Alabama physician Mark Hayden was arrested two weeks ago and remains in Jeffco Jail on dubious contempt charges in civil case involving wealthy uncle

Dr. Mark Hayden appeared
chipper on the morning of
his arrest. He now seeks
release from the Jefferson
County Jail

An Alabama physician was arrested two weeks ago, and he still is being held in the Jefferson County Jail, on contempt-of-court charges that appear dubious at best.

Dr. Mark Hayden was arrested on November 28 while working in the emergency room at Bullock County Hospital in Union Springs. Two days ago, he filed a petition for a writ of habeas corpus, seeking release based on the claim that he was arrested "on a sham warrant that did not allege a crime -- no misdemeanor, no felony." Hayden wound up in jail because of various civil claims that are multi-jurisdictional in nature. In his habeas corpus petition, Hayden states that he recently received a default judgment in Clark County, Nevada (where Las Vegas is located), establishing facts in his favor. Alabama courts apparently ignored that finding and ordered his arrest anyway.

Jefferson County Circuit Judge Michael Graffeo ordered Hayden's arrest based, in part, on a permanent injunction that prohibited Hayden from engaging in litigation on certain issues in other jurisdictions. Does Graffeo have the authority to make such a ruling, one that forbids a party from seeking justice in what appear to be proper jurisdictions, both state and federal? Graffeo does not cite any valid, on-point law in his order that justifies such an action.

Hayden's arrest grew from a lawsuit styled William B. Cashion and Western Steel Inc. v. Steven Mark Hayden, et al, CV-2012-209. The lawsuit and associated cases have crossed multiple jurisdictional lines -- from Jefferson and Elmore counties in Alabama, Clark County in Nevada, along with at least three federal claims in the Northern and Middle districts of Alabama. From an earlier post, here's how we explained issues in the Cashion case:

At the heart of the controversy is William B. Cashion, an 84-year-old businessman (he probably is 87 now) 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.

Cashion remarried in 2008, and his new wife, Frankie B. Cashion, states in court documents that her husband became obsessed with investments in Alabama gold mines that supposedly were to generate large sums of revenue. Mrs. Cashion states in an affidavit that her husband invested almost $7 million in the gold-mining project before she was able to stop him. "He is at risk of selling interest in his fraudulent gold mine to other investors which would be based on fraudulent assays. . . . , " Mrs. Cashion states. "His family, friends, and business are being harmed by his poor judgment."

In 2011, Dr. Steven Hayden used his authority as power of attorney to form the William B. Cashion Nevada Spendthrift Trust (WBC Trust), and all of Cashion's stock in WSI was transferred to the Trust. Angela Rae Hayden, Steven Hayden's wife, serves as trustee of the WBC Trust, and the Haydens live in Wetumpka, Alabama, where he practices family and emergency medicine.

Bottom line: Dr. Hayden took action as power of attorney to keep his elderly uncle from throwing more money at gold-mining projects that, according to court documents, had produced no gold. The goal, documents suggest, was to keep Cashion's losses in the $7-million neighborhood.

In 2012, Cashion filed a lawsuit in Clark County, Nevada, seeking to have the WBC Trust declared invalid, but that case was dismissed with prejudice. Cashion then filed a similar case in the Birmingham division of the Jefferson County Court, even though court documents show that none of the parties lived or operated a business in that division. Hayden and the trust argued the proper venue was Elmore County, where the alleged gold mine and related businesses were located.

Jefferson County Judge Robert Vance Jr., operating a Commercial Litigation Docket (CLD) that since has been declared unconstitutional, made a series of favorable rulings for Cashion (and his lawyers from the Birmingham firm Maynard Cooper and Gale) while the case was assigned to another judge. How can a judge make rulings, favoring a wealthy party, when the case isn't even assigned to him -- and how can those rulings stand when the CLD has been discontinued on the grounds that it is unconstitutional? Those are just two of many troubling questions raised by the various Cashion cases, which cover five jurisdictions.

For now, the most troubling questions are these: Why is Dr. Mark Hayden, who lives and operates a private practice in Wetumpka, in jail? Why was his wife, Angela Rae Hayden, arrested in October 2015 on identical grounds -- taken from her home, where she is the primary caregiver for the couple's 10-year-old autistic son?

Here is how Dr. Hayden explains his arrest in the habeas corpus petition:

They want me locked up indefinitely because I will not provide documents of the Cashion Family Trust.  

Hayden further states that the trust has been dismissed and is not even a party to the Alabama litigation. How can Hayden be ordered to produce documents from an entity that is not a party to the case in question? How can Hayden be ordered by a judge in one jurisdiction not to pursue litigation in another jurisdiction?

The answer to those questions are not clear, but Judge Graffeo seems to be on shaky ground regarding the second question.  In his Order of Contempt, Graffeo cites Ex Parte Franklin, 792 So. 2d 444 (Ala Ct Crim App, 2001) to support his claim that "courts have an inherent power to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances." (Both the Order of Contempt and Dr. Hayden's Petition for Writ of Habeas Corpus are embedded at the end of this post.)

But that directly contradicts what the Franklin court actually held. In fact, the Franklin court overturned a trial court's order to the Houston County clerk to prohibit the filing of any further petitions by Franklin. a prisoner who was seeking to prove his innocence via newly discovered evidence. From the appellate ruling in Franklin:

"Courts have an `inherent power . . . to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.' Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986). While those conditions may be `onerous,' they `cannot be so burdensome, however, as to deny a litigant meaningful access to the courts.' Cotner, 795 F.2d at 902.

You will notice that Graffeo cites the first sentence in Franklin's key finding, while ignoring the second sentence -- which appears to forbid his restrictions on Dr. Mark Hayden. Does that suggest Graffeo knowingly is operating outside the law, arresting Dr. Hayden (and his wife) with no lawful grounds for doing so?

To be sure, the Cashion litigation has followed a long and winding road, across five jurisdictions, and we do not currently have access to all of the court records. But Graffeo's reliance on Franklin clearly is off target, which suggests the permanent injunction is faulty, and Graffeo has no lawful grounds to order Dr. Hayden's arrest. It also suggests Graffeo is favoring a prominent Birmingham law firm and its wealthy client over a doctor and his wife from Elmore County.

We will continue to research the facts and law surrounding the case, and we will seek more information about Dr. Mark Hayden's status as a prisoner at the Jefferson County Jail. For now, it appears he essentially has been kidnapped for holding documents that he is entitled to hold and seeking litigation that he is entitled to seek.

Dr. Mark Hayden-Order of Contempt by Roger Shuler on Scribd

Dr. Mark Hayden-Petition for Habeas Corpus by Roger Shuler on Scribd