Tuesday, May 19, 2015

Orders in Rob Riley and Liberty Duke defamation lawsuit were void, including the one that sent me to jail

Claud Neilson
A recent Alabama Supreme Court ruling suggests all of the orders in the Rob Riley/Liberty Duke defamation lawsuit against my wife and me were void and due to be vacated. That includes the order that unlawfully sent me to jail for five months.

What happens when a court takes action against defendants over which it does not have personal jurisdiction? Specifically, what happens when defendants challenge service as improper or invalid, and plaintiffs fail to prove otherwise?

A case styled Ex parte Trust Company of Virginia (Ala. Sup. Ct., 2012) addresses those questions and illustrates the importance of making sure defendants are properly served with a complaint. If service is not proven to be proper, or "perfected" as judges like to say, the court essentially has no authority to act.

That means Alabama judge Claud Neilson had no authority to send me to jail on a contempt-of-court charge for allegedly violating a preliminary injunction and temporary restraining order (TRO) in the Riley/Duke case. Of course, we already have shown--and analysts from all corners of the political spectrum have agreed--that Neilson's orders were unlawful on First Amendment grounds. But now we know Neilson's actions were worse than unlawful; they were void because he had no authority to make them.

How do we know? Let's consider the words from Ex parte Trust Company of Virginia. That was an estate case in which the Trust Company of Virginia (TCVA) had been appointed conservator of property owned by a woman named Amy Falcon Morris. Ms. Morris had been declared incapacitated in 2008, and when she died in 2011, an Alabama probate court issued several orders against TCVA. The trust company filed a motion to vacate those orders, which the trial court denied. TCVA then sought an interlocutory writ from the Alabama Supreme Court, directing the lower court to vacate the orders for lack of personal jurisdiction.

The TCVA case is right on point with what happened to us. We filed a motion to quash service after Alabama deputy Mike DeHart conducted an unconstitutional traffic stop to give us court papers in the Riley/Duke case. TCVA filed a motion to vacate and we filed a motion to quash, but the issue is the same--we both challenged service, and the Alabama Supreme Court makes it clear what is supposed to happen in such cases:

TCVA argues that the probate court lacked personal jurisdiction over TCVA because TCVA was not named as a party in the probate proceeding and was not served with notice of the proceeding in the probate court. We observe that TCVA maintains that it was never served with process of the proceeding in the probate court or provided with proper notice of that proceeding. This Court has held: . . .

"When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally." Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983).

We made the same argument in our motion to quash. (See motion at the end of this post.) In the TCVA case, the trial court conducted a hearing on the service/jurisdiction issue. In the Volkswagenwerk case, three hearings on the issue were conducted, apparently because it involved complex issues of international service.

Either way, Alabama law requires a hearing for both parties to submit evidence, with the burden of proof on plaintiffs to show that service was performed properly. In our case, I was arrested and thrown in jail before ever receiving notice of a hearing--and, in fact, the record shows that no hearing was held, and Riley/Duke never were required to meet their burden.

What does it mean when plaintiffs fail to meet their burden once service has been challenged? The Alabama Supreme Court spells it out in TCVA. Ms. Morris' son, as administrator of her estate, was given an opportunity to prove service had been perfected. But he came up well short:

Mr. Morris, as administrator of the estate opened in the probate court, has not alleged any facts before this Court that would prove that he served the conservatorship, nor has he contested TCVA's allegation as to the absence of service of process. It is axiomatic that a court does not obtain personal jurisdiction over a party upon which service of process has not been perfected and proper notice has not been provided. Because there is no evidence before this Court that the conservatorship ever received service of process or proper notice, the probate court does not have personal jurisdiction over the conservatorship, and its orders directed to the conservatorship are void and due to be vacated.

Like Mr. Morris, Riley and Duke never met their burden to show that service of process was perfected and proper notice was provided. That means Judge Claud Neilson never obtained personal jurisdiction over my wife and me--and all of his orders directed to us are void and due to be vacated.

Is this profound? Well, I lost five months of my freedom because of an order from a judge who had no authority over me. My wife lost her husband for five months--and some might say that's not such a bad thing--but she also was terrorized for five months, fearful that she too would be arrested.

This adds more evidence to my claim that my arrest amounted to a state-sanctioned kidnapping--all because I write a blog that made a few powerful people uncomfortable.

I invite you to step into our shoes and ask yourself, "How would I feel if this was done to me and my family? How would I feel if a rogue judge ordered me or someone I care about to be kidnapped?"


Anonymous said...

It seems pretty clear the Rob Riley case had nothing to do with the law. I've followed it pretty closely, and I'm not sure there was a single lawful action taken by Judge Neilson.

I guess he thinks the public is too stupid to know and too apathetic to care.

Chas said...

This was pretty much your argument all along wasn't it, that the court didn't have jurisdiction over you?

I seem to recall that Rob Riley made light of your claim to the NYT, but now, it looks like you were on target.

legalschnauzer said...

Chas, yes it was part of the argument I made in my one appearance before Judge Neilson, in shackles and chains on Nov. 14, 2013. I also argued under Near v. Minnesota, there could not be a preliminary injunction because that is an unlawful prior restraint. You might say one argument was procedural and the other was constitutional.

Anonymous said...

If you lived in Shelby County, the Shelby County court had jurisdiction over you.

legalschnauzer said...

Nope, that's not how it works, @11:20. A court only has authority over you, and the ability to act against you in a civil case, when service has been "perfected." If service is challenged as improper, as it was in this case, the burden is on the plaintiff to prove that service was proper. Riley and Duke never did that--and there wasn't even a hearing at which they attempted to do that. Thus, the court had no personal jurisdiction over me or my wife and could not take action related to us. It's pretty simple law.

Steve said...

In view of what has happened to you. If you can demonstrate that Judge Claud Neilson acted improperly towards you, can you make a claim against him for damages? Would you have to serve him with a writ ?

legalschnauzer said...

Steve, suing a judge is difficult. Generally, they are immune from any acts taken in their capacity as a judge. However, my understanding is immunity can be lost if they act without jurisdiction, as Neilson did here regarding personal jurisdiction. There are different forms of jurisdiction, so that can be a tricky subject. I certainly have grounds for a complaint against Neilson, and I'm sure certain hurdles will have to be crossed along the way. Perhaps more importantly, his strings probably were being pulled by individuals who do not enjoy the protection of immunity. That might be where the rubber really meets the road.

e.a.f. said...

oh this is going to be some interesting, as they say.

I do hope you receive compensation so you can be "made whole again". It would be only fitting that the people who upset Mrs. L.S. pay for that. Oh, and you need to be compensated also.

People need to understand the Constitution of the U.S.A. is not just for the 1%ers. It was written to protect all citizens and no matter how inconvient it may be for some, it must be adhered to by all.