Wednesday, May 31, 2017

Will the U.S. 11th Circuit become a place of integrity and light, now that Clinton and Obama appointees hold a heavy presence on the Atlanta-based court?

U.S. Eleventh Circuit Court of Appeals in Atlanta
"Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

-- Monroe H. Freedman, founder of legal ethics

Eight of the 11 filled seats on the U.S. Eleventh Circuit Court of Appeals now are occupied by Bill Clinton or Barack Obama appointees (with one seat vacant, to be filled by Donald Trump if he isn't indicted first). Does that mean the Atlanta-based court slowly is turning from a judicial sewer, which it has been for decades, to a place where the rule of law might actually make a comeback?

That should be a compelling question for anyone living in Alabama, Georgia, or Florida -- the three states that comprise the Eleventh Circuit. It is a profoundly important question in the Schnauzer household because we have two pending appeals before the Eleventh Circuit, and in theory, that should have us feeling pretty confident that justice will be done. After all, judges who sit on circuit courts are just one rung below the U.S. Supreme Court, so they should be more capable -- and have more integrity -- than district judges who act at the trial-court level, right?

In reality, the Eleventh Circuit consistently has churned out the kind of opinions that disgusted the late Monroe H. Freedman, who was a law professor at Hofstra University and is considered the founder of legal ethics as an academic field. Much of the Eleventh Circuit's chicanery has been shrouded in "Do No Publish" opinions, which do not become part of the official "reporter-based" body of law and can be used to hide the court's dishonest work.

But even in high-profile cases that produce published opinions, the Eleventh Circuit has proven adept at generating opinions that violate its own precedent.  A classic example is the case of former Alabama governor Don Siegelman. We presented the gory details in a five-part series titled "The Cheating of Don Siegelman," then we boiled it down to a one-part, easy-to-digest summary of the Eleventh Circuit's cheat job.

How does this happen? Well, for one, ample evidence suggests the court during the George W. Bush years was tainted by the unlawful influence of GOP strategist Karl Rove, the U.S. Chamber of Commerce, and other corporate interests. It has been reported in multiple news outlets that Birmingham-based Bill Pryor, he of the gay-porn photos, serves as a fixer on the Eleventh Circuit, at the direction of Rove and other moneyed interests.

On top of that, Siegelman had the misfortune of "drawing" a three-judge panel that consisted of all Republican appointees -- Gerald Bard Tjoflat, J.L. Edmondson, and James C. Hill. I put the word "drawing" in quotation marks because this panel likely was not the result of random selection, as required by law; political forces almost certainly made sure the Siegelman appeal landed before three GOP-appointed con artists.

I know from first-hand experience that Tjoflat and Edmondson are crooks. They were on the panel for the appeal of my unlawful termination at UAB. The Eleventh Circuit upheld the trial court's finding of summary judgment for the defendants, even though no discovery had been conducted in the case. That blatantly violated precedent from Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988), which held that summary judgment cannot even be considered (much less granted) until discovery has been completed.

Tjoflat and Edmondson hid their dirty work by issuing a "Do Not Publish" opinion, which means their bogus ruling, conflicting with black-letter law, will not be part of the official recorded body of law.

We know the Eleventh Circuit has an ugly past. But is it possible that brighter days are ahead? Well, Edmondson has gone on senior status, and Hill died earlier this year. We can hope that Tjoflat will retire, be indicted, or die in the not-too-distant future. Of the 11 judges on active status, five are Obama appointees and three were appointed by Clinton.

Does that mean the Eleventh Circuit is headed into an era of light and integrity? Not necessarily. For one, we know that Democrats can be just as crooked on the bench as Republicans. (See Vance, Robert Jr.) Two, five of the seven judges on senior status are Republican appointees, and they have mysterious ways of turning up on cases, even though they technically are retired. (In the real world or work, retiring usually means you are gone; in the judicial world, you can be retired and still come back -- sort of like a herpes sore.)

As for our pending appeals, let's focus on "The Jail Case," which involves my unlawful incarceration in Shelby County, Alabama, and was the first of our two appeals to be filed. (The other we call "The House Case" and involves the unlawful foreclosure on our home of 25 years in Birmingham.)

The Jail Case appeal never should have been necessary. The law is clear that the court is required to issue summonses and execute service for in forma pauperis (indigent) litigants, a status for which judges in both cases have found we qualify.

The law is a matter of simple common sense. If your resources are so limited that you can't afford to pay a filing fee (usually around $500) and can pay only a partial fee, then it figures you can't afford to pay for service, which can get quite expensive in a case involving a dozen or more defendants, such as ours.

As a matter of law, the Eleventh Circuit cannot rule against us. Our system of "justice" is built on precedent, which is supposed to guarantee consistency and clarity in application of the law. And the precedent in our case is clear: Courts, specifically clerks' offices, are required to execute service for indigent litigants. That already has been done in our other case, "The House Case," so it's not only a matter of getting it right, it's a matter of consistency.

If the Eleventh Circuit ruled contrary to precedent in our case, it would not just be an act of fundamental dishonesty toward us. It also would screw up the case law, ensuring that other litigants facing similar issues down the road will get the shaft also.

But that's where "Do Not Publish" opinions play their nasty role. They are not included in official reporters, so they do not wreak havoc with precedential law. And I'm not the only one who has noted that they often are used for perverse reasons. The late Monroe H. Freedman, who was professor and dean at the Hofstra University School of Law, noticed it almost 30 years ago, long before I ever dreamed of having legal problems.

Consider Freedman's words, from a 1989 speech, reproduced at the beginning of this post. They make me want to stand and shout "Bravo!" I, too, have had enough of bogus judicial opinions that abuse no-publication rules. Notice Freedman's use of the term "cover up." That term is apt, and it points to criminal intent, as in obstruction of justice, maybe more.

Will the heavy presence of Democratic appointees now on the Eleventh Circuit signal an end to the kinds of bogus opinions that infuriated Prof. Freedman? Perhaps the outcomes of our two appeals will provide a clue.

Like Prof. Freedman, I'm fed up with such judicial chicanery, and if we get another such opinion in our pending case before the Eleventh Circuit, I'm going to do everything in my power to make sure the responsible judges are unmasked and held accountable.


Anonymous said...

Not . . . holding . . . my . . . breath.

Anonymous said...

This is one area where those who think there is no real difference between GOP and Dems may be right.

Anonymous said...

Based on the law of averages, I would say you should have at least two Dems on your three-judge panel, Schnauzer. Of course, when has the law (of averages or any other kind) ever applied in the 11th Circuit?

Anonymous said...

Odd that two of the judges from the Siegelman case also would wind up on your case, given that you are the journalist who has written critically about judicial handling of the case.

legalschnauzer said...

@9:42 --

Yes, it is odd. And in my view, it's probably not coincidence.

Anonymous said...

I had no idea Obama and Clinton appointees had become a majority on the 11th Circuit. Thanks for reporting on this. A sign of hope?

legalschnauzer said...

@9:49 --

I don't know if it's a sign of hope or not. I've had experience in previous cases with the Obama and Clinton appointees, and it made no difference whatsoever. Many judges are more devoted to protecting the judiciary than they are to serving the rule of law, the constitution, justice or anything else high-minded.

Anonymous said...

LS --

This is a big reason the Bernie Sanders campaign took off. Liberals and progressives are tired of the Clintons and Obama appointing DINOs. Why on earth did Obama ever appoint Jim Comey?

legalschnauzer said...

@10:16 --

I supported HRC for president, but I understand the concerns of Bernie supporters. In Alabama, Obama gave us horrible appointees like Abdul Kallon and George Beck and Joyce White Vance -- and he apparently relied heavily on advice from Artur Davis and Doug Jones. Davis and Jones are two of the biggest losers and phonies in the history of American politics.

Anonymous said...

Wouldn't put a lot of hope into things getting better anytime soon. Money is what calls the shots. The more you have the more your case can be made to fit into current law. Until money is removed from the election process it will stay the same. The only way to survive is to stay below the radar and hope nothing happens to pull you into the system.

Anonymous said...

Agree with @10:34. I don't think the issue is so much, "Which judges, appointed by presidents of which party, sit on the court?" The question is, "Who controls the judges who sit on the court?" Democrats are just as likely as Republicans to be swayed by money, powerful interests, and considerations that have nothing to do with facts or law of the case.

Anonymous said...

Interesting post, LS, and a number of interesting comments. I take from this that legal scholars -- high-minded people, of intellectual depth, who truly believe in the rule of law and pay it maximum respect -- are a dying breed. They have been replaced by selfish opportunists, who are out to serve their own interests.

It's been said that true political statesmen are a thing of the past. I think the same can be said for legal scholars.

Anonymous said...

"In the real world or work, retiring usually means you are gone; in the judicial world, you can be retired and still come back -- sort of like a herpes sore."

Hah, hah! Great line, Schnauzer. Made me laugh so hard I think I peed on myself a little bit.

Anonymous said...

Today's post, and the one from yesterday, are Legal Schnauzer at its finest. Unlike some folks, I don't get worked up about your Ashley Madison posts -- although I must admit, I always read them. I don't, however, think they are your best work. But these two posts are excellent -- they analyze important subjects in a clear-headed way, touching on issues that affect Alabama and the entire country. Plus, I get a kick out of references to your personal travails, family history, etc. I can identify with a lot of that. I didn't realize you come from hillbilly stock. You don't write like a hillbilly.

Both of these posts made me think and made me laugh. Much appreciated.

legalschnauzer said...

@12:14 --

Thanks for the kind words. I have what might be called "hillbilly street cred." When one of your parents grows up not far from what became Dogpatch USA . . . well, I come from stock that is a bit different from that of Charles Emerson Winchester, one of my favorite characters on M*A*S*H. Mrs. Schnauzer can tell you that "you can take the hillbilly out of the hills, but you can't take the hills out of the hillbilly." The Ozark Mountain Daredevils, who formed in my hometown of Springfield, MO, remain one of my favorite music groups. Much of their work is rock/pop, country rock, even R&B. But they also touch heavily on Appalachian hill music. My wife's eyes always roll when songs like "Chicken Train" and "If You Wanna Get to Heaven" come on the stereo. Which reminds me, we've had our stereo and all of vinyl records stolen during our bogus foreclosure, and we miss them terribly. I intend to make someone pay for stealing our stuff, including our wedding rings and our music. I get highly pissed when I think of the so-called "friends" and "family members" who helped make that theft possible.

Sicario said...

Dude, I can guarantee that you would lose both your appeals even if Solomon himself were sitting on the bench. It's because, like most self-represented litigants, you don't know what you're doing. Ever hear the saying, "a little knowledge is a dangerous thing?" That's you in a nutshell. There's more to courtroom advocacy than that Matlock rerun you saw last night. All the pages and pages of drivel you painstakingly draft and file, over and over again, focus on irrelevant issues. The judges know that. The other lawyers know that. Some of your readers even know that. Why don't you?

legalschnauzer said...

Sicario --

Dude, you sound like a real legal scholar. Pretty sure most legal experts start their writings with the word "Dude." Why don't you give some specifics of my documents focusing on "irrelevant issues." Try to give us 4-5 specific examples.

I see no sign that you know what your're taking about. Let's see if you can prove that you do, Dude. I'll be waiting.