Wednesday, September 1, 2021

Ben Franklin poem provides apt analogy to state courts' butchery of Burt Newsome case, requiring SCOTUS review to ensure due process lives in Alabama

David Clifford Holland

Part Five

David Clifford Holland, a veteran civil-rights litigator from New York City, compares Alabama courts' baffling handling of the Bert Newsome case to a long-ago poem that Benjamin Franklin apparently wrote. The poem presents an apt analogy to the Newsome matter, and Holland uses it to begin his amicus brief urging the U.S. Supreme Court (COTUS) to review the Newsome case. Writes Holland:

The confounding procedural history of the state-court proceedings (in Newsome) are reminiscent of the old poem most often attributed to Benjamin Franklin, entitled: “For The Want Of A Horseshoe Nail.” That poem analyzes a sequence of simple events in a mythical wartime supply chain to deduce how a simple failure can lead to widescale catastrophic results. It reads:

“For the want of a nail the shoe was lost,

For the want of a shoe the horse was lost,

For the want of a horse the rider was lost,

For the want of a rider the battle was lost,

For the want of a battle the kingdom was lost,

And all for the want of a horseshoe-nail.”

Poor Richard’s Almanack, 1789; See also, of_a_Nail

Holland filed his brief on behalf of  The Church of the Lukumi Babalu Aye, Inc., of Hialeah, FL. (The full brief is embedded at the end of this post.) Here's how Holland describes the church's interest in the Newsome matter, while noting a central matter in the case:

The Church of the Lukumi Babalu Aye, Inc. (“The Church”), is a not-for-profit corporation organized under Florida law in 1973.1 The Church and its congregants were the subject of a favorable prior ruling from this Court in the matter known as, The Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

The Church is committed to the freedom of expression and exercise of religion. It actively advocates for those individuals and entities which have been denied significant Due Process in their dealings with municipal and governmental entities as well as Courts in the jurisdictions where they reside.

Petitioners have been harmed by the rulings of the Circuit Courts in Shelby and Jefferson Counties which were ratified by the Supreme Court of Alabama. Their injury stems from the simple abdication of those Courts from enforcing the requirements of Rule 58(c) that all Orders be uploaded and docketed with the SJIS system. Abidance by that Rule makes an Order official, final, and appealable. Because all the appellate courts of Alabama relied upon an undocketed “implicit” order which was not entered into the SJIS system as required by Rule 58(c), it would appear that there was no valid final Order from which an appeal could be taken. Lacking a valid final and appealable Order in the SJIS system, the appellate rulings and ramifications thereof which overturned the Trial Court’s expungement order and vacation of the Dismissal and Release Agreement appear to be unripe and devoid of critical Due Process protections guaranteed under the Fourteenth Amendment to the United States Constitution. The Church of Lukumi Babalu Aye, Inc., submits this Amicus Curiae brief in support of the Petition for a Writ of Certiorari.

How nutty was it for Alabama courts to rely on an undocketed "implicit" order that had not been filed with the SJIS? Holland explains, again noting the Franklin poem's application to the bizarre proceedings at hand:

As discussed below, that insightful lesson about the cascading impact of a simple failure of operations is adaptable to the instant matter. The procedural history and resulting harms caused by the successive courts' failures to abide by Rule 58(c) demonstrate the vast magnitude of Due Process violations that resulted - all for the want of observance of the SJIS docketing requirement under the Alabama Rules of Civil Procedure.

Applied here, that causality chain and cascading impact of constitutional impingement goes something like this:

For the want of a docketed SJIS Order, the expungement order was improperly lost,

For want of the expungement order, the D&R agreement releasing remote third parties was reinstated,

For want of abidance to Rule 58(c), an undocketed Order was drafted, but not filed, 

For want of filing, the undocketed Order was void and appeals could not be properly taken,

For want of proper appeals, the subsequent rulings from the Circuit Courts of Shelby and Jefferson Counties, as well as the Supreme Court of Alabama, were flawed and Due Process was lost, 

All for the want of compliance with Rule 58(c) of the Alabama Rules of Civil Procedure.

Can, and should, the nation's highest court do anything to correct this chain of gaffes in Alabama? Yes, says Holland:

Rule 58 of the Alabama Rules of Civil Procedure mandates the procedures by which a court order is  rendered and docketed. More specifically, a Judge may render an order or judgment by: (1) separate written document, (2) by including the order or judgment in a judicial opinion, (3) by endorsing upon a motion the words “granted,” “denied,” “moot,” or words of similar import, and dating and signing or initialing it, (4) by making or causing to be made a notation in the court records, or (5) by executing and transmitting an electronic document to the electronic-filing system. Ala. R. Civ. P. 58(a).

Once rendered, that order or judgment rendered must then be docketed in the following manner: “Upon rendition of an order or a judgment as provided in subdivision (a)(1-4) of this rule, the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deemed “entered” within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System. An order or a judgment rendered electronically by the judge under subdivision (a)(5) of this rule shall be deemed “entered” within the meaning of these Rules and the Rules of Appellate Procedure as of the date the order or judgment is electronically transmitted by the judge to the electronic-filing system. The entry of the judgment or order shall not be delayed for the taxing of costs. Interest upon a judgment runs from the date the court renders the judgment.”

All of that seems straightforward enough. So why couldn't Alabama courts get it right in the Newsome case? Writes Holland:

It is clear from Rule 58(c) that the uploading of an Order or Judgment to the SJIS system is required to provide both public notice of it and the imprinting of the Clerk’s electronic time stamp upon it to officially commence the time periods in which appellate or other action must be taken with regard to it. That rule provides consistency in Court proceedings and ensures the finality of orders so that appeals may be properly taken. That Rule is very similar to the purposes of Rule 58 of the Federal Rules of Civil Procedure to ensure notice to the parties that an Order or Judgment has become “official” and the ability to take timely appeal from it thereafter.

The protracted procedural history of the instant matter in the Alabama state courts makes clear what results when the docketing requirement of Rule 58(c) is abandoned.

Petitioner Newsome litigated and obtained an expungement order from the Circuit Court, Shelby County. See, That Order was docketed in the SJIS system and effectively caused all of the records from Mr. Newsome’s arrest and prosecution to be expunged from his record. The Judge who issued that Order in the system at the Circuit Court, Shelby County, Alabama, retired soon thereafter. As a direct consequence of the expungement order, the Dismissal and Release Agreement was also vitiated as it was derivative of the then expunged criminal records and proceeding. As such, the D&R agreement became a nullity and whatever restrictions against Petitioners filing civil or criminal claims against ascertainable and unknown third party private citizens who were directly or indirectly related to the criminal case were no longer applicable. That SJIS docketed expungement order was the subject of extensive subsequent litigation.

Motion and litigation practice continued and that expungement order previously docketed in the SJIS system was supplanted by a subsequent ruling reversing the expungement order which consequently reinstated the prohibitions on civil actions contained in the D&R Agreement. However, that reversal order was never docketed in the SJIS system as required by Rule 58(c). A non-docketed order should not be deemed final and appealable until such time that it is entered into the SJIS system in accordance with Rule 58(c). But, the lack of compliance with Rule 58 was not deemed to be a barrier to several subsequent appeals which wended their way through the Circuit Courts of Shelby and Jefferson Counties, as well as the Supreme Court of Alabama. On June 8, 2016, the Supreme Court ordered that the previously undocketed order reversing the expungement order be entered into the SJIS system. The Supreme Court of Alabama sidestepped the failure to abide by Rule 58(c) and instead found that there was an “implicit” order which overturned the expungement order which was valid and binding even if not docketed in the SJIS system.

By so ratifying that defalcation of the Alabama Rules of Procedure, the Supreme Court countenanced and sanctioned the fact that several appeals of significant constitutional magnitude, including the imposition of substantial attorneys fees, were permissible even if the single order which set the cascading violations in motion was not final or ripe for an appeal. This error was not de minimis – it was catastrophic – all for the want of abidance of the docketing requirements set forth in Rule 58(c) of the Alabama Rules of Civil Procedure.

This Court should reverse the Supreme Court of Alabama and remand the matter back to state court with instruction to abide by the last order properly docketed with SJIS in accordance with Rule 58 - the Order granting expungement to Petitioner Newsome and vacation of the Dismissal and Release Agreement.


Previously . . .

 * Part One: Birmingham lawyer Burt Newsome seeks U.S. Supreme Court review in case involving allegations of a plot to frame him for a crime and ruin his practice

 * Part Two: Lawyer Burt Newsome asks SCOTUS to untangle Alabama courts' messy handling of case alleging he was framed for a crime in plot to ruin his practice

* Part Three: Alabama courts trampled Burt Newsome's due-process rights -- the kind of errors that happen around the country and require U.S. Supreme Court intervention

* Part Four: Amicus brief in Burt Newsome case shows courts are skeptical of release agreements in criminal cases because they can provide cover for police misconduct



Anonymous said...

That Ben Franklin was one smart dude. Wish he was around these days.

legalschnauzer said...

Franklin probably would make an interesting guest for someone like Anderson Cooper or Rachel Maddow. Of course, many would denounce Franklin as a "libtard" these days.

Anonymous said...

SCOTUS can't worry about due process when they are busy trying to ban abortion with underground.

legalschnauzer said...

That abortion ruling, which I guess was really no ruling at all, is a frightening use of the court's 'shadow docket." Regardless of how you feel about abortion rights, the court's business should be conducted in the light of day, with hearings and rulings etc. This was just a lesson in cowardice.

legalschnauzer said...

So much for any notion that John Roberts has integrity or the toughness to control the Trumpists on the court.

Anonymous said...

What's the excuse for a judge failing to file an order with the state's official recording system? I can't think of one. A monkey would know to do that, right?

Anonymous said...

We have due process in Alabama?

legalschnauzer said...

Hah! Good point, @10:08. It's been on life support for quite a while.

Keith and Stephanie Wilson said...

Please send Ben to Mississippi for the same lack of due process We too have a misuse and the very same type of dismissal orders to protect the criminals in positions of power even if they are lower on the food chain. There will always be a bigger fish when they go to such great lengths!😂

legalschnauzer said...

For those who might have missed the SCOTUS abortion ruling, here is the gist of it, from Politico:

The Supreme Court early Wednesday let a Texas state law take effect that allows private citizens to sue to uphold a ban on the procedure after six weeks of pregnancy, potentially creating a new template for states to impose strict restrictions on the procedure.

The court’s decision to not act on an emergency petition from Texas abortion clinics comes as the justices prepare to more broadly reconsider the right to an abortion it established almost 50 years ago. In May, justices agreed to review Mississippi’s ban on the procedure after 15 weeks of pregnancy — a direct challenge to Roe v. Wade, the landmark 1973 decision that legalized abortion nationwide. Those arguments are expected later this year, with a ruling in 2022. . . .

Beyond outlawing abortion as early as six weeks into a pregnancy, the Texas law, signed in May, would deputize citizens to file civil suits against abortion providers or anyone who helps facilitate the procedure after six weeks, such as a person who drives a pregnant person to the clinic. Individuals found to have violated the law would have to pay $10,000 to the person who successfully brings such a suit — a bounty abortion rights advocates warn will encourage harassment, intimidation and vigilantism.

Keith and Stephanie Wilson said...

Meanwhile, aka southern states continue to criminalize pregnant women for opioid addiction. A catch 22 if female. If you are a minor male or female - up for grabs with federal funding! Just a total sickness across these states.