Monday, May 7, 2018

Some in the media are dismissing Roy Moore's lawsuit against those who accused him of sexual impropriety, but it could point to election irregularities, even crimes

Roy Moore
Roy Moore's lawsuit, against three women who accused him of sexual misconduct before Alabama's 2017 U.S. Senate special election, has been treated as pretty much a joke in several corners of the media world. Moore's complaint contains little of substance and is filled with the "craziness" for which "Ten Commandments Roy" has become known, says one columnist. The complaint sets out no facts to prove a conspiracy, makes Moore look like a "sore loser" (to Democrat Doug Jones) -- and, hey, the defendants are mostly fictitious -- writes another.

Moore's complaint is a nothing-burger that makes him look like a crybaby, the two analysts essentially conclude. I'm one of the last people on earth who ever will be accused of defending Roy Moore -- and I don't intend to do that here;  his brand of right-wing, pseudo-religious political zealotry leaves me stone cold, and I believe the Alabama Supreme Court and Alabama State Bar were hideously corrupt on his watch as chief justice.

But I disagree with the analysts above about Moore's lawsuit. I believe it does have substance, it provides more than enough information to get past the Rule 12(b)(6) motion to dismiss stage (which is all a complaint really is designed to do), and it could pose a serious threat to major political players -- including Doug Jones; his right-wing compadre Rob Riley; Bush family associates (including perhaps Karl Rove?) -- if it's proven they cooked up false stories about Roy Moore to turn the election.

As the plaintiff, Moore will bear the burden to prove the allegations against him are false -- and that likely will be a challenge. As for me, I'm not making a claim one way or another about the truthfulness of the women's stories. But I sense the main defense in the complaint is, "Judge Moore never has faced accusations of improper behavior before, so these stories can't be true now." Such a stance likely will sink quickly as the case moves along. If Moore hopes to carry the day, he will need to come up with something stronger than that.

In fact, the biggest weakness of Moore's complaint is that it doesn't do much to show the allegations are false. But it doesn't have to do that in the early stages of litigation. That's where discovery -- the fact-finding process of depositions, interrogatories, production of documents in a lawsuit -- comes in. If Moore can gather enough facts to show there is a genuine issue of whether the accusations are false and defamatory, he should get past the summary-judgment stage -- which means we are looking at a trial or a settlement. 

(The Moore-Corfman matter, for now, involves multiple complaints and jurisdictions. Corfman filed a lawsuit against Moore in Montgomery County, and he filed a counterclaim there against her. Moore's lawsuit of last week is filed against Corfman and other accusers in Etowah County, where most of the combatants do, or have, lived. The cases likely will be consolidated and heard jointly in one jurisdiction. But how that will work out remains to be seen.)

Let's examine some of the issues raised by the two columnists noted above -- Josh Moon and Joey Kennedy, both of Alabama Political Reporter (APR):

(1) Moore's complaint has no substance -- A complaint does not have to display much substance to get past the Rule 8 notice pleading standard that applies in Alabama state courts. To get past the Rule 8 bar on a motion to dismiss, a plaintiff merely must "give the opponent fair notice of the pleader's claim and the grounds upon which it rests." Moore's complaint might not do a lot, but it does do that -- meaning the case likely will not be dismissed and will go to discovery.

(2) Moore's complaint lists 19 "fictitious defendants" -- This perplexes Joey Kennedy. "That's bizarre; if they're 'fictitious,' they don't exist," he writes. Actually, there is nothing bizarre about the fictitious defendants. It's a technique that is used in Alabama litigation all the time. And it doesn't mean the defendants don't exist. It means Moore and his lawyer do not know their names yet. But they plan to learn the names via discovery and add them to the complaint. This could make several prominent sphincters tight.

(3) So there is a point to the 19 "fictitious defendants" stuff? -- Absolutely. In fact, they might form the No. 1 point in Moore's complaint. Moore probably knows his accusers did not cook up a scheme to cost him the election on their own. And even if they did, they probably do not have the power and deep pockets that could make this a national story. By naming 19 fictitious defendants, Moore's lawyer essentially is leaving space for the names of those who really did concoct a scheme to spread false and defamatory stories about Roy Moore -- if, in fact, such a scheme existed. It might be difficult to prove the stories are false, but it could be easy to prove a conspiracy -- by using discovery to seek emails, text messages, memos, phone records, etc. If such discovery points to names like Doug Jones, Rob Riley, Karl Rove, the Bush family (Jeff Sessions, Richard Shelby?) -- well, copious amounts of feces could start hitting the political fan.

(4) Doesn't Moore have to point in his complaint to some sign of conspiracy? -- Well, he does point to such signs. So far, the conspiracy points primarily to an Etowah County resident named Richard Hagedorn, who appears to have a criminal history. From the Moore complaint:

Two days later, Hagedorn spoke with a reporter of BirminghamWatch.Org and said that he had “known Leigh Corfman for 25 years, ” and that he and Corfman talked about Judge Moore over the past “few years” but never in “great detail.”

In that article Hagedorn admitted to “drug offenses” and “prison” but failed to disclose that after serving prison sentences for trafficking and possession of cocaine, he was subsequently held in contempt of court by Judge Moore on May 18, 1994 for non-payment of past-due alimony and child support amounting with interest to $63,154.33. The following day, Judge Moore issued an income withholding for monthly payments of $600 against that arrearage.

Most recently, Hagedorn pleaded nolo-contendere (no contest) to possession of marijuana in Okaloosa County, Florida.

(5) That doesn't sound like much of a political conspiracy to me -- Well, it points to long-standing connections between Hagedorn and Corfman, and their apparent shared disdain for Roy Moore. But it doesn't end there; from the complaint:

On or about October 12, 2017, Hagedorn met with an agent for the WAPO (The Washington Post) at the Big Chief Restaurant in Glencoe, Alabama and made statements which were false and defamatory, knowing that they would harm the character and reputation of Judge Moore. Hagedorn’s brother, David Hagedorn, is a columnist for WAPO and resides in Washington, D.C., with his male partner. Supreme Court Justice Ruth Bader Ginsburg presided over the high-profile marriage of Hagedorn and his partner in Washington, D.C., while the case of Obergefell v. Hodges was pending before her Court. Richard Hagedorn attended the “wedding.” Judge Moore had been critical of the same-sex marriage movement and its success in the federal courts prior to his candidacy for U.S. Senate. He had, in particular, criticized Justice Ginsburg for performing same-sex marriages while the legal validity of that practice was at issue in a case pending before her Court. . . .

Hagedorn not only conveyed false and malicious information to the WAPO but escorted its reporters for several days in Etowah County and attended meetings with other individuals, including Corfman and Wesson to further the false and malicious attacks on the character and reputation of Judge Moore. On the evening of November 9, Hagedorn posted on this Facebook page a picture of his “friend of 40 years” Leigh Corfman, expressing his support and encouragement for her defamatory statements.

(6) Doug Jones and Rob Riley wouldn't conspire to undermine Roy Moore, would they? -- They sure as hell would. As we showed in a series of pre- and post-election posts, Jones and Riley are evil bastards, linked by their shared lust for a chunk of $51 million in attorney fees from a lawsuit against HealthSouth and related entities. Also, they have close ties to the Republican pro-business corruption machine, which favored Jones (a Democrat, in name only) over Moore and his religion-based supporters. The public record strongly suggests Jones and Riley were among the crooks who conspired to bring a political prosecution against former Alabama Gov. Don Siegelman. I have zero doubt that Jones and Riley were among the scoundrels who cheated my wife, Carol, and me out of our jobs (her at Infinity Insurance; me at UAB), caused me to be kidnapped from my own home and thrown in jail for five months -- for blogging; and worked with slime balls like Luther Strange, Jessica Medeiros Garrison, and Bill Baxley to cheat us out of our home of 25 years in Birmingham.

(7) If Moore gets to the bottom of this via a lawsuit, could he also unearth crimes? -- This might be the most important question of all. I don't pretend to be an expert on all the possibilities here, but discovery in the Moore lawsuit certainly could unearth evidence of election fraud and (if the accusers were paid or compensated in some fashion) campaign finance violations. Could that cause some corrupt low-life types to wind up in federal prison? I would not rule it out.

As with most lawsuits, it all will come down to discovery -- or the fear of discovery, by one side or the other. If the case lands with a judge who allows thorough and wide-ranging discovery, certain "fictitious defendants" might become very nervous.

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