|U.S. Eleventh Circuit Court of Appeals in Atlanta|
-- 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 badpuppy.com 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.