Monday, May 15, 2017

How can a crooked judge cheat you in federal court? Take a ride on Judge R. David Proctor's "magical mystery tour," and we'll show you exactly how it's done

Crooked federal judge David Proctor and his
Briarwood-based family
Judge R. David Proctor's unlawful dismissal of our "House Case" is like a bad three-act play; he cheats my wife, Carol, and me in the beginning, the middle, and the end of his memorandum opinion. We've already shown how Proctor cheated us in "Act 1" and "Act 3," so now let's turn our attention to "Act 2."

I probably could write a New Yorker style magazine piece of considerable length about the myriad ways Proctor screwed us in the middle section of his opinion. But we will limit our attention to four key issues -- constitutional claims, wrongful foreclosure, tortious interference, and defamation. (Proctor's opinion and our Rule 59 response to it are embedded at the end of this post.)

If you care about justice and integrity, this stuff might be hard to stomach. But we operate under the theory that the first step to cleaning up corruption is to expose it. Please keep in mind that we're talking about a judge who claims to be a devout "Christian," who attends Briarwood Presbyterian Church (PCA) and sends his kids to Briarwood Christian School, supposedly because of the fine moral training they receive there. If so, it's good they go to Briarwood because they apparently will get no moral underpinnings at home -- based on the cheat job "Judge" Proctor administered in our "House Case."

(1) Constitutional claims (First, Fourth, and Fourteenth Amendments)

Proctor rejects these claims because he finds that certain defendants -- Jessica Medeiros Garrison, Bill Baxley, Rob Riley, Liberty Duke -- are not "state actors" for purposes of claims under Sec. 1983. But the law is clear: We don't have to show such defendants are "state actors"; we have to allege that they worked in conjunction with state actors. That is simple, long-established law, and Proctor has to know it. His ruling to the contrary is a glaring sign that he is a cheater. From our Rule 59 motion:

The U.S. Supreme Court has held that private individuals who act jointly with state officials are deemed to be acting under color of state law. In Lugar v. Edmondson. 457 U.S. 922 (1982), our nation's highest court found: "We have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor" for purposes of the Fourteenth Amendment. The rule in these cases is the same as that articulated in Adickes v. S.ll. Kress and Co., supra, at 152, in the context of an equal protection deprivation: "Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not :require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents," quoting United States v. Price. 383 U.S.., at 794." As Proctor acknowledges, the Shulers allege repeatedly that defendants acted "in conjunction with state actors." Thus, the Shulers have alleged facts that defendants were state actors and liable for suit under Section 1983. This court's erroneous finding must be reversed.

Is there any doubt that Proctor ruled contrary to law on this issue? None, zero. He rules contrary to three U.S. Supreme Court cases, so it's hard for a corrupt judge to get more wretched than that.

(2) Wrongful foreclosure

Proctor rejects this claim because he finds it can only be asserted against the "mortgagee" (Chase Mortgage, in this case). But -- surprise, surprise -- that's not what Alabama law says. We address that in the Rule 59 motion:

In In re Sharpe, 391 B.R. 117 (Bankr., N.D.Ala,, 2008), the federal bankruptcy court proposed the following as factors to consider as elements of a wrongful foreclosure claim under Alabama law: whether (I) the actions of the mortgagee were either outside the boundaries of the foreclosure or taken for some purpose other than to secure the debt owed by the mortgagor; (2) the actions of the mortgagee were for some ulterior motive; (3) the power of sale was perverted or used for the mortgagee's or someone else's purpose; or (4) the mortgagee had an ill motive. 391 B.R, at 152 -153. Under Alabama law, the ulterior motive can apply to the mortgagee or "someone else," and the Shulers have properly cited multiple parties who had an ulterior purpose. This is clear error and must be reversed.

As you can see from the highlighted section above, the ulterior motive does not have to rest just with the mortgagee (Chase Mortgage). It can rest with "someone else," and that's a pretty broad term, which could apply to any number of defendants in our "House Case."

Is there any doubt Proctor ruled contrary to law on this issue? None, zero.

(3) Tortious interference

Proctor rejects this claim, stating we had "pled no facts which in any way suggest that any Defendant except Defendant Chase instituted the foreclosure action against them, or was responsible for the decision to foreclose on their home."

That, however, is not the standard, as we show in our Rule 59 motion:

The Shulers must only allege that the defendants interfered with their business relationship with Chase, and the complaint does just that - especially when viewed under the proper standard of review and the requirements of Watts (which holds that the complaint must be viewed in a light most favorable to the party not moving for dismissal -- and that would be Carol and me). The court admits the Shulers have pled facts sufficient to suggest lawsuits brought by Defendants Riley, Duke, and Garrison affected their ability to pay the mortgage - and this confirms tortious interference because the Shulers' relationship with Chase was based on payment of a mortgage. Finally, Proctor violates the holdings of Watts, assuming Riley, Duke, and Garrison did not intentionally interfere with the Shulers' business relationship with Chase. But no one disputes that Riley, Duke, and Garrison intentionally filed lawsuits, and the Shulers' have alleged that the lawsuits were groundless and interfered with the key component oftheir relationship with Chase ­paying the mortgage. When viewed in a light most favorable to the Shulers, and the court is required to view facts in such light, it points to intentional interference.

This is simple stuff: We had a contract with Chase that required us to pay the mortgage, and individuals who caused me to be unlawfully incarcerated for five months, interfered with that business relationship by making it impossible for us to hold up our end of the deal.

Is there any doubt Proctor ruled contrary to law on this issue? None, zero.

(4) Defamation

This might represent Proctor's nuttiest ruling of all. Proctor rejects the defamation claim largely on a finding that GOP operative Jessica Medeiros Garrison statements in an article at the women's fashion magazine Marie Claire were privileged as part of civil judicial proceedings. In essence, that means the statements were exempt from defamation law because they were drawn from official court documents. But there is no evidence that Garrison or Marie Claire writer Liz Welch consulted any legal documents.

In fact, the article is listed as "by Jessica Garrison, as told to Liz Welch." That plainly states Garrison was the author of the article, with Welch serving as more or less a stenographer. A case of truly privileged journalism would involve a third-party reporter, who attended a trial, checked court documents, and attempted to write a somewhat objective article.

But the Marie Claire article has none of that. It was written by a party to the case and shows no sign that it involved objective journalism at all. Jessica Garrison made false statements about me in court documents, and again, during testimony in her default-judgment hearing. And Proctor correctly (gasp!) finds those statements to be privileged as part of court proceedings. Any third-party reporter would be free to write about them, without being subject to a defamation finding.

But a third-party reporter did not write the Marie Claire article; Jessica Garrison wrote it -- the byline clearly states as much. Garrison essentially is trying to get away with defaming me twice -- once in court proceedings (which, technically, is not defamation) and once in the Marie Claire article (which is not privileged and absolutely is defamation.)

Translation: It was incredibly dumb for Garrison to write the article, and it was even dumber for Marie Claire to publish it. Here's how we addressed some of these issues in the Rule 59 motion:

Regarding Garrison's false statement that Roger Shuler reported Luther Strange was the biological father of her child, Proctor cites an Alabama statutory privilege that protects "fair and impartial" reports of civil judicial proceedings. Proctor concludes, apparently out of thin air, that the Marie Claire article (and those largely republished from it at and Yellowhammer News) is a fair and impartial report of court proceedings. This would be laughable ift he matter were not so serious. First, the Marie Claire article is listed as "by Jessica Garrison." In other words, it is written by one party to a civil case - the plaintiff, the one who brought it - without input from the other party. The court considers that "fair and impartial"? The first words of the article -- by Jessica Garrison -- make clear it is not impartial. Second, the byline says the story is "by Jessica Garrison, as told to Liz Welch." It clearly states the story is based on Jessica Garrison's words, as imparted to Liz Welch, with no reference to any court filings. The article is all about Jessica Garrison's words and emotions, and that's why it was published in a women's fashion magazine. The notion that Marie Claire runs articles about court proceedings is absurd. The article is by Garrison, and thus cannot seriously be called impartial or fair.

There you have it -- four clear-cut examples of how a federal judge can cheat you at the trial-court level. And that has serious repercussions for the public. One, it denies justice at the time and place where it should be achieved. And it forces the cheated party to file for an appeal, which can be expensive and time consuming -- and as we have shown in numerous post, it might not result in justice either. Appellate courts have a disturbing tendency to side with their trial-court brethren, no matter how wrong they are. It's easy to do this by use of "Do Not Publish" opinions.

Our "House Case" currently is under appeal to the U.S. Eleventh Circuit, based in Atlanta. We will keep you posted on that process, and we will address the fraudulent use of "Do Not Publish" opinions in upcoming posts.

(To be continued)


Anonymous said...

If I were Proctor, I would be concerned about where my connections to Jeff Sessions might lead me.

Anonymous said...

Why the family photo?

legalschnauzer said...

@10:16 --

Why not?

Anonymous said...

There is no excuse for Proctor to get the "state actor" issue wrong. Lugar v. Edmondson has been around a long time, and Proctor has to know the law on that. It's easy stuff.

Anonymous said...

10:16 here . . .

It just seems a little heavy handed to me.

legalschnauzer said...

@10:16 --

Proctor is a public figure, paid with taxpayer dollars. No one is forcing him to be a judge, so he should be able to handle a family photo that he placed on the Web. If he can't, he can always step down and get a real job. Plus, his family is part of the story. They have benefited from his sleazy ties to Jeff Sessions. I've written about that already, and have more posts coming on the subject.

Anonymous said...

Has a judge ever ruled correctly in any of your cases?

legalschnauzer said...

@11:46 --

Hmmm . . . that's a tough one. There have been a few interlocutory rulings along the way that have been correct. But in terms of final judgments, appellate rulings, dispositive orders, etc. . . . I don't think there have been any.

I fairly regularly get comments like "you've never won a case . . . blah, blah," and that is not correct. My brothers' attempt to have Carol and me declared incapacitated was dismissed on their own motion. It wasn't a judicial ruling, as such, but we won that case, and they were stupid to bring it.

Under the law, I won the Shelby Co. case against the criminal/neighbor. If that had been decided correctly, none of the other cases ever would have happened -- and this blog never would have started.

We've had judges call us "frequent filers" and "notoriously litigious." Well, that one case in Shelby Co. led to all of the other cases. It's a matter of public record that the case was decided contrary to law, and the same has happened with our subsequent cases in federal and state court.

There is a big difference between "winning" a case based on a judge's ruling and winning the case based on facts and law. Exploring that difference -- not just in my cases, but in many cases that do not involve me -- is the whole point of this blog.

vintagecarole said...

Have ya'all been watching Youtube, The V...Voice of Alabama Politics? Some snide jokes re Riley people / Ivey etc.

Anonymous said...

One of Proctor's sons went from Briarwood to the U.S. Military Academy at West Point. Jeff Sessions probably played a role in him gaining admittance. Did Proctor's kid get in on merits, or was it a favor from Jeff Sessions?

legalschnauzer said...

@12:45 --

You are correct. I have a post coming on that subject before too long. The son, at last report, is stationed at Fort Bliss, near El Paso, TX.

Anonymous said...

I've read the Marie Claire article multiple times and went back to read it again this morning after seeing this post. There is not a single word in it that indicates it was based on court documents. And as you note, it was not the work of a relatively objective third-party reporter, trying to make a semi-fair presentation. Jessica Garrison wrote it. It's one of the most outrageous slash and burn defamation cases I've ever seen.

legalschnauzer said...

@1:18 --

Thanks for your insights. You probably won't be surprised to learn that I agree with you. I long have wondered how Jessica Garrison got hooked up with Marie Claire, a Hearst Corp. entity. Did she make that connection on her own, or did someone with ties to Hearst, make that happen?

Anonymous said...

There is no point having courts if judges aren't going to apply the law. I say dynamite all the courthouses and build senior housing, early childhood education centers, job training centers, public schools . . . on and on. Let people settle their disputes with 2nd Amendment remedies or whatever seems appropriate. Take all the unemployed lawyers and turn them into fry cooks at fast food restaurants. Finally, they will be serving the public, in some small way.

legalschnauzer said...

@4:37 --

Hah! I like the way you think. Your comment is funny, but it's also serious. We are wasting millions upon millions of dollars on a "justice" system that enriches a few and provides justice for hardly anyone. We might also want to close up all the jails and prisons and turn them into rec centers or health clinics or something that is useful to the public.

I would rather take my chances with prisoners running free than with corrupt judges and lawyers holding sway over our lives.

Heck, we could use the savings to attract top-notch teachers and pay them the salaries they deserve. Same with nursing, where we have a huge shortage of workers.

Anonymous said...

The only one in that picture I would trust is the dog.