|Legal Schnauzer blogger Roger Shuler|
Prattville attorney Davy Hay filed the motion in Jefferson County Circuit Court yesterday afternoon, and al.com's Kent Faulk reported on it this morning in an article titled "Blogger Roger Shuler fighting $3.5-million judgment."
The motion outlines the extraordinary circumstances that prevented my continued appearance in the Garrison case, leading to the default judgment. As has been widely reported in the national and international press, law-enforcement officers beat me up inside my own home because of alleged contempt of court in another defamation case brought by two other GOP operatives, attorney Rob Riley and lobbyist Liberty Duke.
Deputies showed no warrant, never said they had a warrant, and entered my property without stating their purpose for being there, meaning the "arrest" was unlawful and essentially amounted to a kidnapping. On top of that, the preliminary injunction I supposedly violated was unconstitutional under more than 200 years of First Amendment law, as outlined in briefs from the ACLU and The Reporters Committee for Freedom of the Press.
I wound up spending five months in the Shelby County Jail, becoming the only journalist in the western hemisphere to be incarcerated in 2013. I also am the only U.S. journalist since 1900 to be jailed because of an unlawful preliminary injunction in a purely civil matter.
The motion states that after my release from jail on March 26, 2014, my wife Carol and I immediately faced foreclosure on the home we had lived in for 25 years. The psychological trauma of dealing with jail and possible homelessness caused me to spend six days for evaluation in a hospital psychiatric unit, where I was diagnosed with post-traumatic stress disorder (PTSD).
Carol and I continue to live under circumstances where we fear for our lives and safety, given that both of us were subjected in Alabama to what amounts to court-sanctioned kidnappings. (Officers also tried to arrest Carol, in large part because Riley and Duke unlawfully named her as a defendant in a case over issues that did not involve her.)
Because of Carol's ability to avoid capture, she got out word about what had happened to me--and that led to widespread coverage of my arrest, including an article in The New York Times. Riley and Duke had asked for the case file to be sealed, so if deputies had kidnapped Carol too, we both probably would have just disappeared--with the public having no way of knowing what happened to us.
Would we have been killed or permanently detained? Would our cats have been murdered or forced to starve, with no one to care for them? We ask ourselves those and many other questions.
Attorney Hay outlines the circumstances we faced in the Motion to Vacate Default Judgment. The full motion can be read at the end of this post:
* "Mr. Shuler and his wife lost their home and were facing the very real possibility of being homeless. This being such a pressing and immediate issue, all other concerns had to be given lower priority.
* "Mr. Shuler had just spent five (5) months in jail, which began with being beaten by law enforcement officials in his own home and wrongfully detained, in violation of his constitutional rights".
* "Mr. Shuler and his wife experienced excessive psychological trauma, resulting in the defendant spending six (6) days in a psychiatric unit, in direct relation to these events, and was diagnosed with Post Traumatic Stress Disorder."
* "Mr. Shuler has a good-faith belief that his very life has been in actual peril as a result of his reporting. Accordingly, he has been and continues to be highly reluctant to submit to the authority of the state after what he perceives to be illegal attacks against his person, his family, and his rights as a citizen of the United States."
For the record, I feel the taking of our home amounts to a wrongful foreclosure under Alabama law. The elements of the tort are spelled out in a 2010 article from the Burr Forman law firm, titled "The Rising Tide of Wrongful Foreclosure Lawsuits." From the article:
Additionally, where a mortgage provides for a power of sale, under Alabama law, a wrongful foreclosure action lies whenever the power of sale is exercised "for a purpose other than to secure the debt owed by the mortgagor.."Reeves Cedarhurst Dev. Corp. v. First Am. Fed. Sav. and Loan Ass'n, 607 So. 2d 180, 182 (Ala. 1992). Such an improper purpose includes the mortgagee's goal of oppressing the mortgagor or furthering some interest of another. Johnson v. Shirley, 539 So. 2d 165, 168 (Ala. 1988).
Carol and I are convinced the foreclosure on our home was conducted for the improper purpose of turning our lives upside down and forcing us to move, with the goal of causing the demise of my reporting on this blog. We hope to show that in court.
Because of the forced moved, I stopped receiving notice of hearings in the Garrison lawsuit, and that led to the default judgment. As we already have shown, default judgments long have been disfavored in Alabama as a matter of law and public policy. That is clearly stated in a case styled Abernathy v. Green Tree Servicing, (Ala. Civ. App., 2010):
We begin our analysis by pointing out what we have affirmatively acknowledged in many cases: default judgments are disfavored because "'such judgments preclude a trial on the merits.'" Stanfield v. Stanfield, 2 So. 3d 873, 876 (Ala. 2090488 Civ. App. 2008) (quoting Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600, 604 (Ala. 1988)).
In the motion to vacate, attorney Hay seeks leave to file a counterclaim on my behalf, states that I have a meritorious defense, and claims the $3.5-million figure was reached in part because of an improper analysis that Garrison is a "private person." In fact, Hay argues, Garrison is a "public figure" under the law, by virtue of her significant role in Strange's statewide campaign, plus her leadership role in the national Republican Attorneys General Association (RAGA). In essence, Hay writes, Garrison's lawsuit was designed to "bully the defendant (Shuler) into silence." From Kent Faulk's article at al.com:
Hay states in the motion that Shuler has a meritorious defense in the case, "and by virtue of evidence currently in his possession and that which can be obtained through exhaustive discovery, shall show that the case against him is frivolous and nothing more than an attempt by the plaintiff to unconstitutionally bully the defendant (Shuler) into silence."
Hay argues in the motion that Garrison is a public figure, based on her work on Strange's campaigns, her appointment as Chief Counsel and Deputy Attorney General of the state of Alabama in 2011, and her position as director of the Republican Attorneys General Association. If Garrison was to be considered a public figure, rather than a private citizen, it would raise the burden to that of proving actual malice, the motion states.