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Birmingham attorney Burt Newsome is seeking U.S. Supreme Court (SCOTUS) review of a case where he alleges individuals connected to the Balch & Bingham law firm conspired to frame him for a crime in an effort to steal a chunk of his law practice. As we noted in Part One of our series, SCOTUS is not likely to base its decision regarding Newsome's petition for a writ of certiorari on possible errors of fact or law by Alabama state courts. Rather, the nation's high court is most likely to hear cases where federal questions have been handled inconsistently, or contrary to SCOTUS precedent, in U.S. circuit courts or state supreme courts.
Even if SCOTUS refuses Newsome's petition -- and it takes up only 2.14 percent of cases it is asked to review each year -- Alabama state courts, especially those in Jefferson and Shelby counties, are not likely to come out of the case looking good. That is based on our assessment of the facts, as stated in Newsome's certiorari petition. In fact, the case emits such a foul odor that one wonders how Alabama courts managed to grant summary judgment and/or dismissal against Newsome -- while also hitting him with major financial sanctions. (Petition for certiorari is embedded at the end of this post.)
As we closed Part One, Newsome, proprietor of Newsome Law LLC in North Shelby County, had filed a lawsuit -- alleging false imprisonment, interference with a business relationship, and other torts -- against Balch & Bingham, its former attorney Clark Cooper, and alleged conspirators John W. Bullock, Claiborne Seier, and Don Gottier. The facts painted an ugly picture of law practice in Alabama, and the scene does not get any prettier as we continue our examination. At the heart of the controversy are a Dismissal and Release order (D&R) and Newsome's motion for expungement of his criminal case -- both in Shelby County. From the Newsome petitition:
In his objection to the expungement, Bullock argued that Petitioner Newsome had filed a civil action against him, and that the expungement should not be permitted because purportedly Newsome breached the terms of the release contained in the D&R order. Newsome, the government and Bullock appeared for a hearing on the motion. Initially, the court denied the expungement. Petitioner Newsome filed a timely motion to reconsider. Defendant Bullock again submitted opposition papers and the judge granted Newsome’s motion and entered an order of expungement. Shortly thereafter, the judge who ordered the expungement retired from the bench.
As the expungement issue took center stage in Shelby County, peculiar actions were taking place with Newsome's lawsuit in Jefferson County, with defendants being granted motions to dismiss or summary judgment:
After Petitioner Newsome was granted the expungement, he filed motions to reconsider in the civil action arguing, among other things, that because his case had been expunged, under Alabama law, the Defendants could not rely on the release contained in the D&R order. The civil court granted Newsome’s motion and vacated the judgments issued to the Defendants in the civil action.
Thereafter, Defendant Bullock filed papers in the criminal action seeking to use the records in Petitioner Newsome’s expunged file. Defendant Seier, who was not the complainant in the criminal case, filed papers to have Petitioner Newsome’s expungement reversed. Defendant Seier argued that Petitioner Newsome supposedly obtained the expungement based on false pretenses because he checked the boxes on the expungement form stating that he complied with all the conditions imposed by the court order of dismissal. Petitioner Newsome opposed the application arguing that Seier had no standing to seek a reversal of his expungement because he was not a party and was not even the complainant in the criminal action. Petitioner Newsome also argued that Defendant Bullock had apprised the judge of the civil action in opposition papers and at a hearing regarding the motion for expungement. Petitioner Newsome also argued that Defendant Seier’s motion was untimely and improper because the conditions imposed by the judge were the imposition of paying court costs and having no further arrests and the release, pursuant to the law, was distinct from the court-imposed conditions.
A new judge took over the criminal matter in Shelby County and reversed Newsome's expungement, but with an odd twist:
This purported order, however, was never file stamped and never entered in the State Judicial Information System (“SJIS”) in Alabama as required by Alabama law. Petitioner Newsome sought a Writ of Mandamus from the Alabama Court of Criminal Appeals arguing that the court order that the judge vacate the purported order because it was void based on numerous grounds including, Defendant Seier’s lack of standing to bring the motion to reverse the expungement, the motion was not brought in a timely or procedurally proper manner, and the fact that it was never formally filed made the order a nullity. The Court of Criminal Appeals noted that a Writ of Mandamus is reviewed under the abuse of discretion standard and denied the Writ based on this standard of review. Petitioner Newsome then filed a Writ of Certiorari, or in the alternative, a Writ of Mandamus with the Supreme Court of Alabama. On April 27, 2018, the Supreme Court of Alabama denied the Writ and ordered that the June 8, 2016 order be entered in the SJIS system.
Meanwhile, the civil matter in Jefferson County was taking some odd twists of its own:
While the expungement issues were being litigated, the Defendants Bullock, Cooper, Balch and Seier filed motions for summary judgment while Defendant Gottier filed a motion to dismiss. The Defendants provided self-serving attestations that, except for Cooper and Balch, the Defendants did not know one another and were not involved in any conspiracy. The Defendants asserted that there was no issue of material fact because a Verizon representative was deposed who stated a telephone number that appeared on the telephone records of Defendants Cooper, Bullock and Seier was purportedly a routing number used to connect calls from outside a caller’s home area and was not assigned to any individual customer. The Verizon representative, however, provided no documentary evidence regarding these statements. The telephone records indicate, however, that these Defendants all received phone calls from this number “on dates surrounding notable events in this case, including the date of Newsome and Bullock’s confrontation in the parking lot, the date of Newsome’s arrest, the date Cooper sent the email with Newsome’s mug shot to [the bank] executive, and the date the Newsome plaintiffs filed their complaint initiating the underlying action.” Defendant Gottier, who was brought into the lawsuit by amended complaint, asserted that this telephone number did not belong to him even though internet searches indicated that the telephone number did belong to him. Defendant Gottier asserted that he was a victim of identity theft regarding the telephone number. Newsome filed opposition papers which included an affidavit from the director of the North American Numbering Planning Agency in Washington, D.C. who attested that the telephone number belonged to Ciera Networking Systems, Inc. and an affidavit from a former Vice President of Sales at Ciera who stated the telephone number has a CIC code 9 which indicates it is a code for Ciera Networking Systems, Inc. and indicates that the telephone calls were from a prepaid phone card. Defendants made a motion to strike these affidavits.
Judge Carole Smitherman, in Jefferson County, granted the motion to strike, eliminating Newsome's evidence of coordination between and among the defendants. Smitherman proceeded to grant dismissal or summary judgment to all defendants and hit Newsome with more than $192,000 in sanctions under the Alabama Litigation Accountability Act. Alabama appellate courts upheld those rulings.