Tuesday, November 29, 2016

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)


Anonymous said...

How much have you spent on lawyers, total?

legalschnauzer said...

It's hard to answer that question, @8:59. In terms of direct legal fees and associated costs, it's probably around $20,000 to $30,000.

In terms of all the time and effort I've had to put in to trying to correct their mistakes and malfeasance -- if I'm paid $100/hour for legal work, which is way cheaper than any lawyer -- it runs into the hundreds of thousands of dollars. I would guess $300,000 to $500,000, and that's conservative. That includes filing fees, publishing of appellate documents, copying expenses, and much more.

Anonymous said...

Hah! That's a funny line about "I won't look down an rabbit holes."

Would you mind sharing what lawyer told you that?

legalschnauzer said...

Not at all. It was Adam Morel, a Birmingham employment lawyer.

Think he was recommended to us by a lawyer named Fields (Doug?)

To borrow an old phrase, I wouldn't piss on either one of them if they were on fire.

Just sorry ass human beings. In so many words, Morel was saying, "I want $5,000, but I'm not going to do any work -- or hardly any work."

Then, once they've got your money, there isn't much you can do to make them do any work -- other than to pay them more money.

It's a sickening racket.

We also paid a visit to Garve Ivey in Jasper (that shows you how desperate we were to find a lawyer). I still need weekly industrial-strength showers to try to get over the experience of being in Garve Ivey's presence. The shoes I wore that day still have slime on them.

Crooked Mitch said...

Nice one, Roger. Mr. Hay cannot defend himself from what I am sure are baseless claims from you because of attorney-client privilege. What a brave fellow you are, Roger.

"Self-defeating posturing"? Yes, I’ve been reading your blog for many months now, and that’s an extremely accurate description of your behavior.

"I'm not going to look down any rabbit holes”? You misinterpret this, Roger. He’s talking about your crazy, paranoid theories, which are also quite evident to readers of your blog.

Sadly, you've shown you don’t have the intellectual capacity to understand the law and legal processes. You certainly don’t have the temperament or ethics to be a real journalist, let alone deal with even the simplest legal matters.

After this sort of hatchet job, why on earth would any lawyer represent you? Rather than move on and focus on the merits of an appeal, you have to trash the reputation of someone who helped you and then quit when you behaved in a clearly “self-defeating” way.

You’re a terrible client, Roger, with the impulse control of a toddler. Grow the hell up.

legalschnauzer said...

A few responses for Crooked Mitch:

1. I don't know that Mr. Hay is blocked from defending himself because of attorney-client privilege. If so, I would be happy to waive the privilege. Mr. Hay would have a problem defending himself because he acted exactly as I stated.

2. Re: the Morel comment, I was there and you weren't. He gave no indication he had even read my blog. He simply wanted $5,000 while admitting he was going to do nothing but maybe shuffle a few papers.

3. Here's a question for you? Why would I want to be represented by a lawyer who has such a low opinion of his/her own work that he would compare it to that from Davy Hay? If a lawyer thinks Davy Hay acted properly in my case, I want no part of them.

4. I'll offer you your own advice. Why don't you grow the hell up, grow a pair, and contact me directly via phone or e-mail. I would be happy to talk to someone with a real name, but you are too big a coward to engage me -- and the truth. Quit acting like a toddler, for a change, and actually confront me directly. You are just a worthless puss, with the spine of jellyfish.

legalschnauzer said...

Memo to "Sarah"

Until you show the guts to contact me directly, under your own name, I think you wear the "coward" tag. And it's a perfect fit, as is the "liar" tag.

Anonymous said...

Garrison actually offered to drop the $3.5-million judgment if you would pay $1 million and remove the posts about Big Lutha?

legalschnauzer said...

That's what Hay told me, although I never saw any physical signs of such a proposal, as in something in writing.

Anonymous said...

You said one dollar. @10;23 said one million dollars.

S C said...

I wonder if JMG wishes she didn't pursue the suit against you in the first place....If she hadn't, the 'rumors' and reports about her would have eventually died down...but because of everything that happened post-judgment...the whole thing has gained more traction and attention - and seediness, too (thrown your way) i.e. foreclosure and lobbyist getting money from it

Anonymous said...

I think I would have taken that deal.

legalschnauzer said...

You certainly would be free to take that approach, @1:07. But I would suggest you probably aren't cut out for work in journalism. When you've done the legwork on a story, and you know you've got it right, you aren't going to be pushed around by the sorry likes of Jessica Garrison and Luther Strange.

Anonymous said...

If Garrison offered to give up a $3.5 million award for $1, that tells me she knows her legal case wasn't worth much. This makes me think more than ever that she and Lutha had an affair.

Anonymous said...

If Garrison offered to give up a $3.5 million award for $1, that tells me she really didn't want to answer interrogatories or be deposed. This makes me think more than ever that she had something to hide.

The alleged affair with Lutha is only one of the numerous possibilities which might explain the settlement that appears to pay off where a dollar saves you the quotient of $3.5 million divided by the plaintiff's self evaluated chances of legal success.

legalschnauzer said...

@11:49 -- Yes, I think that was a typo on @10:23's part. I must admit I didn't catch it the first time around, so glad you pointed it out. Unfortunately, I can't edit comments, so it will have to stay, but I hope folks see your comment.

Just to repeat and be clear: Garrison, according to Davy Hay, offered to drop the $3.5-million judgment for $1 and removal of supposedly defamatory posts. (Those posts, BTW, never have been proven false and defamatory, as a matter of law, at trial--same as in the Riley case. Also, Garrison's judgment is null and void, as a matter of law, so I would have been paying her $1 in exchange for something that is worthless.

legalschnauzer said...

I think you are right on target, @1:26. I think there was no way Garrison or Luther Strange was going to go through discovery. I think that's a big reason our house went into a wrongful foreclosure, and we were encouraged/forced to move out of state. Who benefited from that? Garrison and Strange, because I was not able to defend myself, and they avoided discovery.

Anonymous said...

What was wrongful about the foreclosure? Were you not in default under the mortgage for failure to make payments when due?

Anonymous said...

"Garrison's judgment is null and void, as a matter of law" No, it isn't, because the matter has been settled in court.

Roger, you're dumber than a leg of lamb.

Crooked Mitch said...

"Confront me directly"!!!

Are you threatening me with violence, Roger? That seems uncalled for.

legalschnauzer said...

Crooked Mitch --

Try actually reading my comment. I challenged you to contact me directly via phone or e-mail, under your real name. I said I would be happy to talk with you. You interpret that as a threat of violence? Sheesh.

legalschnauzer said...

@3:53 -- Obviously you haven't read the post, which cites the law showing that the judgment is void as a matter of law. Reading the post probably would not help in your case, because I doubt you would understand it.

legalschnauzer said...

@3:36 -- Research the subject yourself, bub. I've posted on here multiple times about Alabama law on wrongful foreclosure. If you can't find those posts and read them, that's your problem.

Anonymous said...

That was a very good settlement offer, and you are an idiot for not accepting it. Your attorney gave you his best advice and you refused it. No wonder he withdrew.

S C said...

dumber than a leg of lamb? who says that? doesn't sound very down-home-alabama

Anonymous said...

I don't blame you for being pissed with Davy Hay. It's obvious in published articles that he told you he would pursue a counterclaim and conduct "exhaustive discovery." If he didn't do that, you have every right to be pissed -- I would be pissed, too. You might also have grounds for a bar complaint.

legalschnauzer said...

I made it clear up front I wasn't just interested in getting the default judgment vacated, I wanted to conduct discovery and hold Garrison accountable for filing a lawsuit that was baseless. Hay agreed to that, and then comes back with this supposed $1/take down the posts offer that he considered a great outcome. That was just glorified extortion, which aptly describes a lot of lawsuits, I suspect.

Hay talked big about protecting the First Amendment and then wants to accept this extortion scheme, which would force me to remove post that never had, and never have, been found defamatory.

In essence, Hay and I agreed on how to best pursue the case, and then he turned around and ignored our agreement. And people wonder why lawyers are hated so much.

To make it worse, he got all kinds of free publicity because of my case, probably unlike anything his law practice ever has seen, and then he stabs me in the back. Just a sorry sack of excrement.

legalschnauzer said...

@7:28 -- Is there something about the word "void" that you don't understand?

Anonymous said...

The anticipated, post appearance of Senator Jeff Sessions before the Senate Judiciary Committee's hearing is surely destined to have a trickling down affect into the State of Alabama's Republican official's long established safe-houses; as to liken to a domino styled effect, huh!

e.a.f. said...

although people pay lawyers to represent them frequently lawyers have other agendas and those agendas are about themselves and how they can move up the food chain. lawyers are one of those professions where their professional association are frequently more interested in preserving the members' interests, not those of the public they are meant to serve.

the next time some one tries to talk you into something or out of something, just trust your gut. even when you pay a lawyer, their interests and yours are frequently not the same.

All those lawyer jokes which started popping up in the late 1980s didn't just spring out of a vacumn. I do recall one: Why don't sharks eat lawyers? Professional courtesy. In my opinion, not much has changed.

Unknown said...

Hays meets Baxley( the fixer)!!!!! Obvious corruption!!!!!!

Anonymous said...

There's presumably more to it than just cash! Relatives who are abandoned to rot in their modest, innate boxes feel disdain toward the ones who escaped. They are in chapel a couple times each week listening to liberals slandered from the platform. I was a yellow dog Dem who never did the switch when Reagan came to fruition in the south. My family endured us with grins yet when Obama came in, amazing.

Anonymous said...

Your judgement isn't void, it's in force, and your time to challenge it is over.
You lost.

You had an obligation to tell the court where you were, as you had been served. The judge found your excuse insufficient to cut you any slack.

You were served when the papers went to the address that YOU had on file with the court.
Your error, not the plaintiffs. They had no duty to track you down to a new address that you refused to give the court.

And I use the word "refused" deliberately. As a frequent filer, you know your obligations and the obligations of a served defendant to keep up with court filings and to keep an address where other papers can be served on file with the court.

You could have asked your mom or brother to accept your mail, gotten a po box, designated a general delivery drop - but you just kept a wrong address with the court.
I think you did it on purpose, frankly, hoping you would not get papers and that you would be excused for your failure.

Well, you weren't excused. The plaintiff met her burden, and made a settlement offer to your attorney, that was a screaming deal for you. There is no attorney on earth who would not have advised you to take it, because your case was so weak on the merits and there was next to no possibility of anything better.

His bluster about discovery was only to get you a deal, you idiot.

He got you one, and you blew him off.

YOu are the author of your own misfortunes. Your judgement is not void or voidable.
You are judgement proof, so you've got that going for you, which is nice.

Soon you will end up in a mental ward or jail again, because you just can't seem to help yourself.

BTW, you are still promoting that pic of the amerasian kid as Pryor. You already know its not him in the picture. You've seen his high school and college photos.
NO RESEMBLENCE WHATSOEVER, not even general things like coloring. You are an idiot. You are the author of your own misfortunes.

legalschnauzer said...

@12:30 -- I generally don't publish comments as stupid as yours. But sometimes I like to let readers see just how desperate some people are to avoid facts and the law.

They key thing I will point out for readers: This commenter makes no citations to law, zero. I delete numerous similar posts every day, especially since the Trumpistas are worried about what I'm going to be publishing soon about Pryor and Sessions. They can't point to facts and law because those are not on their side.

This person has no clue what she/he is talking about, but I thought the rambling nonsense might be informative or semi-entertaining for some. This probably will be the last such comment to be published because I am setting them up to automatically go to spam, so I won't even have to see them.

I should note that I've provided my direct contact info -- phone/e-mail, etc. -- so these people can communicate with me under their own names. But they never do that because they are cowards and they lack the intellectual and ethical capacity to address issues head-on. They need a cover because they know they are not morally and mentally equipped to deal with thinking people.

This comment, however, seems to reflect the mindset of those who put Donald Trump in office -- along with Russian hackers. In that sense, it's important to see firsthand just how demented these people are. Hopefully, this is somewhat of a public service, but this junk is going directly to spam soon, and that's where it belongs.

Anonymous said...

12:30 is an idiot. Anyone with the ability to read can see the law put the burden on Garrison to make sure you had notice of the default application. The law also says failure to give notice makes the judgment void, and it can be attacked as void at any time.

What's that old legal saying, "If the law is on your side, pound on the law; if the facts are on your side, pound on the facts; if neither is on your side, pound on the table."

12:30 is pounding on the table because that's all she has. (I say "she" because this commenter sounds like a she to me. Not sure why.) I agree that spam is the place for this bulls--t.

legalschnauzer said...

I should note that my email address was on every document I provided to the court. At all times, Garrison and Baxley had a way to contact me, and they never did. They didn't want to contact me, and I will provide proof of that in an upcoming post.