An Alabama judge has sealed the record in a $75-million lawsuit related to the North Birmingham Superfund bribery scandal, according to a report at EE News (Environment & Energy Publishing, owned by Politico). That means past and future documents in the case will be off limits to the press and the public.
Are the actions of Jefferson County Circuit Judge Tamara Harris Johnson justified under the law? Our research indicates the answer is no. Should news organizations and First Amendment advocates challenge the ruling, and should the public be outraged? Absolutely.
Former Drummond Company executive David Roberson sued his former employer and the Balch Bingham law firm, alleging they conspired to make him the fall guy in the 2018 Superfund criminal trial.
Drummond vigorously pushed for the lawsuit to be sealed, arguing that coverage from banbalch.com and Legal Schnauzer was inflammatory, prejudicial, and threatened to taint a potential jury pool. As one of the targeted journalists, I appreciate Drummond's contention that my blog's reach and influence is so widespread and powerful that it would make justice impossible for the company to obtain in the Roberson case. Drummond's court filings suggest two one-person blogs are a threat to a regional, national, and multinational coal giant. How to describe that? "Pure rubbish" comes to mind, for starters.
Is this a case of Alabama's "Big Mules" resorting to threats, intimidation, and underhanded court tactics to keep their secrets hidden and protect the corporate and legal status quo in a state riddled with white-collar corruption? Sure looks that way from here.
Consider this for irony: Drummond's arguments about the sanctity of Alabama's justice system come in a case where two members of the plaintiffs' team (Roberson himself and attorney Burt Newsome) have met with violence that could have been fatal. Has Judge Johnson voiced any concern about that? Two key figures in a case under her purview could have been killed, but has she called for an investigation or been anything other than oblivious? We wouldn't know because the case is sealed.
How wacky is all of this? Reporter Sean Reilly takes a crack at describing it for EE News:
Drummond's fortunes, like those of the coal industry generally, are now in decline, rankings by Forbes magazine indicate.
Whatever the company's eventual fate, part of its legacy will be unintended: via a corruption trial, an unprecedented, searing look into the political culture of a state where an oligarchy of business and agricultural interests often dubbed "Big Mules" has traditionally shaped policies including Alabama's tax structure and the scope of environmental regulations.
The case also exemplifies how influential companies prevail over poor minority communities. That dynamic is now meeting a new test: As a candidate, President Biden pledged to hold corporations accountable for pollution that disproportionately affects people of color. But as E&E News reported yesterday, that agenda could be stymied by both the reluctance of local regulators to take on prominent businesses and federal regulators' reluctance to aggressively intervene, as occurred in the Drummond air toxics case (Greenwire, March 22).
Three years ago, a federal jury convicted Roberson, the lobbyist, and Joel Gilbert, a onetime partner at the prominent Birmingham-based law firm Balch and Bingham LLP, of bribing a state legislator in a scheme to help Drummond avoid financial cleanup responsibility for a Superfund site in a mostly Black neighborhood in north Birmingham (E&E News PM, Nov. 19, 2018).
But their public trial also exposed the legal means that Drummond used to exercise its clout.
In 2014, for example, six of the state's House members at the time signed on to a letter drafted by Gilbert opposing the EPA proposal to add the site to the National Priorities List; that proposal, which remains in limbo, could leave Drummond on the hook for millions of dollars in expenses for remediating contaminated soil (Greenwire, Nov. 21, 2018).
Reilly then turns his attention to the Roberson civil matter:
While both Gilbert and Roberson were sentenced to prison time and lost their jobs, they remain free while waiting for the 11th U.S. Circuit Court of Appeals to rule on challenges to their respective convictions.
Other fallout from the scandal persists.
Roberson, alleging that he was a fall guy, filed a lawsuit in Alabama state court in 2019 seeking tens of millions of dollars from Drummond and Balch for "negligence, fraud and suppression." Balch has since been dropped from the litigation, although Roberson's lawyer is appealing that decision. Drummond has stated a variety of grounds for dismissing the suit. In court papers, Roberson alleged that Drummond was worried that cleanup costs for the Birmingham Superfund site could top $100 million.
But in a sign that media coverage — particularly in two blogs, Legal Schnauzer and Ban Balch & Bingham, that have chronicled the proceedings — is becoming a concern, Drummond this month filed a motion for confidentiality in the case "to prevent further prejudicial publicity of the pre-trial process."
On Friday, a judge agreed to seal the entire record at least through the trial. Roberson's attorney did not oppose the motion, her order indicates.
Drummond, which is headquartered in Birmingham, doesn't detail its finances. For 2018, however, Forbes ranked the company 165th in its roster of the nation's largest privately held companies with some $2 billion in sales. By last year, Drummond had dropped off the list entirely "due to declining revenues, as falling global demand for coal pushed prices down," the magazine reported last November.
Unlike many of its competitors, Drummond has so far avoided a trip to bankruptcy court. While its operations include a real estate development arm, the company's website proclaims a continuing passion for coal.
"We focus on our core strengths and avoid straying from our niche," the site says. "Our heart and soul is coal and we do that very well."
Drummond also seems to be pretty good at strong-arming judges. How else to explain Johnson's "confidentiality order," which veers wildly from established Alabama law?
What is the reasoning behind Johnson's order to seal? Here is the gist of it, from a link in the EE News article:
After hearing and considering sworn testimony offered by the Plaintiff and Defendants, hearing and considering arguments of counsel and reviewing and considering the aforementioned documents, along with the Alabama Supreme Court's guidelines in Holland v. Eads, 614 So.2d 1012 (Ala. Sup. Ct, 1993), this Court weighed the right of public access to judicial records with an individual's privacy interest. The Court FINDS that, notwithstanding the Plaintiff's "no objection" to the Defendant's request and after a full review of the aforementioned testimony and documents at this Hearing, the Defendant has proved by clear and convincing evidence that the information contained in documents and presented through testimony promote scandal or defamation; pose a serious threat of harassment, exploitation, and/or physical intrusion to the Parties in this action; and pose the potential for harm to third persons not parties to this litigation. Accordingly, this Court FINDS it necessary to SEAL the entire record of this case, including discovery, before trial and during trial. The Court will re-evaluate this determination after trial. It is hereby ORDERED that the ENTIRE FILE in the above captioned case is SEALED and MARKED AS CONFIDENTIAL. It is ORDERED that the Clerk of the Court is DIRECTED to ensure that the contents in this file are released ONLY to the counsel of record to the herein named Parties. It is ORDERED that counsel and Parties are PROHIBITED from disclosing any contents, documents or information contained within this file to the public, without permission of this Court.
How does that mesh with Alabama law? We will examine that question in an upcoming post.
(To be continued)