|Dr. Mark Hayden
Jefferson County Circuit Judge Michael Graffeo reissued a writ of arrest for Dr. Mark Hayden at 4:39 p.m. yesterday, at the request of William Cashion, Hayden's wealthy, octogenarian uncle.
Cashion and his attorneys from the Birmingham firm Maynard Cooper and Gale filed a motion to alter an order that suspended Hayden's previous arrest and granted his release. Cashion argues that Hayden has failed to produce certain documents related to Cashion's company, Western Steel Inc. of Bessemer, and failed to pay a $75,000 bond, per a previous order from Graffeo. (The reissued writ of arrest and the suspension of arrest/order to pay bond are embedded at the end of this post.)
Hayden, who has a private practice in Wetumpka and was arrested previously while on duty at the Bullock County Hospital emergency room, has argued in court that the documents are not in his possession, they belong to a Nevada trust, and he does not have the authority to take them.
We do not have access to the full case file, so it's difficult to determine what is driving Graffeo's effort to re-arrest a physician against whom there are no criminal charges -- demanding that he produce documents he might not be able produce.
It is clear, however, that Hayden sent an e-mail on December 28, 2016, to five individuals (including Graffeo) that he intended to pursue a federal lawsuit for civil-rights violations, plus false arrest, false imprisonment, abuse of process, and other state claims. (The e-mail appears near the end of the reissued writ of arrest, embedded below.)
Judges generally are immune from suit for actions taken in their official capacities. But if Hayden alleges and is able to prove that Graffeo engaged in a criminal conspiracy (perhaps with Cashion and his lawyers) that would point to activity outside Graffeo's official duties -- and it might remove his immune status.
Did Graffeo order Hayden's re-arrest in retaliation for the threatened lawsuit? Was Hayden wise, or not so wise, to send such an e-mail? We don't have answers to those questions -- but we have quite a few additional questions.
Most prominent among them: What law authorizes Graffeo to order Hayden to make payment of a $75,000 bond? Graffeo cites no such law in his order.
Hayden states in a reply that he has contacted several bond companies, and they have refused to pay bond on what appears to be a garnishment procedure. Hayden also argues that collection of an alleged debt by imprisonment of a contemptor violates the U.S. Fair Debt Collection Practices Act, 15 U.S. Code 1692e.
Another question: Hayden was released after a December 23 habeas corpus petition before U.S. Magistrate John England, who stated that he had issued an order on December 16, giving Sheriff Mike Hale 30 days to respond and show grounds for keeping Hayden in custody. The 30 days for Hale's response have not expired, so why is Hayden under threat of re-arrest?
It remains unclear who released Hayden the first time. Graffeo's order suspending the arrest is dated December 28, 2016. But Hayden already had been out of jail for five days by that date, making it appear that England released him,
Are the state and federal courts uncoordinated to an almost comical degree in this case? Is Graffeo openly defying a federal magistrate's order? England's order is fuzzy, but it seems to suggest that Hayden will remain free, unless Hale shows good cause by January 15, for keeping Hayden in custody. Does Graffeo have any grounds for seeking to have Hayden arrested again, in light of England's order?
If so, what is the point of a federal habeas corpus proceeding? What good does it do if a state judge can openly defy it or ignore it?
At the moment, I have more questions than answers about this long-and-winding case, one even Graffeo calls "tortured." But it appears to me the court system, and Cashion's lawyers, have caused the case to be tortured.
In the early days of the case, Judge Robert Vance Jr. made multiple rulings, favoring Maynard Cooper and Gale, when the case was not even assigned to him. Cashion's lawyers apparently were determined to have the case heard in the Birmingham division of the 10th Judicial Circuit, even though no party lives or operates a business in the division. (Perhaps they considered Vance a friendly judge?)
Hayden has been forced to fight a series of dubious rulings made under the Commercial Litigation Docket (CDL), concocted by former presiding judge Scott Vowell to send high-dollar cases to Vance, even though the CDL has been declared unconstitutional and disbanded. Hayden has been on the receiving end of unfavorable rulings by the wrong judge, in the wrong venue, under a judicial scheme that has been declared unconstitutional. Does that sound fair?
The record is clear that Mark Hayden is a law-abiding citizen who provides badly needed medical care in rural Alabama. The scarcity of doctors in rural areas across the country has been a major problem for years, one the UAB School of Medicine (and many others) have tried mightily to address. Hayden is a UAB graduate who is on the front line, trying to make rural Alabama a healthier place.
And yet, he's already been handcuffed and shackled once and hauled from his ER duties for a court case that involves no known crime -- at least not on his part. It appears Judge Graffeo is harassing Hayden because of the latter's threat of a federal lawsuit -- or maybe because Cashion has enough money to buy the "justice" he wants.
Is that what Americans want from their judges? Doesn't Graffeo have something more useful he could be doing?