Monday, February 17, 2020

Trump's stupid tweets about Roger Stone case spark outrage over rule of law, but the constitutional staple has been on life support long before Trump took office

Roger Stone
Donald Trump's interference via Twitter in the Roger Stone sentencing has unleashed an avalanche of criticism and analysis about abuse of the rule of law. Much of the coverage suggests this is a new development, but it's anything but new. For roughly 20 years of our legal travails in Alabama and Missouri, Mrs. Schnauzer and I have seen the rule of law take a beating like the one Muhammad Ali administered to George Chuvalo in 1966.

 As much as we despise Trump and would like to see him frog walked out of the White House, the problem did not start with him. Assaults on the rule of law usually come from crooked judges and prosecutors -- and the lawyers who enable them by looking the other way. Trump had the distinction, last week, of turning it into a presidential matter, but Trump is mostly a sideshow on this issue. The problem started long before he arrived on the scene, and it's doubtful Trump even knows what "rule of law" means.

Mrs. Schnauzer and I hardly are alone in noting the battering the rule of law has taken for decades. Consider this quote from a 1989 speech by Monroe Friedman, the late Hofstra University law professor who is considered the father of legal ethics as a serious academic subject:

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.

That quote came more than 30 years ago, from a professor -- who obviously had tenure, or the judicial lobby would have attacked his job -- and was disgusted with judges who had taken oaths to uphold the rule of law and repeatedly failed to do so.

What is the rule of law, and why does it matter. Here is perhaps the best definition I've found: the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. Why does it matter? Without it -- and without judges who will enforce it -- no one knows what is lawful and what is not. Note the word "arbitrary" in the definition above; without the rule of law, everything that comes from a court is arbitrary, based on the whims of a particular judge, with no grounding in written law. This is the way courts are conducted in banana republics, and the United States is slip sliding -- not so slowly -- toward that status.

Here are three brief examples where we have seen the rule of law take a pummeling:

(1) The criminal trespass case of Mike McGarity -- McGarity is the former neighbor in Birmingham -- with a lengthy criminal record and, somehow, a job at Blue Cross and Blue Shield of Alabama -- who caused all of our legal problems, along with his crooked lawyer, William Swatek -- the guy with a lengthy disciplinary history with the Alabama State Bar.

We had lived peacefully in our home for roughly nine years when McGarity moved in next door and turned our world upside down. He, his family, and guests repeatedly trespassed on our property, and McGarity even put up a fence that took roughly 400 square feet of our yard. Essentially, he and his minions turned our yard into their personal playground -- complete with the liability we would have faced if one of them had gotten hurt on our yard, not to mention the potential for damage to our home from flying baseballs, golf balls, etc. Did McGarity bother to ask us if these intrusions were OK with us, the owners of the property? Nope. In fact, when I told him via multiple phone calls to keep himself and his various interlopers off our property, his response was, "I'm going to sue you for harassment."

I consulted a Birmingham lawyer named Bill Lewis, and he said we had two options: (a) A lawsuit, which could cost more than $10,000 and generally is meant for trespasses by inanimate objects; (b) A criminal complaint, which covers human encroachments that violate statutory violations under the Code of Alabama. Lewis agreed to send McGarity a letter via certified mail, explaining the law and stating McGarity would receive no more warnings. Lewis said he hoped the letter would solve the problem.

Unfortunately, that did not happen. We saw McGarity trespassing again, after we knew the letter had been sent and received.  At that point, we felt we had no choice but to go with option "b," and at a bench trial, McGarity was found not guilty, even though he confessed to criminal trespass, as defined by Alabama law. (I'm not making this up.)

How did District Judge Ron Jackson pull this bit of judicial chicanery? He ruled that, in this instance, we had to give McGarity written warning, and Jackson found doubt that Lewis' letter had arrived prior to the most recent trespass. Does that square with Aabama law? Not even close.

The controlling law is a case styled Chambers v. City of Opelika, 698 So. 2d 792 (1996).  Here is the key finding:

The appellant has cited no authority for his position that to be guilty of criminal trespass the intruder must be aware that he or she had no license or privilege to enter or to remain on the premises. There is authority, however, that states that when those premises are private and not open to the public, there is no requirement that the prosecution prove that a prior written or verbal warning was given to the intruder.

The law could not be more clear: A private property owner -- or a renter, for that matter -- has no obligation  to warn an intuder, in writing or verbally. In other words, McGarity was guilty of trespass, but Judge Jackson held us to a standard that does not exist under Alabama law.

(2) McGarity sues me for "malicious prosecution" --Malicious prosecution is a "disfavored tort," and in a legitimate such case, the plaintiff essentially is claiming he was prosecuted criminally or sued civilly without probable cause. In the McGarity case, I had not only probable cause but "actual cause" because McGarity admitted at trial to trespassing, as charged. Judge Jackson's not-guilty finding did not give McGarity a malicious prosecution case -- not even close -- but it did give him the bare minimum needed to sue me. No real attorney would have brought such a flimsy case on a disfavored tort, bit Bill Swatek -- with his long history of punishment for unethical acts with the Alabama State Bar -- brought one for McGarity.

How flimsy was McGarity's case? We've already shown it was a non-starter on one ground, that the underlying case was not brought without probable cause. But it was a non-starter for a second ground, that I consulted an attorney and shared all of the relevant facts with him prior to taking action against McGarity, and that is an absolute defense to a claim of malicious prosecution.

How badly was the rule of law abused in the McGarity lawsuit? Well, the summary judgment process was an absolute butcher job. I filed three Motions for Summary Judgment (MSJ), two prepared by lawyers and one that I prepared, and all were supported by relevant evidence. Each time, that shifted the burden to McGaity, requiring him to respond to my motion with evidence that showed there was a dispute that required the case to go to trial. McGarity did not respond to the first MSJ in a timely fashion, and he did respond to the other ttwo MSJs at all.

Alabama law is real simple under such circumstances; in fact, it's probably simple in all 50 states. The key Alabama case is styled Voyager Guar. Insurance Co. Inc. v. Brown, 631 So. 2d 848 (1993):

"When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing."

As a matter of law, McGarity's case could not survive summary judgment and go to trial, but Judges Mike Joiner and Dan Reeves allowed it to happen -- giving Carol and me royal screw jobs and wasting untold numbers of taxpayer dollars. Most importantly, the rule of law was starting to take shallow breaths -- and things were about to get worse for the old boy.

(3) The mind-blowing unlawfulness in my UAB employment case -- U.S. District Judge William M. Acker Jr., thankfully, is dead -- so he won't be cheating anyone else. But the cheat job he inflicted on me is enough to shock anyone with  a conscience. Acker made numerous unlawful rulings in my discrimination-First Amendment case against UAB (where I had worked for 20 years), but the most galling involved summary judgment.

Technically, my case was against the University of Alabama Board of Trustees, and the board's lawyers quickly moved for summary judgment. But they had a slight problem: Summary judgment cannot even be considered, much less granted, until sufficient discovery has been conducted. And Acker, after telling me in open court he was going to cheat me, allowed zero discovery. In other words, the case was decided with no facts in evidence.

How grossly unlawful is that? The answer can be found in a case styled Snook v. Trust Company of Georgia, 859 F. 2d 865 (1988):

This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.

Carol and I hardly are alone in receiving this kind of treatment in U.S. courts, both state and federal. We can only imagine the hundreds of thousands (millions?) of Americans who have had their constitutional rights trampled in a similar manner. It takes a dunder-headed move by Donald Trump to make the rule of law front-page news. But what about the everyday Americans who are cheated in taxpayer-funded courts, but never will see their cases come to public attention?

We've covered quite a few such cases -- in matters that did not involve us -- and now seems like an appropriate time to bring such injustice back to the forefront.

(To be continued)

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