not on point with how the world works in the outer. This is our problem in America. Those that use words that aren't other than simply verbal vomit.

Hope you learned something from ... "It's not the size of the dog in the fight, it's the size of the fight in the dog." - Mark Twain

You're in the wrong dog fight, anon9:58PM.

No lawyers need to be here, cause we're already 'citizens lawyers' that get well taught here, and therefore, are well aware of the corruption and junk yard dogs with no animus or anima.

You're proof of how bad the USA is with respect to ignorant.