Schuyler Baker Jr., a central figure at Birmingham's embattled Balch Bingham law firm, dies from cancer

Schuyler Baker Jr.

Schuyler Allen Baker Jr., general counsel and a powerful partner at Birmingham's scandal-plagued Balch Bingham law firm, has died of cancer, according to an obituary today at al.com.

Baker perhaps was best known in recent years for vowing to "fight to the death" over what has become known as the Newsome Conspiracy Case. That's the plan where solo attorney Burt Newsome --  allegedly was targeted, falsely arrested, and defamed in a scheme designed to allow Balch and Bingham to swipe his business and ruin his law practice. Former Balch partner Clark Cooper, fired in 2017,  allegedly helped organize that plan. 

Here is how banbalch.com described the Newsome matter:

Balch and Bingham partner Clark A. Cooper, who was abruptly fired on March 3, 2017,  by the embattled law firm, appears to have been the spearhead of the conspiracy that targeted and defamed Burt Newsome, a successful attorney who serviced banks, in an alleged attempt to steal his business.

The defamation occurred after a staged arrest in which Newsome’s mugshot was allegedly distributed via email to several bank executives on a Saturday afternoon by Cooper.

According to Newsome’s appellate brief filed with the Alabama Supreme Court, Cooper looks like a habitual liar who tells half-truths and contradicts his own testimonials.

Baker Jr.'s father, Schuyler A. Baker Sr. was a Balch partner and close aide to Alabama Governor George Wallace, helping advance the governor's segregationist views, including the famous "Stand in the Schoolhouse Door," which was made even more famous by the classic film Forrest Grump.

Baker Sr. also was connected to a Wallace-era highway-funds scandal involving a firm that employed the imperial wizard of the Ku Klux Klan.

In Baker Jr.'s final years, Balch was connected -- or appeared to be connected -- to a number of controversies:

* The North Birmingham Superfund bribery scandal, where two of the firm's partners were indicted, and one -- Joel Gilbert -- was convicted;

* The Newsome Conspiracy Case;

* The David Roberson Case, a $75-million lawsuit where Balch attorneys allegedly helped make the former Drummond company executive a fall guy in the Superfund matter;

* The Newsome vehicle crash, a suspicious incident where an employee of Norfolk Southern in Birmingham appeared to intentionally hit Newsome head-on in a large SUV, causing life-threatening injuries. 

Baker Jr.'s position at Balch allowed him to have an enviable lifestyle in perhaps Alabama's premier address. From the obituary:

Schuyler Allen Bradley Baker Jr. of Birmingham passed away on October 28, 2020 after a courageous battle with cancer. Allen was born on September 1, 1947, in Tuscaloosa, Alabama and grew up in Birmingham. Allen graduated from Shades Valley High School in 1965, the University of Alabama in 1969, and Cumberland School of Law in 1973. He was a partner for Balch & Bingham for nearly 50 years and served as the firm's general counsel. He married Patty Wilson in 1974 and raised their 4 children in Birmingham. He was a dedicated husband, father, and grandfather, spending his free time with his family at Lake Martin and in Cashiers, NC.  

He was widely known as "Big Al" and loved telling ghost stories and creating fun adventures for his grandchildren. He served as coach, commissioner, and chairman of Mountain Brook Athletics and coached many of his children's sports teams throughout the years. He enjoyed playing golf with his buddies in the Chiselers dogfight at the Country Club of Birmingham. He was a long-time member of Canterbury United Methodist Church and the Crawford Owen Sunday School class. Allen served on the Board of Directors of the St. Vincent's Foundation and was a former president of The Leukemia And Lymphoma Society of Alabama and Northwest Florida.

He was a member of the Monday Morning Quarterback Club and Kiwanis Club of Birmingham. Allen was also a member, president, and king of the Beaux Arts Krewe. He was a fellow for the American College of Trial Lawyers, and served on the American Board of Trial Advocates and on the Advisory Board of the Cumberland School of Law. He also served as a long-time House Corp Chairman of the Pi Kappa Alpha fraternity at the University of Alabama. He is survived by his wife, Patty; four children: Brad Baker (Sally), Will Baker (Susannah), Mike Baker (Laura), Sally Woods (Patrick); 11 grandchildren: Maggie Baker, Allen Baker, Kathryn Baker, Wilson Baker, Eliza Baker, Annie Baker, James Baker, Caroline Baker, Charlie Baker, Schuyler Woods, Walker Woods; his sister, Katie Lasker (Jim) and sisters-in-law, Cindy Baker and Peggy Pate (Bill). He is preceded in death by his parents Schuyler & Kathryn Baker; his brother, Stephen Baker; and infant grandson, William Woods. A limited seating memorial service will be held at 12:00pm on October 31 at Canterbury United Methodist Church. There will be a drive-thru visitation at the church beginning at 1:30 pm. In lieu of flowers, donations may be sent to Canterbury United Methodist Church, 350 Overbrook Road, Birmingham, AL 35213 or the Bruno Cancer Center/St. Vincent's Foundation at www.stvhs.com/philanthropy/give.asp or 1130 22nd Street South, Ste 1000, Birmingham, AL 35205.

Did Balch Bingham lawyer Joel Gilbert provide "legal services" when he lied to Drummond exec David Roberson about scheme to fight off EPA regulations?

 

Attorneys for the defense in a $75-million lawsuit involving former Drummond Company executive David Roberson seem to have a low opinion of the "legal services" lawyers provide.

Roberson alleges two attorneys -- Joel Gilbert, of Balch Bingham, and Blake Andrews, in-house counsel for Drummond -- gave him false or incomplete information -- that caused him to be convicted in the North Birmingham Superfund bribery scandal. In essence, Roberson argues that lawyers knowingly deceived him in order to make him the fall guy in a scheme to overcome a possible cleanup order (at a reported cost of $100 million) from the Environmental Protection Agency (EPA).

The reaction of Andy Campbell, representing Balch Bingham? Hey, that's OK. Such deceptive acts are all in a day's work for an attorney. In fact, they constitute provision of "legal services." Burt Newsome, attorney for Roberson and his wife Anna, reacted with horror to such a notion. But Jefferson County Circuit Judge Tamara Harris Johnson must have bought it because she granted Balch's Motion to Dismiss, finding the "legal services" caused the Robersons' claims to fall under the Alabama Legal Services Liability Act (ALSLA) and its tight two-year statute of limitations. That means the Robersons' complaint was time-barred as filed too late. Johnson has yet to rule on a similar motion from Drummond.

Consider Campbell's words from a transcript of recent oral argument via telephone conference:

In November of 2014 before implementation of the [bribery] plan [involving former State Rep. Oliver Robinson] -- and we all know what the plan was -- the plaintiff asked Gilbert if he had inquired with the ethics lawyers of Balch Bingham whether the plan was legal and ethical. Gilbert represented to the plaintiff that Balch's in-house ethics lawyers had reviewed the plan and determined it was legal.

Now, that bad legal advice, or alleged bad legal advice, was November 2014. . . . The whole gravamen of this case is based on legal advice that was wrong or false or falsely stated. . . . In addition . . . they say [Mr. Roberson] relied to [his] detriment on this . . . legal advice and was convicted on July 20, 2018 . . . and they suffered damages as a result of that bad legal advice.

Does it matter, in Campbell's view, that the "legal services" provided in this instance involved statements that were false? Nope:

It does not depart from the fact that his whole claim is based on poor, faulty legal advice. Whether he was technically a client or not, he says he heard it, he relied on it. The law firm basically gave him false advice. He acted on it, and he was convicted. Nothing could be more a case of a claim against a legal services provider than this case is.

So, there you have it -- providing false legal information that leads to a man's criminal conviction can help make you a legal services provider, entitled to protection under the ALSLA.  How did Burt Newsome react to that idea? Not with favor:

You know, if Balch wants to argue that they were prroviding legal services to Roberson, even though it's in their pleadings he wasn't their client, they can do that. But whether or not they were providing legal services to Roberson is a question of fact, which is clearly set out in our third amended complaint that he was not a client of Balch Bingham, and Balch was not providing legal services to him.

Balch wants it both ways. They say in their own pleadings that Roberson was not Balch's client. They had no duty to Roberson, yet they want to apply the statute of limitations for the Alabama Legal Services Act. And that's ridiculous. These claims against Balch are ordinary fraud claims, and the statute of limitations on an ordinary fraud claim accrues when all the elements of a fraud are met, and one of those elements is damages. Roberson suffered no legal damage until he was indicted, and he filed suit within two years of his indictment.

How severe was Gilbert's statement, which Campbell seems to acknowledge was false? Newsome provides insight:

[Mr. Campbell] keeps saying Joel Gilbert gave Roberson legal advice. That's false. Read the complaint. Mr. Roberson didn't ask Gilbert for legal advice. He didn't ask Gilbert to research whether the plan was legal. He asked him a simple question. Has your compliance department looked at this, and Joel Gilbert lied. He said, Yeah, they've looked at it, and they determined it's legal. . . . 

[He] could have said nothing. But what Joel Gilbert did to his non-client, Mr. Roberson, knowing that he'd rely on it, was he lied to him. He said, our compliance department has looked at this and it's legal. And as the testimony showed and Mr. Roberson learned at trial, the compliance department had told Joel Gilbert actually the opposite, that it was illegal. He never was a legal-services client or received legal services whatsoever from Joel Gilbert. He simply asked Gilbert a question, and Gilbert lied to him.

Roger Stone's acolytes prove they are both vulgar and stupid in string of foul-mouthed messages from cyber-harassment campaign against Legal Schnauzer

Roger Stone

(Last of 4 parts -- Warning: Post contains profane language)

(Click here for Part 1)

(Click here for Part 2) 

(Click here for Part 3)

You might expect the president of the United States to associate with individuals who have a modicum of class. But the alliance between Donald Trump and GOP dirty trickster Roger Stone apparently has no basis in class. That is one of the take-home lessons from our experience as the targets of a Stone-driven cyber harassment campaign.

After reading Stoner messages in Part 3 of our series, a reader classified them as "vulgar stupidity" -- and I think that fits. But we haven't gotten to probably the most vulgar and stupid material. That comes in today's post.

The senders of these messages tended to identify themselves as "Anonymous" or by a clearly fake name -- so we have no way of knowing at this point who actually sent them. But they arrived in the same general time frame, with the same general tone, as the Stoner messages identified by the NYC-based social-media analytical firm Graphika. Let's examine some of the charming messages apparently sent by affiliates of Roger Stone, the president's buddy. Here are comments from a December 2016 post about Alabama politicos Jeff Sessions and Bill Pryor. For some reason -- I guess to give the public a feel for the type of assault we were under -- I chose to publish these comments, despite their lack of meritorious content. (Note: I'm running the messages as they arrived, with no changes to spelling, grammar, etc.)


Anonymous said...

LS has 'asked' me to contact him to 'discuss' my views many times. Why haven't I done it? Because these calls will get taped (without my permission) and then published on Youtube. I don't want my personal info smeared over the web like soft shit peanut butter. Just google "Chase Swatek" to see all the BS Roger can generate with small facts.

Someone said "fuck Roger" and I couldn't agree more. He's should be medicated. He turns family tragedy and into a burning enema that you shit out causing pain.

December 15, 2016 at 3:24 PM

Anonymous said...

Roger Shuler is such a coward, he won't meet me and talk to me. He makes the abuse of women and children easier. He steals from his employers. Lock 'em up!

December 15, 2016 at 3:26 PM 

Anonymous said...

You're an idiot about the [Bill Pryor Bad Puppy photo]. You should be arrested for publishing child porn. You're a pervy asshole. Stay away from our CHILDREN you fucker!

December 15, 2016 at 3:28 PM

          Anonymous said...

My husband and I pay our taxes, Mr. Shuler, allowing people like you to live off social services every day. Oh, don't think we don't know all about your current sad circumstances. Confidential my ass :-) Merry Xmas Roger you sick fuck.

December 15, 2016 at 3:29 PM

Anonymous said...

I've engaged Mr. Shuler twice now through email about important issues, and each time he has ended up demanding to know "who I am working for" and my home address. Well, he has my real name (twice now!) but not my address, because we all know what he will do with that information: try and connect me with his other "enemies" in his vast, impossible conspiracy, and then sexually smear me (I'm a woman).

December 15, 2016 at 3:30 PM

Anonymous said...

We will keep reporting your site, FOREVER, to make sure that your abusive exploitation of children and adults is flagged by Google, Bing, and everyone else. I think you can expect us to never give up.

You produce fake news that abuses women and children.

Anonymous said...

Asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar,

December 15, 2016 at 3:34 PM

You probably get the general idea behind that one. Here is another one with the same approach:

Anonymous said...

Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger

December 15, 2016 at 3:35 PM

Anonymous said...

Fuck you, Roger. Fuck you!

December 15, 2016 at 3:38 PM

Here is one I did not publish originally, but I recently found it residing in my spam folder, so here it is. This person has the "class" to attack my wife after Missouri deputies had broken her arm. I don't know about the reference to a video; it might refer to a possible police dash-cam or body-cam video, which we never received during discovery.

You won't run any video, and you know it!

You're a god damned fraud, Roger. A fucking asshole!

And we know you won't publish this comment because you're too chicken shit to take responsibilities for your actions. What a joke you are. No wonder your fucking mother won't speak with you anymore. Prick.

I hope your slut wife who you've been turning out to fuck big dogs for $20 catches VD and dies. You both deserve the misery.

Dismissal of lawsuit involving former Drummond executive is based on attorney-client relationship, but David Roberson alleges in complaint that he did not have one, and that must be taken as true, by law

David Roberson and family

An Alabama judge botched the dismissal of a $75-million lawsuit involving a former Drummond Company executive by failing to follow state law that requires her, at the motion-to-dismiss stage, to accept the plaintiff's' factual allegations as true. But that's not the only time Jefferson County Circuit Judge Tamara Harris Johnson went off the rails in David and Anna Roberson's lawsuit against Drummond and the Balch Bingham law firm. In fact, it's not the only time Johnson unlawfully failed to take the facts in the Robersons' complaint as true. 

Johnson granted a Motion to Dismiss from Balch, but she still has not ruled on a similar motion (also known as a Rule 12(b)(6) motion) from Drummond, even though she failed to take action on a variety of matters for some 14 months.

The Balch dismissal was based on Johnson's finding that the Robersons' complaint falls under the Alabama Legal Services Liability Act (ALSLA) and its tight (with several qualifiers) two-year statute of limitations. Johnson found, as Balch attorney Andy Campbell urged her to do at oral argument, that the Robersons' claims were time barred because they filed their complaint too late.

Campbell and Johnson, however, got it wrong. Case law holds that a claim falls under the ALSLA only when there is an attorney-client relationship. The Robersons' complaint plainly states that David Roberson had no such relationship with Balch's Joel Gilbert or Drummond in-house counsel Blake Andrews, the two lawyers who allegedly gave him false or incomplete information, essentially making him the fall guy and leading to his conviction in the North Birmingham Superfund bribery scandal. As a result, David Roberson lost his job, and the Robersons lost their house and many of their possessions. The Roberson conviction currently is under appeal.

Per Ex parte Austal USA (2017), Johnson was obligated to take the Robersons' allegations as true; she di not. She also was obligated to find, as a matter of law at this early stage in the litigation, that the Robersons' claims did not fall under the ALSLA, and thus were not time-barred; she did not. That means her finding has almost no chance of holding up on an appeal, notice of which already has been filed. 

What has the Alabama Supreme Court said about the importance of an attorney-client relationship for a claim to fall under the ALSLA? That is found in Brackin v. Trimmier Law Firm, 897 So. 2d 207 (Ala: Supreme Court, 2004). In Brackin, the law firm argued it had no attorney-client relationship with Brackin, and therefore owed him no duty. In Roberson, Balch argues that it did provide legal services to David Roberson, making his claim fall under he ALSLA and its tight statute of limitations. The facts in Brackin essentially are the reverse of those in Roberson, but the central legal finding of Alabama's high court still holds:

An attorney-client relationship is an essential element of a claim under the Legal Services Liability Act, and in support of its motion for a summary judgment, the Trimmier Law Firm submitted undisputed evidence that it had never entered into an attorney-client relationship with Brackin. See Sessions v. Espy, 854 So.2d 515 (Ala.2002) (recognizing that claims against a lawyer that are alleged to have arisen out of the attorney-client relationship are all subsumed under the Alabama Legal Services Liability Act); Peterson v. Anderson, 719 So.2d 216 (Ala.Civ.App.1997) (because the plaintiffs were not clients of the testator's attorney, the plaintiffs lacked standing to pursue an action against the attorney under the Alabama Legal Services Liability Act).

What if the assertions in the Roberson complaint prove to be false? What if it's shown he did have an attorney-client relationship with Gilbert and Andrews? That certainly would be a factor at trial and at summary judgment. But it is not a factor on a Motion to Dismiss. As the Alabama Supreme Court found in Ex parte Austal:  

Rather, in considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true, Ussery v. Terry, 201 So. 3d 544, 546 (Ala. 2016); we do not consider “'whether the pleader will ultimately prevail but whether the pleader may possibly prevail,”' Daniel v. Moye, [Ms. 1140819, November 10, 2016] ___ So. 3d ___, ___ (Ala. 2016) (quoting Newman v. Savas, 878 So. 2d 1147, 1149 (Ala. 2003) (emphasis added)); and “[w]e construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.” Daniel, ___ So. 3d at ___.

Due to Johnson's delays and unlawful rulings, the Robersons have been denied the right to conduct discovery for 14 months, with a pending appeal sure to cause more delay. But under Alabama law, Johnson's dismissal must ultimately be reversed, with the Robersons given the opportunity to collect evidence designed to prove their case.

Alabama judge's dismissal of $75-million lawsuit involving former Drummond exec David Roberson runs afoul of Alabama Supreme Court precedent

Tamara Harris Johnson

 

How did Jefferson County Circuit Judge Tamara Harris Johnson run off the rails in dismissing a $75-million lawsuit against the Balch Bingham law firm?

Former Drummond executive David Roberson and his wife, Anna, allege that he relied on false or incomplete information from two lawyers -- Joel Gilbert, of Balch, and Blake Andrews, in-house counsel for Drummond -- essentially making him the fall guy and leading to his conviction in the North Birmingham Superfund bribery scandal. As a result, David Roberson lost his job, and the Robersons lost their house and many of their possessions. The Roberson conviction currently is under appeal.

In the civil matter, Johnson granted a Motion to Dismiss -- also known as a Rule 12(b)(6) motion -- from Balch, finding the Robersons failed to state a claim for which relief can be granted. Johnson's reasoning, however, is flawed, and her order should be overturned on appeal. A Notice of Appeal already has been filed with the Alabama Supreme Court. (Johnson has yet to rule on a similar motion from Drummond.)

Alabama law on determining whether a Motion to Dismiss should be granted is straightforward and well settled, so it's hard to see how Johnson got it wrong. But a case styled Ex parte Austal USA (2017) shows that she did get it wrong.

In Austal, several employees were injured while using a "Miller saw," and they alleged that Austal intentionally injured them, asserting a claim for fraud and stating, "Austal “intentionally made false statements regarding the safety of the Miller Saw” and that those statements were made “with the conscious and deliberate intent to injure its workmen, including plaintiffs, with the Miller Saw so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work. . . .” Austal fraudulently “suppressed, concealed, hid or withheld important facts from the Plaintiffs regarding the known safety hazards associated with the Miller Saw ․ and that Austal knew the tool was unsafe and had made the conscious and deliberate decision to intentionally injure its workmen with the tool so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work.”

Austal labeled the allegations "conclusory" and claimed the injuries were accidental, the kind for which the company was immune from tort liability. The trial court denied Austal's Motion to Dismiss, and the Alabma Supreme Court denied the company's petition for mandamus review. 

The factual allegations in Austal, particularly those involving reliance on false statements, are similar to those in the Roberson case. The Supreme Court's reasoning on denial of a Motion for Dismiss also is instructive for Roberson:

Austal urges this Court to look only to the specific factual allegations pleaded in the plaintiffs' complaint concerning how the injuries occurred and the alleged business motivations Austal had for requiring the plaintiffs to work with a dangerous tool. Those allegations, Austal contends, describe precisely the type of workplace accidental injuries for which it is immune from tort liability. . . . 

At the motion-to-dismiss stage, however, a court's ability to pick and choose which allegations of the complaint to accept as true is constrained by Alabama's broad and well settled standard for the dismissal of claims under Rule 12(b)(6). In this case, there is no question that the plaintiffs have pleaded that Austal “made the conscious and deliberate decision to intentionally injure its workmen.” That allegation -- that a company would deliberately injure multiple specific employees -- is so shocking that it invites skepticism. Moreover, we agree with Austal that a specific intent or desire to cause injury to its employees is not particularly consistent with the alleged cost-saving motivation for causing such injuries. Nevertheless, our standard of review does not permit this Court to consider the plausibility of the allegations. Rather, in considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true, Ussery v. Terry, 201 So. 3d 544, 546 (Ala. 2016); we do not consider “'whether the pleader will ultimately prevail but whether the pleader may possibly prevail,”' Daniel v. Moye, [Ms. 1140819, November 10, 2016] ___ So. 3d ___, ___ (Ala. 2016) (quoting Newman v. Savas, 878 So. 2d 1147, 1149 (Ala. 2003) (emphasis added)); and “[w]e construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.” Daniel, ___ So. 3d at ___. Furthermore, a Rule 12(b)(6) dismissal is proper “'only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”' Knox v. Western World Ins. Co., 893 So. 2d 321, 322 (Ala. 2004) (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)).

In this case, regardless of our view on the likelihood of the plaintiffs' ultimate ability to establish the truth of the intent-to-injure allegations, or even to survive the summary-judgment stage, we cannot deny that there is at least some possibility that those allegations are true. Accordingly, the plaintiffs are entitled to at least limited discovery on the issue whether their claims are subject to the exclusivity provision of the LHWCA.⁵ Thus, Austal has not shown a clear legal right to a Rule 12(b)(6) dismissal.

By law, the Roberson's allegations, at the moion-to-dismiss stage, must be treated in the same fashion -- that there is at least some possibility that their allegations are true, and they are entitled to discovery in an effort to prove them. So far, that has not happened in Judge Johnson's court.

Montgomery lawyer Tommy Gallion, in "Shadow Government, Southern Style" unmasks Alabama's Cabal for repeatedly trashing freedom of the press

Who became so unnerved by Tommy Gallion's book on Alabama political corruption that he (or they) tried to sabotage it by causing a statement to be included on the copyright page of the second edition that the book is a work of fiction? We don't have an answer to that one yet, but Gallion has written a letter to Jeff Bezos, CEO of Amazon Publishing, in an effort to solve the mystery. We do know, however, what is in Part Three, which was added to the book for the second edition. It focuses largely on victims of what Gallion calls the "Alabama Cabal." Did something about Part Three help spark the act of sabotage? With the title "Reign of Terror," Gallion obviously is serious about the subject matter. Here is part of his work from Part Three:

From Shadow Government, Southern Style, including Part Three ("Reign of Terror") (2020), by Thomas T. Gallion III; available from Amazon and Kindle eBooks:

PART THREE 

REIGN OF TERROR

CHAPTER SEVEN: The Cabal's Raping of Freedom of the Press

VICTIMS OF THE CABAL . . . 

1. Bob Martin

2. Russ and Dee Fine

3. Richard Scrushy (former CEO of HealthSouth and non-press target)

 

“Our liberty depends on freedom of the press, and that cannot be limited without being lost.”

-- Thomas Jefferson 

Although I’m often angry with the press, it is the only source to checkmate corrupt politicians. As I
stated earlier, I always wanted to be an investigative journalist and now in the last quarter of the game
of life, I am attempting to do some of that with this book. Perhaps it is my way of fulfilling my bucket list and giving the finger to these corrupt politicians. Perhaps I should be wary, especially where the Rileys are concerned: They put one journalist in jail for five months without bail on an alleged misdemeanor for writing about a member of the their family. This chapter will further scare the Hell out of people who crossed the Rileys. Bob Riley and Rob Riley are as ruthless as Jesse and Frank James, as far as punishing their enemies.

I will start with Bob Martin, one of the finest editors I have ever known. He retired in 2017 as owner and publisher of The Montgomery Independent, a widely read weekly newspaper in Alabama. Martin caught onto Riley’s Indian Casino scam and his attempt to put Milton McGregor out of business while
destroying Tuskegee. Riley, using corrupt FBI agents, tapped Martin’s phone and had the FBI call and
inform him that they had done so. This was nothing but scare tactics to stop Martin from exposing Riley. Martin, the son of a Methodist preacher, remained undaunted and continued to expose the Riley-related corruption.

The Rileys even went after a popular talk-show host and his wife, who exposed the Rileys' blatant
corruption. Russ Fine, PhD, MSPH, and his wife broadcast their conservative talk show out of Birmingham. The Fines are devout Jews and enjoy nationwide respect. Russ, a brilliant individual, is a
graduate of Southern Illinois University, the University of Missouri Medical Center, and the University of Oklahoma Medical Center. Then he became ICRC Director Emeritus Professor of Medicine at the UAB School of Medicine, and Professor of Health Care Organization and Policy at the UAB School of Public Health. His honors are so voluminous that we don’t have room to print them here. Russ and his wife started revealing the Rileys’ corruption and the Rileys tried to get Russ fired from the UAB Medical School. Russ was a tenured professor and too valuable to UAB for them to bow down to the Rileys’pugilistic attempt. However, the Rileys did succeed in having the Fines’ talk show removed from the air.

An investigative reporter, Sandy Frost, on October 11, 2006, published the following: “On Monday,
September 25, two veteran Birmingham, Alabama, radio talk show hosts, Russ and Dee Fine, were fired an hour before their program was scheduled to end, in large part because Alabama Governor Bob Riley is a member of a secret society that is still governed by documents forbidding membership to negroes or other inferior races. Governor Riley was invested with the Rank and Decoration of Knight Commander of the Court of Honor on May 9, 2005, in a private ceremony at the Governor’s Manson ... a reception was held in the Governor’s Mansion, presumably at taxpayer expense.” 

After finding this article by Sandy Frost, I became more curious about this Masonic Lodge to which Riley belonged, and I discovered that they disallowed membership to blacks and other minorities. I am of the opinion that everyone has a right to associate with whomever they so desire, but it did not end there. The blacks have a separate nationwide Masonic Lodge system called Prince Hall Masonic Lodge. This lodge tried for years to be recognized by the nationwide Masonic organizations. That has happened over the years but denied in Alabama and a few other Southern states. It was only when Riley was in his last year as governor and on his way out the door that the Prince Hall Masons were recognized in Alabama and Riley’s Ashville, Alabama, lodge.

The question remains: Did Riley use various brothers in the Alabama lodges to infiltrate juries and influence judges? So far, I have found one such instance in the Richard Scrushy jury during his first trial in Birmingham. All jurors except one had voted for acquittal. This one juror would not back down, and after several days of being sequestered, the jury returned for the final day. Scrushy and his wife, who are both devout Christians, had prayed all night. As the bus carrying the jurors pulled into the courthouse parking lot, the Masonic juror became violently ill and regurgitated repeatedly. He was excused from the jury. In less than one hour, the jury came back and found Richard Scrushy not guilty on all counts. The Lord worked in a most mysterious way that time!

Masons do a great deal of good nationwide. My father, grandfather, and many other members of my
family were Masons. However, when you put a man such as Bob Riley in a position of high authority,
you can expect that he will use his affiliations for his own selfish and political reasons. I am of the
opinion that Riley used several of his Masonic brothers to help in his ploy to convict Siegelman and
Scrushy. As I will cover later, I know he did so in trying to convict Scrushy in his trial in federal court in Birmingham.

I want all the Jewish readers to remember Hitler. The Rileys, rather than gas Dr. Fine, tried to destroy
his and his wife’s careers. They wanted to shut them down and take them off the air. 

Alabama Judge Tamara Harris Johnson dismisses $75-million lawsuit against Balch Bingham -- but did she get it right and will it hold up on appeal?

David Roberson and family

An Alabama judge, who failed to rule for more than a year on motions in a $75-million lawsuit involving a former Drummond Company executive and his wife, has finally taken action in the case. After all that time, you might expect that Jefferson County Circuit Judge Tamara Harris Johnson surely would get her rulings correct. But she wound up getting it wrong on one of the most basic and straightforward principles of Alabama law -- the standard for reviewing a Motion to Dismiss under Rule 12(b)(6) of the Alabama Rules of Civil Procedure.

To top it off, Johnson still hasn't completed her backlog of work on the case. Drummond has had a Motion to Dismiss on file since April 2018, but Johnson is yet to rule on that. Plaintiffs have filed a Motion to Compel with the Alabama Supreme Court, seeking a ruling that would force Johnson to do her job.

In their complaint, David and Anna Roberson allege Mr. Roberson relied on false or incomplete information from two lawyers -- Joel Gilbert, of Balch Bingham, and Blake Andrews, in-house counsel for Drummond -- essentially making him the fall guy and leading to his conviction in the North Birmingham Superfund bribery scandal. As a result, David Roberson lost his job, and the Robersons lost their house and many of their possessions. The Roberson conviction currently is under appeal.

During a recent hearing via telephone conference, lawyers for defendants Balch and Drummond argued that Roberson received legal advice from Gilbert and Andrews, meaning the lawsuit is governed by the Alabama Legal Services Liability Act (ALSLA), Code of Alabama 6-5-572, and its tight (and confusing) two-year statute of limitations. Under the ALSLA, Balch and Drummond argued, the Robersons filed their claim too late, meaning it was time--barred per the defendants' Rule 12(b)(6) motions. Judge Johnson apparently bought that argument and granted Balch's Motions to Dismiss. A Notice of Appeal has been filed with the Alabama Supreme Court, and it's unclear when Johnson might rule on Drummond's motion.

Burt Newsome, attorney for the Robersons, argued that David Roberson's interactions with Gilbert and Andrews did not involve legal advice or the provision of legal services, meaning their complaint should not fall under the ALSLA and is not time-barred.

At oral argument, Balch attorney Andy Campbell urged Johnson to strictly follow the statutory language of the ALSLA. Here are some of its key definitions and provisions:

(1) LEGAL SERVICE LIABILITY ACTION.  Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider's violation of the standard of care applicable to a legal service provider.  A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.

(2) LEGAL SERVICE PROVIDER.  Anyone licensed to practice law by the State of Alabama or engaged in the practice of law in the State of Alabama. The term legal service provider includes professional corporations, associations, and partnerships and the members of such professional corporations, associations, and partnerships and the persons, firms, or corporations either employed by or performing work or services for the benefit of such professional corporations, associations, and partnerships including, without limitation, law clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers.

Burt Newsome

As licensed attorneys, Campbell argued, Gilbert and Andrews meet the definition of "legal service provider," and  the lawsuit over their alleged wrongs constitute a "legal service liability action," invoking the ALSLA and its statute of limitations, which could stick a dagger in the Robersons' claims.

Newsome, on the Robersons' behalf, argued that this is "an ordinary fraud case," not a legal-malpractice case -- and the dissemination of false, deceptive, or incomplete information does not constitute the provision of legal services.

We already know how most of this played out in the trial court, after a long delay. But how should it have played out, as a matter of law, and how should it play out on appeal?

(To be continued)

Tommy Gallion's book on Alabama political corruption must be striking nerves because second edition somehow includes insert that labels it a work of fiction

 

The second edition of Montgomery lawyer Tommy Gallion's book about Alabama political corruption inexplicably contains a statement on the copyright page that the book is a work of fiction, and Gallion states in a letter (dated 10/16/20) to Amazon CEO Jeff Bezos that it almost had to be a deliberate act of sabotage and demands corrective action.

U.S. Sen. Doug Jones (D-AL) comes under heavy criticism in the book, and Gallion's letter suggests that Jones, or someone connected to him, might be tied to the change.

The first edition of Shadow Government, Southern Style: Political Corruption from D.C. to Dixie, released by Amazon Publishing, contained a correct statement on the copyright page, near the front of the book, and it reads : "The characters and events portrayed in this book are true, based on personal knowledge, memory, and research of the author."

For the second edition, which includes Part Three, the statement says, "The characters and events portrayed in this book are fictitious. Any similarities to real persons, living or dead, is coincidental and not intended by the author.

How did the change happen? That remains unclear, but Gallion seems determined to find out. He writes to Bezos:

I spent eight years researching the material for this book. Since the book came out in the marketplace several months ago, it has done very well. Amazon has awarded it five stars. I selected Amazon Publishing to publish my book because of its alleged good reputation in the publishing field.

After the first edition was published, I received information that caused me to write a revised second edition. This revised edition was published several days ago. The first edition contained an introduction and Part One and Part Two. The second edition contains Part Three and a revised Table of Contents, which is the subject of this letter. Otherwise, the second edition was to be identical to the first edition. My editor sent the second edition to Amazon Publishing with only the above changes.

Yesterday, my phone rang off the hook with people who were confused as to the blatant and illegal changes to the book, without the permission of either my editor or me.    

This change had to be deliberate as shown above. This specious and malicious act destroyed not only the book, but my reputation and credibility that can never be repaired.

I have appeared on talk shows and am appearing before the Montgomey Lion's Club on Friday regarding the book. I have a book signing in Fairhope, Alabama, at the oldest bookstore in Alabama, to a sold-out crowd on Saturday.

My book has uncovered some of the most corrupt political prosecutions in the history of our country. The book discusses well-known politicians, both Republican and Democratic, such as former Democrat U.S. Attorney General Eric Holder, his client Karl Rove, U.S. Senator Doug Jones, and many others.

Could this lead to legal action? Gallion's letter suggests the answer is yes. He writes to Bezos:

In order to mitigate my damages, I respectfully request you or someone in your organization do the following:

(1) Immediately send out the correct copyright information to every person who has bought the second edition for Amazon;

(2) Forward to me the name and contact information for the person at Amazon Publishing that made this unauthorized change to my boook;

(3) Please give any information of anyone mentioned in my book that contacted you or anyone at the Amazon organization or The Washington Post, which you own, about this book.

(4) Provide executed sworn affidavits from you and the head of Amazon Publishing attesting that both of you have no relationship of any nature with the people mentioned in my book; and 

(5) The affidavits should include you personally, any Amazon Company employee. and any Political Action Groups ("PACs") that have contributed to the election of U.S. Senator Doug Jones, directly and/or indirectly. 

I suggest you have Amazon's attorney look at the violations of copyrights contained in "Counter-notification under 17 USC Sec. 512(q)(3) referred to as DMAC." I have talked to several people in the publishing area, and all have said that this unauthorized change of my book had to be deliberate based on the facts stated above.

Your immediate response will be greatly appreciated.

Sincerely,

Thomas T. Gallion III

Amy Coney Barrett says one thing about discrimination during Senate confirmation hearings, but her record from the bench says something else

Amy Coney Barrett

 

U.S. Supreme Court nominee Amy Coney Barrett probably is best known for her conservative stances on religion and abortion rights. But her rulings on matters of alleged discrimination perhaps should be particularly troubling for many Americans, according to a watchdog group called Accountable.us.

As Barrett went through a second day of confirmation hearings yesterday, she made a statement that is wildly at odds with her record. From the Accountable report:

During [yesterday's] Senate Judiciary Committee hearing on Trump’s pick for the Supreme Court, Judge Amy Coney Barrett said she thinks “discrimination is abhorrent.” But a new report released this week by government watchdog Accountable.US reveals that Barrett sided with parties accused of discrimination in a sweeping 85 percent of cases, and sided with workers in just 8 percent of cases, in her time on the 7th Circuit Court of Appeals. 

“Barrett said she thinks discrimination is abhorrent, but her record tells a different story. Siding with those accused of discrimination 85 percent of the time shows that Barrett is no friend to workers, nor to those seeking redress for bigotry and harm they have experienced,” said Kyle Herrig, president of Accountable.US.

“As workers languish without an additional relief package, the Senate is jamming through a plainly anti-worker nominee for a lifetime appointment on the high court. The Senate’s warped priorities as millions of Americans continue to suffer have never been on more obvious display.”

Accountable peovides examples of Barrett's handiwork:

Among these cases are the following egregious examples:

• United States EEOC vs. AutoZone Inc., AutoZoners, LLC: Amy Coney Barrett voted against rehearing a ruling on racial segregation that the Seventh Circuit chief judge said legalized the “separate but equal” doctrine.
   
• Taylor-Reeves v. Marketstaff, Inc.: Amy Coney Barrett voted to uphold the ruling in favor of the company because “‘requesting leave for strep throat’ is not a statutorily protected activity.”
   
• Grussgott v. Milwaukee Jewish Day School, Inc.: Amy Coney Barrett said a woman with cognitive impairments could not sue under the Americans with Disabilities Act after she was terminated for responding to a parent who mocked her memory issues.

Read more of Accountable.US’s analysis of Amy Coney Barrett’s decisions in the Seventh Circuit Court of Appeals against workers and victims of discrimination here.

Tommy Gallion shines a spotlight on victims of Alabama's political Cabal and those who have suffered during its long-running Reign of Terror

 

Montgomery attorney Tommy Gallion has discovered that writing a book about Alabama corruption can be a never-ending project. Gallion published Shadow Government, Southern Style: A Saga of Political Corruption from DC to Dixie in May 2020. He immediately started hearing from witnesses to additional corruption, convincing him that the book would need to be updated. Those updates now are available in a second edition of Shadow Government, which features Part Three, titled "Reign of Terror." It includes . . . well, we'll let Gallion tell it:

From Shadow Government, Southern Style, including Part Three ("Reign of Terror") (2020), by Thomas T. Gallion III; available from Amazon and Kindle eBooks:

PART THREE 

REIGN OF TERROR

CHAPTER ONE: 2002 - 2011

“Freedom is what you do with what has been done to you.”
-- Jean-Paul Satre

After I published the original edition of my book in May 2020, I received many calls from individuals who had read it, and provided additional information sufficient to compel me to publish a second edition with Part Three. I tried to recall many of my personal experiences and allow the softly lit sepia of my memory do the work, but I failed. If the reader thinks I uncovered shocking revelations in the original edition, please stay tuned. With that first edition, I spent years researching my material to ensure the accuracy of the content; similarly, I have now spent many months verifying these latest scandalous facts by rechecking my sources, and by consulting reliable news articles and individuals who were victims of The Cabal’s gangster tactics. Instead of using machine guns, The Cabal used illegal police and prosecutorial powers to imprison innocent people, and they attempted to do so with even more. They even went so far as to attempt to put an innocent journalist in jail for revealing the truth about the political corruption taking place in Alabama and DC. The Cabal’s idea of first-amendment rights under our Constitution was akin to Hitler’s: If a journalist disagreed with the Nazi Party, he or she could wind up in a concentration camp. If you disagreed with Alabama’s Riley family, they would either put you in jail or destroy your career. The Rileys and their henchmen make Vlad the Impaler and his band of terrorists look like Snow White and the Seven Dwarves.

In Part Two, I revealed the members of The Cabal; I will now add two more members I recently
discovered: US Senator Doug Jones and former Governor Don Siegelman’s assistant, Nick Bailey.What
Doug Jones and his friend Rob Riley did to Siegelman and Richard Scrushy, the former CEO and founder of only the second Fortune 500 company in Alabama, HealthSouth, will bring you to your knees. This Reign of Terror began with Karl Rove and Congressman Bob Riley in their warped ploy to elect Riley governor and unseat Siegelman in 2002. You might recall my statement in Part Two about my refusal to attend a meeting organized by my lifelong friend Winton Blount III, with Karl Rove. This Reign of Terror, unlike the one that occurred in France during the French Revolution, lasted only eight years. This was the genesis of eight years that destroyed many innocent lives and made the Riley family extremely wealthy. One of the most hideous events was the corruption in the Justice Department and FBI agents Reign of Terror. The Cabal spread their evil disease like a band of syphilitic strumpets screwing every taxpayer and the Alabama schoolchildren’s education. In this parody of a famous play, film, and Broadway musical, we have The Best Little Whorehouses in Alabama and Washington, and it’s time to pull back the bed sheets and play political show-and-tell.

(To be continued)

Michigan Gov. Gretchen Whitmer could be setting the stage to have criminal charges brought against Trump for solicitation of violence against state officials

Gretchen Whitmer

 

The right-wing militia plot to kidnap Michigan Gov. Gretchen Whitmer probably was a shocker to many Americans, But our "lawyer source," who we quote periodically on legal matters that are national in scope, essentially foresaw such an event six months ago. He also saw the potential legal headaches Donald Trump could attract for inciting such an event. News reports in recent days, our source says, suggest Whitmer is setting the stage to have criminal charges brought against Trump -- and, under the law, she has grounds to do it.

How did our source essentially see this coming? Let's turn to our post of April 21, 2020, with the title "Trump's words of defiance to protesters flaunt federal and state laws, sending a peculiar anti-government message from someone who heads the government": 

Donald Trump's recent Tweets, exhorting his followers to "liberate" themselves from state-sanctioned stay-at-home orders during the coronavirus outbreak, likely violate federal law, according to a former official with the U.S. Department of Justice (DOJ). Trump's actions also could violate state laws that criminalize defiance of lawfully issued state orders, a lawyer source tells Legal Schnauzer. That especially might be the case in Virginia, where Trump's Tweet included a reference to protesters' "Second Amendment rights," which could be construed as an incitement to violence.

While Trump clearly is playing dangerous games with the law, he also may be playing a wildly flawed political equation, according to New York Times columnist Maggie Haberman, in a piece titled "Trump, Head of Government, Leans Into Anti-Government Message."

As for lawlessness emanating from the White House, Mary McCord addressed that in an op-ed at The Washington Post. McCord is legal director of the Institute for Constitutional Advocacy and Protection and a visiting professor at the Georgetown University Law Center. She was acting U.S. assistant attorney general for national security from 2016 to 2017. From the McCord op-ed:

"President Trump incited insurrection Friday against the duly elected governors of the states of Michigan, Minnesota and Virginia. Just a day after issuing guidance for re-opening America that clearly deferred decision-making to state officials — as it must under our Constitutional order — the president undercut his own guidance by calling for criminal acts against the governors for not opening fast enough."

 

Our source then provided legal details behind McCord's words:

Our lawyer source provides details about state insurrection laws, especially from the Code of Virginia, and notes that states are not precluded from prosecuting a sitting president. Writes our source:

It is obvious Trump's tweets to protesters to "liberate" themselves from the "siege" the state governors have ordered was intended by Trump to encourage and incite those protesters (his base) to intimidate state governors. After all, wasn't intimidation of public officials the purpose of the so-called "Brooks Brothers Riot" in Florida in 2000?

You may find it interesting that the Criminal Code of Virginia has several applicable criminal provisions, including mob crime laws and criminal solicitation statutes. Also, the Criminal Code of Virginia defines a criminal "act of terrorism" as an act of violence with the intent to either "intimidate a civilian population at large" or to "influence the conduct or activities of a government, including . . . a state . . . through intimidation." Crim. Code of Va., Section 18.2-46.4. Trump's tweet was not violence; but the message Trump tweeted clearly suggested that Trump was encouraging protesters to act as a mob of public assembly and intimidate state officials to withdraw state orders issued to protect lives and public health. Therefore, if protesters, especially those known to revere Trump, end up forming a mob and engaging in any violence whatsoever, it is absolutely clear that Trump could be criminally prosecuted in Virginia for his public communications (tweets) in which he sought to command, entreat, or otherwise persuade persons to intimidate their state governments and state public officials and to resist execution of lawful state-government orders. If protesters followed Trump's encouragement and assembled, fomented riot, and/ or killed anyone, then Trump could be criminally prosecuted for criminal solicitation to incite riot, unlawful assembly, treason, and terrorism.

Virginia also criminalizes inciting a riot or unlawful assembly.

Finally, Virginia also criminalizes and calls it "treason" for a person to (1) solicit or encourage others to wage war against the Commonwealth of Virginia (e.g., insurrection or riot); or (2) solicit or encourage others to resist the execution of the laws of Virginia under color of its authority. See Crim. Code of Va., sections 18.2-29 and 18.2-481(1) and (5).

        The full language from the relevant Virginia law can be found at Title 18.2, Code of             Virginia.

          What kind of signals is Whitmer sending? Well, it's clear that she is unhappy about a plot that                  likely put her life, and the lives her colleagues, at risk. Consider this op-ed from Whitmer in                 The  Washington Post:        

When I addressed the people of Michigan on Thursday to comment on the unprecedented terrorism, conspiracy and weapons charges against 13 men, some of whom were preparing to kidnap and possibly kill me, I said, “Hatred, bigotry and violence have no place in the great state of Michigan.” I meant it. But just moments later, President Trump’s campaign adviser, Jason Miller, appeared on national television accusing me of fostering hatred.

I’m not going to waste my time arguing with the president. But I will always hold him accountable. Because when our leaders speak, their words carry weight.

When our leaders encourage domestic terrorists, they legitimize their actions. When they stoke and contribute to hate speech, they are complicit. And when a sitting president stands on a national stage refusing to condemn white supremacists and hate groups, as President Trump did when he told the Proud Boys to “stand back and stand by” during the first presidential debate, he is complicit. Hate groups heard the president’s words not as a rebuke, but as a rallying cry. As a call to action.

What does our source think of Whitmer's words? He thinks she's mad as hell -- and serious -- and she still has reason to be concerned about her safety:

I believe Whitmer is setting the stage so it's no surprise in about six months, after things cool down, when Mich. officials file charges against Trump for criminal solicitation and criminal encouragement of treason and violence against the State of Michigan and its public officials.

Did contract dispute between Drummond Company and Norfolk Southern play a role in the head-on vehicle crash that seriously injured Burt Newsome?

 

Burt Newsome crash scene

The head-on vehicle crash that nearly killed Birmingham attorney Burt Newsome remains shrouded in mystery, so how does one go about trying to unravel the unknown? One possibility, at least for starters, is to look for connections between and among entities that are Newsome's recent courtroom adversaries (Drummond Company, Balch Bingham, Alabama Power) and an entity that is known to have a tie to the crash itself (Norfolk Southern).

Our initial research reveals one such connection, and it is curious, to say the least. The connection is between Drummond and Norfolk Southern, which probably should not be a surprise, given that Drummond produces coal and Norfolk Southern hauls freight, such as coal, around the country.

Published reports indicate the companies have done business for years, but the relationship has turned sour due to a breach-of-ontract lawsuit over the volume of coal to be transported to power plants around the Southeast. The case originated in the U.S. Western District of Virginia (Roanoke), with a jury finding that Norfolk Southern will have to refund almost all of $35 million in fees and penalties that Drummond has paid it. The case now is set to be heard before the U.S. Fourth Circuit Court of Appeals (Richmond), after a lengthy delay for post-trial motions. From a report by Angela Coker at the Birmingham Business Journal (BBJ):

A jury has sided with Drummond Coal Sales Inc. in a lawsuit the company filed against Norfolk Southern Railway (NYSE: NSC)

Drummond Coal, a subsidiary of Drummond Co. Inc. – one of Alabama’s largest manufacturers – entered into a shipping contract with Norfolk Southern Railway providing for rates to 23 specified coal-fired power plants from Shipyard River Terminal owned by Kinder Morgan in Charleston, South Carolina.

The nine-person jury determined NS broke the contract about six months after it was signed and, in a declaratory judgement, relieved Drummond of paying in excess of $40 million still owed on the contract and determined NS will have to refund Drummond all or virtually all of the $35 million it has paid since 2010. . . .

How did the contract go awry? Here is how BBJ described the jury's findings:

The jury found NS broke its contract with Drummond about six months after it was signed by entering into separate contractual dealings that devalued Drummond’s contract. During discovery, Drummond obtained NS’s confidential contracts with the utilities that own the plants and learned the terms of those contracts either required the utilities to use their own shipping contract or else pay liquidated damages, making Drummond’s contract worthless, and/or gave financial incentives to the utilities to purchase coal other than Drummond’s.

Norfolk Southern has claimed this was a case of buyer's remorse and that Drummond knew the risks, according to industry publication RT&S.

The contract contained guaranteed minimum volumes that, if not met, required Drummond to pay liquidated damages, and between 2010 and 2014, Drummond paid NS over $35 million in liquidated damages. The liquidated damages escalated each year, but over the term were between $7 million and $8 million. Other than a few shipments in 2010, Drummond has not shipped a single ton on the contract between 2011 and present.

How could this connect to the Newsome crash? The answer to that question remains murky, but we know this:

* Newsome has filed a $75 million lawsuit against Drummond on behalf of former executive David Roberson;

* Norfolk Southern, at the moment, is on the hook to Drummond for about $35 million;

* The driver of the SUV that hit Newsome, in a crash that shows signs of being staged, works at the Irondale, AL, office of Norfolk Southern.

How does all of this add up? Well, some key pieces to the puzzle remain outstanding. But the search for those pieces is ongoing.

Norfolk Southern

Alabama State Bar denied "permission" for Bham-area lawyer Greg Morris to get involved in my federal lawsuit re: "being jailed for blogging" in Shelby County

Tripp Vickers

 

A representative of the Alabama State Bar told a Birmingham-area lawyer not to get involved in my federal lawsuit over being unlawfully "arrested for blogging" ("The Jail Case") in Shelby County. 

Greg Morris, of Fultondale, agreed to attend a Rule 26 meeting (for scheduling of discovery) on our behalf and was rewarded by having U.S. District Judge Virginia Emerson Hopkins berate him in front of a room full of lawyers. Morris,on his own initiative, wrote an affidavit to explain his purpose for attending the meeting. While preparing the affidavit, Morris had a question that he thought someone in the State Bar's Office of General Counsel needed to address.

Instead of getting his question answered, Morris was told to stay out of my case. Perplexed and understandably taken aback, Morris passed along to me what the bar official said -- and I was not happy about it. Is it the purpose of the Alabama State Bar to tell a lawyer not to get involved in a specific case? I doubt it. Why would a bar official make such a statement regarding my case; does this happen regularly  in other cases? Greg Morris is a veteran attorney, with about 25 years of experience, and based on his reaction, I'd say the answer is no. Was I deprived of my right to counsel? Yes. Has the Alabama State Bar ensured that my right to counsel would be trampled in other cases? I think it probably has. Has it even communicated with federal judges to make sure I got the short end of the stick in U.S. courts? I'm having fewer and fewer doubts about that. For example, was Hopkins so mad at Morris because the bar told her that no one was expected to appear on my behalf, so she lost it when Morris appeared unexpectedly?

 How exactly did Morris' communications with the bar official go? Here is how Morris described it to me:

The State Bar tells me, "Do not use [the affidavit], it may just make your matters worse.

[The Bar official] said, "If they want you, the judge will call you or compel you.

I said I feel strongly about all I've written; he said, "You'd better not go. Now I'm not telling you to change anything in the affidavit; if the judge wants to hear from you, she will call you in.

How baffled was Morris? His words  tell the story:

I don't know what they are going to do to you, Roger. I can't imagine why they have such a hard-on. But the bar is telling me, "Greg, do not get any further involved -- you're not helping yourself and you're probably not helping Mr. Shuler."

I have to follow what the bar tells me to do. I wouldn't tell you this otherwise. I feel badly. 

[The Bar says], "Tell Roger no, no you don't have permission, you stay away from that, if the judge wants to hear from you, she'll let you know."

 

A lawyer has to receive permission from the State Bar to get involved in a case? That's news to me, and the whole experience apparently left Morris dazed and confused.

The State Bar, as a professional ethics group, is the lawyer's lawyer. My lawyer basically says, "Unless the judge asks you, stay out of it." He says no.

Why are they doing this? Why you?

 As for Judge Hopkins , she was acting like a rabid wolverine. Said Morris:

After she lambasted me, blistered me pretty good, she was so pissed off . . . I don't understand.

 I have these words from Morris, and more, in a word-for-word format.

By the way,who was the Bar official with whom Morris conversed? That is unclear because Morris does not remember his name.

 Douglas McElvy was acting general counsel at the time, and I asked him to investigate the matter. (The full-time general counsel now is Roman Shaul.) I see no sign that an investigation took place, although I've left a message with Morris to see if the Bar followed up with him. I've received no response so far

The Office of General Counsel consists of Tripp Vickers, Mark Moody, and Jeremy McIntire. McElvy told me that an inquiry such as Morris' almost certainly would go to him or Vickers -- and it did not go to him.

So, did Tripp Vickers tell Morris to stay out of my case? That's the best information we have at the moment.

Trump-appointed judge David Stras administered gross cheat job on police-shooting lawsuit, but William Acker's "railroading" in my UAB case was even worse

William M. Acker Jr.

David Stras, the Trump-appointed federal judge who unlawfully forced a finding of immunity for a Kansas City police officer who fatally shot an unarmed black man -- Ryan Stokes -- in the back, is an unmasked crook with a robe. But Stras' opinion in N.S. v. Kansas City Board of Police Commissioners (8th Cir., 2019) reveals that he actually is not as bad as a federal judge with whom I have come face to face in the Northern District of Alabama.

We are talking about William M. Acker Jr. (now deceased), the Reagan appointee who administered a monumental cheat job in my First Amendment/wrongful termination lawsuit against UAB (University of Alabama System Board of Trustees), where I had worked for 20 years. Evidence clearly shows I was targeted because of my reporting on the Don Siegelman case at this blog, but Acker took steps to ensure the case was decided with no facts in the record. (I'm not kidding).

David Stras

The U.S. Supreme Court, apparently anticipating that rogue judges like Acker would trample summary-judgment procedure, came up with a term for such an action; they called it a "railroad job."

Stras clearly conducted a "railroad job" in the Stokes case, so how could Acker be worse than that? Let's revisit  a key section of the N.S. opinion that Stras authored:

Some evidence supports [Officer William] Thompson's account. The police discovered a handgun on the driver's seat of the car, which could mean that Stokes was armed when he entered the parking lot but then tossed the gun into the car. And witnesses who saw Stokes running said that he appeared to be "holding up his pants as he ran," which is arguably consistent with Thompson's perception that Stokes was holding a gun. Finally, Thompson's partner claims to have heard Thompson order Stokes to "get on the ground."

Other evidence supports the family's account. No one besides Thompson observed Stokes with a gun, nor was any gun found on or near his body. The car's owner, who was Stokes's friend, claimed that the gun recovered from the car belonged to him and that it had been there all night. Moreover, some officers did not recall hearing Thompson shout anything during the encounter, and at least one officer thought Stokes was trying to surrender when Thompson shot him.

Notice the repeated references to evidence; that shows that trial-court judge Brian Wimes allowed for discovery before considering summary judgment based on police-immunity claims -- as he was required by law to do. Wimes denied summary judgment for Officer Thompson, but the Stras panel vacated that finding and essentially forced a ruling that found Thompson was immune from lawsuit.

We can give Stras a little credit for not trying to hide in  his opinion that facts had been entered into the record via discovery. What about Acker in my case against UAB? He allowed zero discovery -- meaning the case essentially was decided without facts -- violating U.S. Supreme Court and 11th Circuit precedent. Here is how we described Acker's handiwork in a June 2018 post:

How badly did Acker screw me on the UAB case? I've written several lengthy posts on that subject (see here, here, and here), but it boils down to this. He granted the university summary judgment, without discovery, in clear violation of the Federal Rules of Civil Procedure and Eleventh Circuit precedent, as outlined in Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988). From Snook:

"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."

Law doesn't get much more direct and simple than that. I filed at least three motions to inform the court that discovery had not been conducted, and Acker admitted in open court that he was aware of that, and I was entitled to conduct discovery to counter UAB's motion for summary judgment.

We've reported on at least one of Acker's judicial colleagues in the Northern District of Alabama who knows the law on discovery and summary judgment and has applied it correctly multiple times. We've reported that Acker himself has correctly applied the law in multiple cases. He just didn't do it in my case, and that's probably because he knew political thugs had pressured UAB to unlawfully terminate me, and Acker chose to protect those thugs. Specifically, Acker likely was protecting GOP cretin Rob "Uday" Riley and his associates, who were the driving forces behind my cheat job at UAB. We recently have uncovered evidence that suggests the Alabama State Bar might have been involved, too.

For good measure, we recently reported on Sarah Palin's ongoing defamation lawsuit against The New York Times, where the U.S. Second Circuit Court of Appeals, in so many words, confirmed that Acker cheated me raw on the UAB matter.

Acker did not just violate 11th Circuit precedent; he also pissed all over the Supreme Court of the United States (SCOTUS). From a case styled Celotex Corp. v. Catrett, 477 US 317 (Supreme Court, 1986):

We think that the position taken by the majority of the Court of Appeals is inconsistent with the standard for summary judgment set forth in Rule 56(c) of the Federal Rules of Civil Procedure.[4] Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]h[e] standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a) . . . ." Anderson v. Liberty Lobby, Inc., ante, at 250.

As you can see, there must not only be discovery, but "adequate time" for discovery. In my UAB case, Acker ensured there was no time for discovery. SCOTUS, in Celotex, seemingly was able to look into the future and see that rogue judges like Acker would try to skirt the law:

Respondent commenced this action in September 1980, and petitioner's motion was filed in September 1981. The parties had conducted discovery, and no serious claim can be made that respondent was in any sense "railroaded" by a premature motion for summary judgment. Any potential problem with such premature motions can be adequately dealt with under Rule 56(f),[6] which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery.

Do I have no choice but to sit back and accept Acker's screw job, which the University of Alabama Office of Counsel facilitated with its silence? Do Mrs. Schnauzer and I have to accept multiple screw jobs we have experienced jointly in other federal cases? Not necessarily, as I wrote in a September 2019 post about the wrongful foreclosure on our home of 25 years in Birmingham:

If this were a case of incompetence in the 11th Circuit, that would be alarming enough. But this involves intentional cheating, which probably rises to the level of fraud on the court. And that, by law, should give us grounds to reopen "The House Case," along with all of the other federal matters -- including our employment cases against UAB and Infinity Insurance -- where we were intentionally cheated due to fraud on the court.

My initial research indicates a ruling grounded in fraud on the court can be attacked as void at any time, with no deadline for seeking justice. The con artists at UAB probably think my employment matter is way in the past, over and done with. They might be wrong about that. 

 

Ryan Stokes and his daughter