I've let someone talk me into censoring a post only once in LS history, and it was a mistake, one I am correcting shortly, with insights about Garrison case

Davy Hay

Since this blog began in June 2007, there has been only one instance where I let someone talk me out of publishing a post. I've regretted it ever since, and I intend to correct the mistake in the next few days. But first, some background.

A hearing was held in Jefferson County Circuit Court on June 18, 2015, to consider my motion to vacate a $3.5-million default judgment for GOP operative Jessica Medeiros Garrison in her defamation lawsuit against me. I had researched the issues enough beforehand to know there was no way, under the law, Judge Don Blankenship could allow the default judgment to stand.

Davy Hay, my attorney at the time, and Garrison lawyer Bill Baxley argued the issues, and Blankenship stated that he would issue a written order in a few days or weeks. I knew the motion had to be granted, with the default judgment vacated, and the case moving forward with discovery and possibly a trial. I wrote a post to that effect and published it the next morning, June 19, explaining the facts and law that Blankenship had to follow -- at least if he took his judicial oath seriously.

Later that day, Hay contacted me and asked that I remove the post. His thinking? He said the post made it look like he couldn't "control" his client. Reluctantly, I took the post down, and naturally, Blankenship issued an order several weeks later, ignoring the law and denying our motion to vacate.

As it turned out, my post was spot-on about most every issue. But Davy Hay apparently only cared about not being embarrassed because his client had written accurately that a judge was incompetent, crooked, or both.

Hay then bailed out of the matter, even though we had a written agreement for him to represent me in the Jessica Garrison case -- the whole case. Hay got tons of free publicity from my case, and made multiple high-minded statements on his Facebook page about the critical free-speech issues at hand. But ultimately, he had no interest in fighting for those weighty, constitutional issues.

In a Facebook post dated April 23, 2015, Hay wrote:

I am about to hit "File Motion" on the single most important document I have ever written.

The document was a motion in my case. In a Facebook post dated April 28, 2015, Hay stayed with the high-minded theme:

My client and I are fighting for the most basic freedoms guaranteed under the First Amendment of the United States Constitution.

I was that client. Hay then used my case to get the kind of publicity he probably has never gotten at any other time in his legal career. Alabama Political Reporter published an article titled "Legal Schnauzer blogger finally has a legal champion." From the article, by Bill Britt:

Since July 2013, Roger Shuler has suffered one legal defeat after another, over reports he published on Legal Schnauzer concerning Liberty Duke, Jessica Medeiros Garrison, Attorney General Luther Strange and Rob Riley, son of former Gov. Bob Riley.

During all of his legal troubles, Shuler refused legal council (sic), and according to a report in The New York Times, maintained “self-defeating posturing.” (Note: This is off target on a couple of fronts. I never refused legal counsel; I always was open to, and would have welcomed, tough, smart, honest, affordable legal help. But no such lawyer appeared to meet me at the Shelby County Jail. As for the "self-defeating posturing" business, that characterization came from a right-wing California lawyer/blogger named Ken White (Popehat blog) who knew nothing about me and very little about my case. The guy presented zero evidence to support his claim.)

Since our legal travails started 16 years ago, Carol and I have hired at least five lawyers. (I might be forgetting someone.) Obviously, I don't "refuse counsel." I do tend to part ways with lawyers once they've made it clear they aren't going to do what they've said they would do. That gets a bit aggravating, especially when you've paid one lawyer roughly $12,000 and another $4,500. I have this strange tendency to get peeved when I pay that kind of money and get nothing for it -- especially in cases where the facts and law clearly are on my side. That doesn't even count the dozens of lawyers we've communicated with, or met with, and decided we wanted no part of working with them. A classic line from one such lawyer: "I'm not going to look down any rabbit holes!" Translation: "I have no intention of doing serious discovery to help prove your case -- but oh, I will require $5,000 up front for you to retain my 'services.' And that's just for starters." Gee, can't imagine why we found that unappetizing.

Anyway, here is more from the Britt article:

In an up-coming May hearing, [Shuler] will be represented by Davy Mack Hay, who said he will seek the justice that Shuler has been denied under the First Amendment. . . .

Hay, who has known Shuler for a number of years, recently filed a Motion To Alter, Amend, or Vacate the recent $3.5 million default judgment received by Garrison, for what her attorney called “cyber-bullying of the worst order.” (Note: This isn't accurate either. Hay and I never really knew each other. We talked on the phone a time or two a few months before he became my lawyer. And to this day, I haven't met him in person. We certainly did not know each other for a number of years.)

While it appears that Hay will be fighting the default judgment on grounds that his client was not properly informed of the hearing, it is about a much bigger issue, he says.

At issue is " . . . core constitutional tenets of journalistic protections associated with a ‘free press,’ which allows the unmitigated flow of news and information, void of Orwellian governmental intrusion,” writes Hays, in his motion.

More high-cotton rhetoric was present in an al.com article titled "Blogger Roger Shuler fighting $3.5 million judgment." From the article, by Kent Faulk:

Shuler, who operates the website Legal Schnauzer, on Thursday afternoon, filed a motion through his attorney asking Jefferson County Circuit Judge Donald Blankenship to vacate his April 13 default judgment against Shuler for $1.5 million in compensatory and $2 million in punitive damages.

Shuler also asks the judge to grant him leave to file an amended answer and counterclaim, and enter a new scheduling order sufficient to allow time for discovery in the case.

Notice key information in the final paragraph. Hay and I had discussed the possibility of filing a counterclaim and seeking discovery, and he agreed to take that approach. In other words, it was not just about overcoming the groundless default judgment; it was about going on the offensive, seeking discovery that would show Garrison knowingly filed a bogus lawsuit against me. I wanted Garrison held accountable for engaging in such fraudulent behavior, and Hay agreed that was the right approach. Here's more from the Faulk article:

Shuler filed an initial response denying Garrison's claims but failed or refused to sit for a scheduled deposition and did not attend a hearing that resulted in the default judgment.

Prattville attorney Davy Hay, who entered an appearance in the case on April 18 on behalf of Shuler, stated in Thursday's motion that the court had issued an order in the case May 9, 2014 changing Shuler's address from the Shelby County Jail to an address in north Shelby County.

"However, the aforementioned address was no longer the defendant's (Shuler's) residence by virtue of a recent foreclosure. Therefore, he did not receive notice of this court's scheduling order or any subsequent documents filed in the case," according to the motion.

Hay states in the motion that Garrison failed to ascertain Shuler's whereabouts and provide proper notice regarding hearings or filings in compliance with his due process rights, especially considering Shuler was representing himself at the time.

"Now that defendant (Shuler) is represented by counsel, he understands he had a duty to notify the clerk of court of any address changes, however, several circumstances prevented him from doing so," according to Hay's motion.

Hay is mostly on target here. As a procedural matter, I should have notified the court of our new address -- and I would have if our lives had not been turned upside down via the foreclosure; in fact, for quite some time, we did not know where our address was going to be. As a matter of law, however, we have shown that Garrison had an obligation to make sure I had at least three days notice of her application for default and a hearing on the issue. (See Abernathy v. Green Tree Servicing (Ala. Civ. App., 2010).

Garrison did not fulfill that obligation, meaning her $3.5-million judgment is void and can be attacked as such at any point. In short, the judgment is a nullity, having zero legal foundation. Here is more from the Faulk article, focusing on matters my wife, Carol, and I were struggling with at the time of the default judgment:

According to the motion those circumstances were:

* "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."

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.

This is good stuff from Hay. The four circumstances listed are all accurate; in fact, they pretty much are matters of public record. Garrison's lawsuit, in fact, was nothing but an effort to bully me into silence. And there is little doubt Garrison is a public figure, but that standard was not used in her default judgment. That means the splashy $3.5-million figure is based on a flawed interpretation of the law.

Where does Hay go off the tracks? Well, note his reference to "exhaustive discovery," along with his earlier reference to our intention to file a counterclaim. Was Hay serious about that? Doesn't look like it. He bailed out of the case before doing any discovery.

After the hearing with Baxley -- but several weeks before Blankenship issued his order -- Hay told me Garrison had offered to accept a $1 payment from me if I would agree to remove posts about her extramarital affair with Attorney General Luther Strange. There were a couple of problems with that: One, I never saw such an offer in writing; two, I wasn't about to accept such an offer. I told Hay from the outset that Garrison had filed a groundless defamation lawsuit, and I wanted to file a counterclaim to hold her accountable. Hay made it clear he understood that, and indicated he would conduct "exhaustive discovery" to get at the truth.

He either never had any intention of conducting such discovery -- or his mind changed the day he and Bill Baxley came together to argue the motion to vacate.

My relationship with Davy Hay did not end on a good note. I liked Davy and thought he was someone with genuine ethics, but right now, I wouldn't recommend him to work a traffic-ticket case.

With that as background, let's look at the one post that I allowed someone to talk me into censoring. It's been a little more than a year since I wrote it, but every point about the Jessica Garrison case still holds. Her $3.5-million default judgment is void, a nullity, and not worth a piece of used toilet paper:


(To be continued)