Former Drummond exec seeks order from Alabama Supreme Court, compelling Jeffco judge to rule on motions that have been sitting for more than a year

Tamara Harris Johnson

A former Drummond Co. executive is asking the Alabama Supreme Court to force a Jefferson County circuit judge to rule on motions in his $75-million lawsuit that alleges his former employer and the Balch Bingham law firm essentially made him the fall guy in the North Birmingham Superfund bribery scandal. David Roberson's conviction in the Superfund case is under appeal.

In his petition for a writ of mandamus, Roberson says Jeffco judge Tamara Harris Johnson has been sitting on some motions, without rulings, for roughly 14 months.
 From the petition:

The court held a hearing on May 29, 2019, and the hearing lasted about ninety minutes. At the conclusion of the hearing, Judge Johnson asked the parties to submit additional briefs on various issues . . .

No order was entered, and nothing further was filed until October 16, 2019 – when Balch filed a motion for a status conference because Judge Johnson had not ruled. . .

On December 20, 2019, the Robersons submitted a proposed order, hoping for a decision, but Judge Johnson took no action. As 2019 ended, this case had been under submission for over seven months, but Judge Johnson did not list the case on her Semiannual Report of Matters Under Submission for Six Months or Longer.

Meanwhile, Roberson and his wife/co-plaintiff, Anna, have not been able to conduct any discovery. From the petition:

On December 20, 2019, the Robersons submitted a proposed order, hoping for a decision, but Judge Johnson took no action. As 2019 ended, this case had been under submission for over seven months, but Judge Johnson did not list the case on her Semiannual Report of Matters Under Submission for Six Months or Longer. . . .

As of this filing date, . . . Judge Johnson issued only one order since the hearing on May 29, 2019 – the order denying the Robersons’ motion to recuse her. There is nothing more.

Why would a judge fail to rule on matters before her? That is hard to figure, but she clearly has an "imperative duty" to rule, under the law. From the petition:

Under Alabama law, a delay of more than six months in deciding a matter is presumptively unreasonable. Indeed, every judge must file a report, twice yearly, listing all “matters which have been under submission or advisement for a period of six months or longer.” Ala. Canons Jud. Ethics 3(A)(5). For any “matter or case” listed, “the report shall give ... the reasons for the failure of the judge to decide such matters or cases.” In the last two years, the Court of Civil Appeals has twice ordered judges to rule on matters that had been under submission for six months or less.

Do the Roberson's have a right to action on their motions? There seems to be little doubt about that:

Under the Alabama Constitution, “justice shall be administered without ... delay.” Ala. Const. § 13. The Rules of Civil Procedure secure the right to a “speedy ... determination,” Ala. R. Civ. P. 1(c), and the Canons of Judicial Ethics require a judge to act “promptly.” Ala. Canon Jud. Ethics 3(A)(5).

The Robersons' petition hints that Judge Johnson's inaction is an embarrassment to the justice system:

Judge Johnson has not acted promptly; she has not acted at all. Aside from denying the Robersons’ motion to recuse her, she has not ruled on any motion since May 17, 2019 – when she stayed discovery. This delay is abhorrent to the Alabama Constitution and the administration of justice. The Robersons have a “clear legal right” to a decision in their case, and Judge Johnson has “an imperative duty” to render one.

What a mess has Johnson made of this case? The petition makes it clear:

In summary, almost fourteen months have elapsed since the “first motions” were filed, and Judge Johnson has not ruled on any of those motions. Almost eight months have elapsed since the “second motions” were filed, and again, Judge Johnson has not ruled on any of those motions. The Robersons have a “clear legal right” to a decision from Judge Johnson.

With six of his convictions on ethics violations upheld, ex-Alabama House Speaker Mike Hubbard appears headed down a road that leads to a prison-cell door

Mike Hubbard

Alabamians could be forgiven if they think, "Mike Hubbard is never going to prison. He runs with the corporate elites, and they will make sure he does not pay for his crimes the way the rest of us would." After all, a Lee County jury convicted Hubbard four years ago on multiple counts of violating the state ethics law, and he has been out on appeals bond ever since. But Hubbard's road to legal perdition might have begun in earnest 10 days ago when the Alabama Supreme upheld six convictions against him -- while reversing five -- and the chances of Hubbard avoiding prison now appear to be virtually zero, according to a report at Alabama Political Reporter (APR).

Reporting under the headline, "Will Mike Hubbard ever go to jail? Yes. And likely soon," APR's Josh Moon writes:

Mike Hubbard is likely going to prison within the next couple of months.

Hubbard, the former Alabama House speaker, had his conviction on 11 felony ethics counts partially upheld last week by the Alabama Supreme Court. The justices overturned five of the charges and sent them back to the Alabama Criminal Court of Appeals for review, but upheld six of his charges.

And those six matter a lot.

Under the original sentence imposed by Lee County Circuit Court Judge Jacob Walker, Hubbard was set to serve four years in prison and eight years of probation. That sentence was structured in a manner that all but assured Hubbard would serve that time unless the entire verdict against him was overturned.

It wasn’t. And a source familiar with the ALSC’s opinion in the case told APR that the justices were fully aware that their opinion would not lessen Hubbard’s jail time.

Another factor now working against hubbard: The ALSC's ruling punts Hubbard's appeals bond out of the picture:

That ALSC opinion puts an end to Hubbard’s appeals bond that has allowed him to remain a free man as his case worked its way through the appeals process over the past four years.

According to the Lee County Circuit Court clerk’s office, once a final determination is made by the ALSC on charges that result in a sentence, that opinion is the final piece supporting the need for an appeals bond.

Basically, there are no additional avenues for appeal that could possibly result in Hubbard not serving his prison sentence, so the bond has to be revoked and Hubbard sent to prison.

Here is where the process gets down to the nitty gritty. Writes Moon:

Once Walker receives the certificate of judgment from the ALSC showing it upheld the counts that related to Hubbard’s sentence, that should prompt Walker to revoke the bond,  and Hubbard will be notified that he is expected to begin his prison term.

According to Scott Mitchell, the clerk of the Alabama Court of Criminal Appeals, that certificate of judgment can’t be issued by the ALSC until at least 14 days have passed. That span allows both the prosecution and defense time to submit requests for rehearings on ALSC’s opinion. Should either side do so, consideration of those requests by ALSC could add more time.

“It’s really hard to say (how long it might take) — it’s such a case-by-case thing,” Mitchell said. “It could be anywhere from weeks to a couple of months before we get it.”

It is also not uncommon for one side or the other to ask for an extension of time to file their requests for a rehearing, which would add additional time.

However, once that certificate is sent out by the ALSC, it should trigger Walker to revoke the appeals bond.

The Criminal Appeals Court will also have to review Hubbard’s case and issue a new decision that considers the ALSC’s opinion on the six reversed counts. That process is likely to take much longer.

“Again, a lot of factors play into that and it’s hard to determine how long any one case might take,” Mitchell said. “I’d say you’re looking at a few months at least.”

It will only add to the extraordinary length of this case.

Hubbard was convicted in June 2016 on 12 felony counts for using his office for personal gain and directing public business to his clients. Court testimony and evidence revealed Hubbard was making more than $600,000 per year in “consulting” contracts, mostly for work in areas in which he held no prior work experience.

Since his conviction, a team of attorneys working for him — and financed by his campaign funds and various other entities — have challenged every word of his conviction, accusing the prosecution of misdeeds and attacking the state’s ethics laws — which Hubbard helped write — as overly broad and vague.

Those appeals have been successful in getting half of the charges knocked down. But because Hubbard’s prison sentence was tied to only a couple of the specific charges, those decisions will not lessen his jail time.

Mike Hubbard's grand fall, which the Alabama Supreme Court has sealed, should teach about the dangers that lie at the crossroads of greed and power

Mike Hubbard

 
The Alabama Supreme Court's affirmance of six convictions against former House Speaker Mike Hubbard (R-Auburn) should serve as a cautionary tale about the dangers that reside at the intersection of greed and politics, state opinion writers say. It also should show the limitations of one-party voting, said one writer, but he sees no sign that Alabamians will absorb that lesson any time soon.


Bill Britt, of Alabama Political Reporter (APR), said justice was slow, but ultimately served, in the Hubbard case:

On Friday, April 10, 2020, the Alabama Supreme Court upheld Mike Hubbard’s conviction on six counts of felony ethics violations.

It was not a complete victory, but justice was served.

And even though the Court looked craven and reluctant in its ruling, it did, in fact, acknowledge Hubbard’s guilt and also maintained his sentence. He will receive a certification of guilt in the near future and will spend four years in jail for his crimes against the people of Alabama.

Hubbard did the one thing unacceptable in a democratic society; he betrayed the public trust by using his elected office for personal gain.

The idea of public trust holds that the true power in government lies with the people and that government officers are elected as their representatives, therefore when individuals use their office for personal benefit and not the public’s, they have broken the bond that gives them power.

Hubbard sought personal reward as a representative of the people, an inexcusable offense in a democratic republic.

Members of Hubbard's own party seem slow to grasp the gravity of his crimes, Britt writes:

For years and even today, there are Republicans in the state who believe that Hubbard should not have been prosecuted. Even Supreme Court Associate Justice Will Sellers wanted to let Hubbard walk free. Sellers, like many of his compatriots, seemed to believe that the office of the attorney general should have been pursuing Democrats, not fellow Republicans. This brand of partisan thinking holds true today in certain circles.

Hubbard was a talented politician, but power exposed his weakness.

Abraham Lincoln said, “If you want to test a man’s character, give him power.”

Hubbard failed that character test miserably, Britt writes:

Hubbard wanted a life grander than that of a humble public servant. His mentor, former-Gov. Bob Riley, warned him by asking in an August 2011 email, “Question now is DO YOU “WANT” to be Gov— or— make a lot of money: good thing is you could do either but I am not sure it’s possible to do both.

In an email earlier that Hubbard lamented his position as the most powerful man in state politics writing, “To be honest, I feel like I am failing my family by sacrificing the opportunity to make money in favor of a job that costs me money and a lot of grief.”

Hubbard’s was an ancient problem, “the lust of the flesh, and the lust of the eyes, and the pride of life,” that is what laid him low. He looked at the men around him who enjoyed wealth and privilege and lusted for the same lifestyle. Hubbard was a dismal failure in business and only succeeded on occasions through rigged bids and the help of more influential older men.

In every one of his crimes underlies a desire for more money, and as Speaker of the House, the lure of easy money was his undoing.

I spend nearly eight years tracking Hubbard’s crimes and wrongdoings. I hope this is the last time I ever write about him, but that is not a given.

A prime lesson from the Hubbard affair? Public officials should be aware of the company they keep, writes al.com's Kyle Whitmire:

Take this as a warning, Alabama lawmakers.

You, too, elected officials.

From the governor’s mansion to the town council, be warned.

If you break Alabama’s ethics laws, you may go to prison. It doesn’t matter how much power you have.

Nearly four years after a Lee County jury convicted Mike Hubbard of breaking ethics laws he helped pass, the former Alabama House speaker lost his last appeal — mostly.

In a messy opinion, with two justices recusing, and others concurring or dissenting for their own reasons, the Alabama Supreme Court upheld enough of the counts against Hubbard that he will have to spend some time in prison. The opinion kicks the case back to the Court of Criminal Appeals to figure out just how long he’ll be there.

That’s significant. Five years ago, Hubbard was the most powerful politician in Alabama. Soon he will be an inmate in one of the prisons the Legislature has spent decades neglecting.

Hubbard used his office to advance his personal business interests. That’s a fact now. There’s no “allegedly” attached to it. There’s no footnote saying if this survives appeals. He did it. He’s a crook. He’s guilty. And now he’s going to jail.

Will Alabama officials be slow to grasp that lesson? Probably, just as Alabama citizens fail to understand that voting reflexively for one party, no matter how corrupt it has proven to be, is not such a swift idea. Writes APR's Josh Moon in a piece titled "Mike Hubbard has taught us nothing":

Mike Hubbard is going to prison.

There is no glee in those words. There’s nothing happy or satisfying about them. A man did wrong and now a family will be without a father and a wife without a husband, and we’ll have one more body wedged into an Alabama prison for a few years.

Because Mike Hubbard, former speaker of the Alabama House and arguably the most powerful man in Alabama politics a few years ago, is without a doubt going to prison. According to sources familiar with the sentencing process, Hubbard’s original four-year sentence (and 16 years of probation) still stands, despite the Alabama Supreme Court graciously knocking down six of the 11 charges he faced.

Exactly when Hubbard will report to prison is a good question. The ALSC sent those six charges back down to a lower court to be considered again, so there’s a chance — maybe even likely — that Hubbard will again remain free on bond as he awaits that court’s decision.

But eventually, he’ll go. As he should.

Because Mike Hubbard broke the law.

In a perfect world, Hubbard’s crimes would be a wake-up call to Alabamians and Alabama politicians. The total exposure by Hubbard’s trial of greed and good-ol-boy politickin’ that goes on in Montgomery on a daily basis should have been enough to force voters to pay attention and force lawmakers to walk a finer line.

But that hasn’t been the case.

Instead, Alabama voters have done what they always do — go back to talking about football and voting for whoever registers for the popular party — and Alabama lawmakers have gone back to doing what they always do — stealing our money for themselves and their friends.

I don’t understand it. And I never will.

Hubbard’s case wasn’t a one-off, and you know it. Look at the people involved and the conversations they had — conversations through emails that were documented in court. They talked openly about schemes to get themselves and their friends more taxpayer money. They casually discussed ways that Hubbard, and other lawmakers, could use his office to generate more “consulting” contracts for himself.

In email after email, Hubbard whined about going broke and how the ethics laws, which he helped write, were preventing him from earning a living. He was making about a half-million bucks per year at the time.

A former governor, numerous lawmakers and some of the state’s top business leaders were all in on these conversations.

And let me tell you from experience — from walking those State House halls, talking to lawmakers and lobbyists and staffers and mistresses and wives and some of the biggest players in all of state politics: What Hubbard was doing happens EVERY. SINGLE. DAY.

The Alabama Supreme Court tried to treat Mike Hubbard with kid gloves, but it ultimately upheld six convictions, meaning the ex-speaker's road to prison started with grotesque financial incompetence

Mike Hubbard (The New Republic)

After siting on the case for roughly two years, the Alabama Supreme Court on Friday announced it had upheld six convictions against former House Speaker Mike Hubbard (R-Auburn), while reversing on five counts. That chops the total convictions from 12 that a Lee County Jury imposed almost four years ago, and it comes two years (August 2018) after the Alabama Court of Court of Criminal Appeals upheld all but one of the original 12 convictions. In all, the Supreme Court's findings come almost six years after Hubbard was indicted for alleged violations of the state ethics law.

The extended legal drama leaves a number of compelling questions:

(1) Q. Hubbard has yet to spend a moment behind bars, but with six felony convictions now firmly imposed against him, will he finally don an orange jumpsuit?

A: it's hard to see how he will escape prison time now. Hubbard's original sentence was four years, and given the five overturned counts, that could be reduced -- and we certainly can expect more stalling tactics from his attorneys. But time as a jailbird certainly appears to be in Hubbard's future. In fact, al.com reports the following:

Jenny Carroll, a professor at the University of Alabama Law School, said today the Court of Criminal Appeals has the option of reconsidering the five charges that were reversed by the Supreme Court or sending the case back to the trial court.

Carroll said the trial judge could re-sentence Hubbard now that six of the 12 charges he was initially found guilty of have been reversed.

The Court of Criminal Appeals or the trial court could revoke Hubbard’s appeal bond, which would require him to report to jail by a specific date, according to Carroll.

The former speaker has the option of filing a federal court appeal because he has raised constitutional issues, Carroll said.

(2) Q. Why did the Supreme Court wait so long on issuing the Hubbard opinion?

A:  From here, it looks like the court was stalling to come up with some way to let Hubbard skate. Ultimately, it appears, the case against Hubbard was so strong that they could find no way to let him off completely.

Josh Moon, of Alabama Political Reporter's (APR), writing last November about criminal charges against Limestone County Sheriff Mike Blakely (along with insights from Blakely's attorney, Robert Tuten), blasted the high court's handling of the Hubbard matter:

Cases like Blakely’s remind everyone that what’s happened in Hubbard’s appeal — the obviously political delays and phony hand-wringing — is shameful.

It has left judges and prosecutors and attorneys all over the state questioning what’s legal and what’s not. And as Tuten noted, it truly has put a number of verdicts in jeopardy.

All to protect a stone cold crook.

Look, we can debate a bunch of things in this state, but the fact that Mike Hubbard was 100 percent guilty of using his office for personal gain just isn’t one of them. The guy took a lucrative “consulting” contract with a pharmaceutical company, then instructed the House budget chairman to insert language into the budget that gave that company an exclusive deal, and then he voted to approve that budget.

If you look up “using your office for personal gain,” that’s the definition.

In other words, there was no legitimate reason for the delay, so the Supremes spparently were trying to grant Hubbard  a gigantic favor -- in the form of a "Get Out of Jail Free Card."

(3) Q: If the Supremes wanted to let Hubbard off the hook, why didn't they do it?

A:  I can only speculate on this for the moment, but this much we know: Alabama is a GOP-dominated state, but that dominance has hit shaky ground in recent years. In addition to Hubbard's ignominious exit from public office, former Gov. Robert Bentley and former Supreme Court Chief Justice Roy Moore were forced out amid allegations of corruption. Right-wing Birmingham law firm Balch Bingham and its corporate benefactor, Alabama Power, are under intense scrutiny from the North Birmingham Superfund scandal and other apparent misdeeds. Former Business Council of Alabama (BCA) chief Bill Canary, a longtime chum of GOP power brokers Karl Rove and Tom Donohue, was shown the door. Has the environment in Alabama, at least behind the scenes, changed to the extent that the Supremes felt it was too risky to let Hubbard off the hook altogether?

Here is a take on this question from APR's Bill Britt, writing last July:

From the beginning, Hubbard’s case was fraught with political intrigue as wealthy donors, political operatives, radio talk-show hosts, media-types and lawmakers worked to upend indictments brought by the Attorney General’s Special Prosecution Division.

Even now, many of those same forces seek to overturn Hubbard’s conviction.

In the last election cycle, some of Hubbard’s most ardent supporters gave heavily to the campaigns of the justices who are now charged with ruling on his appeal.

Legitimate media, however, over the course of Hubbard’s trial turned from tacit skeptics to hardened critics of Hubbard’s dubious deeds while leading the Republican House supermajority. Most lawmakers who paid blind obedience to Hubbard while speaker have now abandoned him and pray privately for a speedy end to the matter.

(4) Q. How did Hubbard get into such trouble in the first place? Isn't he smart enough not to run afoul of the very ethics laws he had championed?

A: This might be the most fascinating question of all. Published reports indicate the Hubbard case, at its heart, is a story of white entitlement, of a so-called businessman who couldn't even keep his family finances in order. He felt entitled to all kinds of extravagances that he couldn't afford. When Hubbard's personal balance sheet started looking grim, he turned to wealthy GOP supporters, in desperation, for help -- and that led to his ethics problems. In short, Hubbard touts his "pro business" credentials, but he's a bad businessman -- one who probably should not be entrusted with his own checkbook, much less the people's business.  Consider this from The New Republic's Joe Miller, in a 2016 article titled "Beyond Mike Hubbard: How Deep Does Corruption in Alabama Go?'" Miller focuses heavily on the relationship between Hubbard and Bill Canary:

And throughout the five years Hubbard held this power, Canary enjoyed a standing weekly meeting with him in the speaker’s office during legislative sessions, where they shaped the agenda for the entire state.

But they also talked about personal matters—especially the speaker’s financial woes. When he formally assumed the speakership in January 2011, Hubbard lost his private-sector job and was left with a handful of struggling businesses in Auburn, one of which was in arrears on its payroll taxes and on the brink of bankruptcy. He was drawing $60,000 a year from the state for his part-time legislator job—though that is almost 50 percent more than the average household earns annually in Alabama—and his wife Susan brought in about $150,000 from Auburn University, where she is a dean. In bank documents, the Hubbards reported a net worth of $8.8 million, with large holdings of stocks, several commercial properties, a large home in Auburn, a lake house, a vacation farm, and a beach condo in the Florida Panhandle, known by locals as the Redneck Riviera. But it wasn’t enough.

Mike and Susan Hubbard were worth $8.8 million, but they could not balance the books while living in east Alabama, where real-estate prices hardly are like those in Manhattan? Is it possible they could not afford a lake house, a vacation farm, and a beach condo -- to go with their large primary residence in Auburn -- but as white power brokers running in high-flying circles, they felt entitled to have such possessions?

Bottom line: Mike Hubbard now officially is a felon, and that will not go away: his case certainly is about criminality, but it started with financial stupidity and incompetence on a massive scale.

Under a U.S. Supreme Court case called Alabama v. Shelton, Carol's sentence of probation in Missouri "assault" case is invalid and due to be reversed

Ruth Bader Ginsburg

The suspended sentence that a Missouri judge placed on my wife, Carol, in a bogus "assault of a law enforcement officer" case is "invalid" and a "nullity," and it must be reversed,  according to U.S. Supreme Court (SCOTUS) precedent.

We already have shown that, by placing a suspended imposition of sentence (SIS) on Carol, Judge Jerry Harmison Jr. ensured there is no final, appealable judgment in the case and no conviction (even though Carol, contrary to fact and law, was found guilty). Now, we learn that the SIS and two-year probation Harmison imposed are unlawful and due to be vacated.

How many ways can one compromised judge screw up a case?

This all goes back to Missouri's denial of Carol's right to counsel, and the relevant law comes from the nation's highest court in a case styled Alabama v. Shelton, 535 U.S. 654 (2002). How rich is the irony that the cheat job heaped on Carol in Missouri would be -- or should be -- decided by a SCOTUS case that originated in Alabama?

Justice Ruth Bader Ginsburg (with dissents from -- surprise, surprise -- Antonin Scalia, Clarence Thomas, William Rehnquist, and Anthony Kennedy) wrote the opinion in Shelton. Here is it's central holding:

Held: A suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. Argersinger, 407 U. S., at 40. Pp. 660-674.

What does this mean for Carol's case?

(1) She was placed on probation, but a violation of its terms could lead to a jail term. That, SCOTUS found in its 2002 Shelton ruling, is not allowed under the Sixth Amendment;

(2) Carol at one point had an attorney -- public defender Patty Poe -- but when Poe bailed out of the case, jail was waived as a possible punishment, by law;

(3) Carol never had another attorney, and she never waived her right to counsel, so Harmison committed a huge blunder by adding probation to the equation -- and probation, by definition, means jail is on the table. And that, Justice Ginsburg found, is a no-no.

(4) Both Poe and Margaret Palmietto (the original judge in Carol's case) apparently have more functioning brain cells than Harmison, who took over after Palmietto recused -- or maybe Poe and Palmietto are slightly less corrupt than Harmison. Either way, Poe told us upon exiting that, with jail off the table, the court could only sentence Carol to a fine, community service, or some type of educational course. Palmietto, in her final days on the case, said multiple times in open court "it's just a fine" -- as if Carol should have no problem being fined for an offense she did not commit, even according to the written and verbal statements of the so-called "victim."

Carol Tovich Shuler

Where does the SCOTUS case have its roots? The answer is Etowah County, Alabama, (county seat is Gadsden), where LeReed Shelton represented himself and twice was found guilty of third-degree assault -- being sentenced to a suspended 30-day jail term and unsupervised probation. Shelton appealed, and the Alabama Supreme Court ultimately reversed his sentence, finding it invalid because he did not have counsel, violating his Sixth Amendment rights.

SCOTUS upheld the Alabama Supreme Court's finding, with these words from Ginsburg:

Defendant-respondent Shelton represented himself in an Alabama Circuit Court criminal trial. The court repeatedly warned Shelton about the problems self-representation entailed, but at no time offered him assistance of counsel at state expense. He was convicted of misdemeanor assault and sentenced to a 30-day jail term, which the trial court immediately suspended, placing Shelton on two years' unsupervised probation. The Alabama Supreme Court reversed Shelton's suspended jail sentence, reasoning that this Court's decisions in Argersinger v. Hamlin, 407 U. S. 25, and Scott v. Illinois, 440 U. S. 367, require provision of counsel in any petty offense, misdemeanor, or felony prosecution, Argersinger, 407 U. S., at 37, "that actually leads to imprisonment even for a brief period," id., at 33. The State Supreme Court concluded, inter alia, that because a defendant may not be imprisoned absent provision of counsel, Shelton's suspended sentence could never be activated and was therefore invalid. . . .

The Sixth Amendment does not permit activation of a suspended sentence upon an indigent defendant's violation of the terms of his probation where the State did not provide him counsel during the prosecution of the offense for which he is imprisoned. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point "result[s] in imprisonment," Nichols v. United States, 511 U. S. 738, 746; it "end[s] up in the actual deprivation of a person's liberty," Argersinger, 407 U. S., at 40. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow.

Carol was the victim of an uncounseled (and unlawful) conviction, and SCOTUS makes clear that her sentence must be reversed as invalid. Whether the dictates of the nation's highest court has any impact on Jerry Harmison Jr. -- or anyone else in Missouri's perverse "justice system" -- remains to be seen. But it's clear Carol's sentence is a nullity, meaning it is legally void and is based on . . . well, nothing.

Revelations about Roy Moore's taste for tender flesh raise questions about U.S. Senate race, plus integrity of the AL Supreme Court when Moore was in charge

Roy Moore
(From nytimes.com)

Yesterday's bombshell report that unmasked Roy Moore as a religious and political fraud --  one with a creepy taste for underage flesh -- caused many Alabamians to look forward. The first question that came to many minds probably was: "How will this affect 'Judge Roy's' chances in the special U.S. Senate election on Dec. 12, against Democrat Doug Jones? Could Roy actually lose in a Deep Red state, where he was the overwhelming favorite?"

Such questions are understandable, given the Alabama Senate race is attracting national attention, and election day is barely a month away. But citizens also should look backward and ask questions about the Alabama Supreme Court, which Moore "led" as chief justice.

Once Moore won his second term as Alabama's chief justice in 2012, evidence gradually mounted that the state's high court was riddled with corruption. An oft-heard refrain after Moore returned to the bench went something like this: "You might not agree with Roy's mix of religion and politics, but you have to admit that he has impeccable integrity and deep respect for the law. At least our courts won't be corrupt and favor the big-law special interests. The 'little man' finally will get a fair shake."

Heck, even I wanted to believe that -- especially since I had first-hand experience with Moore's opponent, Democrat Robert Vance Jr., and knew Vance was corrupt. Vance was (and is) a tool of the big downtown Birmingham law firms, such as Maynard Cooper and Gale and Adams and Reese/Lange Simpson. If I remember correctly, I actually voted for Moore in 2012; I sure as hell didn't vote for Vance.

It quickly became apparent that Roy Moore was unable -- or unwilling -- to lead a clean shop at the Alabama Supreme Court. Perhaps the most obvious signs of corruption on the Good Ship Roy came with glaringly unlawful rulings related to gaming. Another sign hit close to home for Mrs. Schnauzer and me, and it involves my unlawful five-month incarceration in Shelby County.

On the gambling issue, Alabama law is not complicated: Various counties had approved constitutional amendments allowing electronic bingo, and it is well settled that a constitutional amendment trumps any state statute that might designate e-bingo machines as illegal "gaming devices." The amendment in Macon County, home to VictoryLand, designated the sheriff to promulgate rules for the bingo games. When the sheriff determined the e-machines were a form of bingo -- and not illegal slot machines -- VictoryLand was set to roll under its owner, Milton McGregor.

Instead, Moore's Supreme Court went against its own precedent regarding constitutional amendments -- and usurped the will of Macon County voters and the authority of the sheriff --  to rule the VictoryLand machines were unlawful. That closed VictoryLand for more than three years, and Center Stage Alabama in Houston County was the subject of similar nonsensical findings.

Knowledgeable observers scratched their heads at the dumbfounding rulings emanating from Montgomery. How could the state's high court so blatantly issue rulings that were contrary to well-established law?

Well, we might now know the answer to that question. The Supreme Court rulings consistently favored GOP corporatist politicos -- Bob and Rob Riley, Luther Strange, Mike Hubbard -- who have been the beneficiaries of Indian gaming facilities (in Mississippi and Alabama) that wanted to close down their competitors in the private sector. The Supreme Court clearly was doing the bidding of the Riley Gang, but why was Roy Moore allowing this to happen? After all, his support comes from the Religious Right, not from the Pro-Business crowd.

Yesterday's report from The Washington Post almost certainly has its roots with supporters of Moore's opponent, Doug Jones. While Jones appears as a Democrat on the ballot, his most powerful support comes from corporate Republicans -- like Rob Riley, Karl Rove, and Bill Canary. What if Moore has known for years that his political enemies on the right held compromising information about him? What if he stayed silent on the gambling issues, in hopes it would help keep his secrets under wraps.

That might very well explain the Supreme Court's bogus rulings on e-bingo issues. It also might help explain what happened to me in fall 2013. That's when Rob Riley and lobbyist Liberty Duke filed a defamation lawsuit against me; my wife, Carol; and Legal Schnauzer. According to press reports, the Alabama Supreme Court appointed retired circuit judge Claud Neilson to hear the case, and he proceeded to have me thrown in jail, contrary to more than 230 years of First Amendment law.

Neilson's unlawful orders favored Riley and Duke at every turn. It was as if Roy Moore's Supreme Court had hand-picked a ringer to make sure Riley and Duke would get away with having me unlawfully incarcerated for five months. If Carol had not managed to elude capture -- allowing her to alert the press that I had essentially been kidnapped (without any sign of a warrant) from inside my own home -- who knows what would have happened. I continue to believe that if both of us were in custody, we would have been killed -- and the public would have had no clue what happened to us.

Did Roy Moore allow Claud Neilson to be appointed as a stooge, all because Moore was worried about dirt the Riley Machine had on him?

Perhaps we will learn for sure in the coming days. But we do know this: Rumors about possible dirt in Roy Moore's background have been floating around in Alabama for years. I doubt there is a journalist in the state who hasn't heard about them, although nailing them down for news stories proved difficult -- until The Washington Post broke through with yesterday's report.

The fallout going forward remains unknown. But the evidence looking backward suggests Roy Moore was a pathetically weak chief justice -- and e-bingo casinos (plus the thousands of Alabamians who lost jobs at them) have suffered; Carol and I have suffered, with our lives possibly put in danger. Alabama's image has suffered because both the e-bingo stories and my incarceration received national, even international, news coverage.

Regardless of what one thinks about The Washington Post report, this much can't be seriously disputed: Roy Moore was an ineffective, compromised chief justice. With longstanding rumors finally turning into headlines, he almost certainly would be an ineffective, compromised U.S. senator.

Orders in Rob Riley and Liberty Duke defamation lawsuit were void, including the one that sent me to jail

Claud Neilson

A recent Alabama Supreme Court ruling suggests all of the orders in the Rob Riley/Liberty Duke defamation lawsuit against my wife and me were void and due to be vacated. That includes the order that unlawfully sent me to jail for five months.

What happens when a court takes action against defendants over which it does not have personal jurisdiction? Specifically, what happens when defendants challenge service as improper or invalid, and plaintiffs fail to prove otherwise?

A case styled Ex parte Trust Company of Virginia (Ala. Sup. Ct., 2012) addresses those questions and illustrates the importance of making sure defendants are properly served with a complaint. If service is not proven to be proper, or "perfected" as judges like to say, the court essentially has no authority to act.

That means Alabama judge Claud Neilson had no authority to send me to jail on a contempt-of-court charge for allegedly violating a preliminary injunction and temporary restraining order (TRO) in the Riley/Duke case. Of course, we already have shown--and analysts from all corners of the political spectrum have agreed--that Neilson's orders were unlawful on First Amendment grounds. But now we know Neilson's actions were worse than unlawful; they were void because he had no authority to make them.

How do we know? Let's consider the words from Ex parte Trust Company of Virginia. That was an estate case in which the Trust Company of Virginia (TCVA) had been appointed conservator of property owned by a woman named Amy Falcon Morris. Ms. Morris had been declared incapacitated in 2008, and when she died in 2011, an Alabama probate court issued several orders against TCVA. The trust company filed a motion to vacate those orders, which the trial court denied. TCVA then sought an interlocutory writ from the Alabama Supreme Court, directing the lower court to vacate the orders for lack of personal jurisdiction.

The TCVA case is right on point with what happened to us. We filed a motion to quash service after Alabama deputy Mike DeHart conducted an unconstitutional traffic stop to give us court papers in the Riley/Duke case. TCVA filed a motion to vacate and we filed a motion to quash, but the issue is the same--we both challenged service, and the Alabama Supreme Court makes it clear what is supposed to happen in such cases:

TCVA argues that the probate court lacked personal jurisdiction over TCVA because TCVA was not named as a party in the probate proceeding and was not served with notice of the proceeding in the probate court. We observe that TCVA maintains that it was never served with process of the proceeding in the probate court or provided with proper notice of that proceeding. This Court has held: . . .

"When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally." Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983).

We made the same argument in our motion to quash. (See motion at the end of this post.) In the TCVA case, the trial court conducted a hearing on the service/jurisdiction issue. In the Volkswagenwerk case, three hearings on the issue were conducted, apparently because it involved complex issues of international service.

Either way, Alabama law requires a hearing for both parties to submit evidence, with the burden of proof on plaintiffs to show that service was performed properly. In our case, I was arrested and thrown in jail before ever receiving notice of a hearing--and, in fact, the record shows that no hearing was held, and Riley/Duke never were required to meet their burden.

What does it mean when plaintiffs fail to meet their burden once service has been challenged? The Alabama Supreme Court spells it out in TCVA. Ms. Morris' son, as administrator of her estate, was given an opportunity to prove service had been perfected. But he came up well short:

Mr. Morris, as administrator of the estate opened in the probate court, has not alleged any facts before this Court that would prove that he served the conservatorship, nor has he contested TCVA's allegation as to the absence of service of process. It is axiomatic that a court does not obtain personal jurisdiction over a party upon which service of process has not been perfected and proper notice has not been provided. Because there is no evidence before this Court that the conservatorship ever received service of process or proper notice, the probate court does not have personal jurisdiction over the conservatorship, and its orders directed to the conservatorship are void and due to be vacated.

Like Mr. Morris, Riley and Duke never met their burden to show that service of process was perfected and proper notice was provided. That means Judge Claud Neilson never obtained personal jurisdiction over my wife and me--and all of his orders directed to us are void and due to be vacated.

Is this profound? Well, I lost five months of my freedom because of an order from a judge who had no authority over me. My wife lost her husband for five months--and some might say that's not such a bad thing--but she also was terrorized for five months, fearful that she too would be arrested.

This adds more evidence to my claim that my arrest amounted to a state-sanctioned kidnapping--all because I write a blog that made a few powerful people uncomfortable.

I invite you to step into our shoes and ask yourself, "How would I feel if this was done to me and my family? How would I feel if a rogue judge ordered me or someone I care about to be kidnapped?"

Rob Riley Lawsuit--Quash Service by Roger Shuler

Supreme court outlaws e-bingo in Alabama as Mississippi casinos report worst numbers since 1997

Silver Star casino

The Alabama Supreme Court effectively outlawed electronic bingo in late 2014, not long after casinos in neighboring Mississippi reported their worst year since 1997. Is that a coincidence? Probably not. Is it a case of history repeating itself? Probably so.

Mississippi gaming interests long have worried about possible competition from Alabama. Republican felon Jack Abramoff admitted in his book that he spent $20 million to help defeat Democrat Don Siegelman and his proposed education lottery, a plan designed to protect $400 million in Mississippi Choctaw annual gaming revenue.

History teaches that Mississippi gaming bosses especially worry about Alabama competition when their own facilities aren't performing well. We also know that certain Alabama politicos, of the Republican stripe, tend to help their Mississippi buddies endure tough times.

Is that happening now with the Alabama Supreme Court's recent ruling on e-bingo? Let's look at some facts.

How bad have things been next door in Mississippi. The numbers aren't in for 2014, but the ones for 2013 were the worst since Bill Clinton was in the White House. Reports the Mississippi Business Blog, from a January 2014 article:

Last year was the weakest gaming revenue year for Mississippi casinos since 1997, according to numbers released today by the Mississippi Gaming Commission.

In 2013, the 30 Mississippi casinos collected $2.136 billion in gross gaming revenue, which is money leftover after players’ winnings are subtracted from wagers. That’s the lowest since 1997 when 24 casinos collected $1.984 billion. The high mark for revenue was $2.891 billion in 2007. The 2013 total represents a 5.1 percent drop from the $2.251 billion collected in 2012.

Mississippi casino figures have been falling steadily since 2007 as more states legalize gaming in an effort to keep their gaming dollars at home. That competition has hurt the Mississippi River casinos (and especially the Tunica area), which have seen revenue fall from a high of $1.589 billion in 2007 to $1.072 billion in 2013.

Those figures do not include information from the Mississippi Choctaws' three casinos, which do not have to report to the state commission. Reports for tribal gaming, from Casino City's Indian Gaming Industry Report, tend to run about two years behind schedule--and the 2012 numbers paint a grim picture for Indian facilities, too. Revenue growth at Indian facilities in 2012 fell behind non-tribal facilities for the first time in almost two decades, according to a report from the Jackson Clarion-Ledger:

Casino City’s report shows revenue at Mississippi’s three Choctaw Indian casinos declined 6 percent in 2012.

The Mississippi Band of Choctaw Indians announced in December that a new loan and refinancing of another loan would allow it to fully reopen its Golden Moon Hotel and Casino and renovate Silver Star Hotel and Casino.

Golden Moon has operated only on weekends since the start of 2009, when its operating days were slashed during the depths of the recession as casino visitorship dwindled.

How did Mississippi Indian gaming compare to tribal facilities around the country? Only Connecticut saw a steeper revenue decline.

If the Alabama Supreme Court is trying to help the Choctaws in a time of need, it probably isn't the first time relief has come from Alabama officials. Former Governor Bob Riley, the beneficiary of Abramoff's millions in 2002, picked a curious time to launch raids against non-Indian facilities in Alabama, claiming electronic-bingo there was illegal.

We reported on Riley's actions with a couple of posts--"Mississippi Choctaws were hemorrhaging money at the time of Riley's raids in Alabama" and "Choctaws faced huge debt payment when Bob Riley launched bingo raids in Alabama."

Attorney General Luther Strange, another GOPer who claims to be anti gambling, has continued Riley's policy of raiding privately held gaming facilities in Alabama. And the Alabama Supreme Court has consistently sided with Riley and Strange, at times ignoring the court's own precedent.

The high court's recent ruling to unilaterally ban electronic bingo is particularly curious because it seems to have no basis in fact or law. Is it based largely on the fact that tribal casinos in Mississippi are struggling? Does our all-Republican court somehow benefit from Choctaw cash that has been flowing into Alabama for more than a dozen years?

We suspect the answer to both questions is yes.

Confusion reigns as Alabama high court finds electronic bingo illegal not long after hinting it's legal

VictoryLand casino

The justices of the Alabama Supreme Court seem convinced that electronic bingo is legal--except, of course, when they are declaring it illegal. Is it any wonder the public is confused?

In a case styled Houston County Economic Development Authority (HEDA) v. State of Alabama, the high court recently found that bingo can be played only outside of "machines and electronic circuitry." In reaching this conclusion, the Supremes pointed to Barber v. Cornerstone, 42 So. 3d 65 (2009), a case in which they concocted a six-point test to define bingo.

But get this: Just one week after releasing the Cornerstone decision, the high court issued a ruling that indicates the machines at VictoryLand casino in Macon County are legal. That case is styled Macon County Greyhound Park Inc. v. Knowles (2009). In that case, a woman named Sherry Knowles claimed she had won a jackpot of at least 40,000,000 credits, while VictoryLand argued that the play was not a valid win.

In the Knowles ruling, the Supremes state that bingo in Macon County is allowed by Amendment No. 744 to the Alabama Constitution, and they note the prominent role the county sheriff plays in overseeing the game. From Knowles:

Amendment No. 744 further authorizes the sheriff of Macon County to “promulgate rules and regulations for the licensing and operation of bingo games within the county.” In force at all times relevant to this action were the “Second Amended and Restated Bingo Regulations for the Licensing and Operation of Bingo Games in Macon County” (“the sheriff's regulations”), promulgated by the Macon County sheriff pursuant to Amendment No. 744.

The stated purpose of the sheriff's regulations is to “adopt the policy of the Attorney General in limiting the conduct of Class B bingo gaming in Macon County thereby allowing the Sheriff to more effectively regulate and enforce the proper conduct of bingo games.”

The high court even notes that it is up to the sheriff to define bingo. From Knowles:

“Bingo” is defined in § 1 as

“any game of chance known as bingo, including any bingo game permitted by federal law, (whether or not electronic, computer, or other technologic aids are used in connection therewith) which is played for prizes, with cards bearing numbers or other designations, and [in] which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards. The bingo game must incorporate the typical features of traditional bingo, including, but not limited to, a grid of five horizontal and five vertical squares, numbers randomly selected, and a preordained winning pattern. Alternative entertaining displays such as spinning reels and other video or mechanical graphics are permitted but must not affect game play. Just as in traditional bingo halls, players on electronic bingo machines must compete against one another. Consequently, the electronic machines must be linked so that players are competing against each other. . . . "

That is the Macon County sheriff's definition, and the Alabama Supreme Court seems to have no problem with it. The definition clearly states that bingo can be played in an electronic or computerized format, and the Alabama Supreme makes no objection to that. At no point do the Supremes state that Sherry Knowles was playing on an illegal machine.

A reasonable person could argue that Knowles trumps Cornerstone. After all, Cornerstone was issued on November 13, 2009, while Knowles was released on November 20, 2009, The cases involve a number of "disparate issues" (as lawyers like to say), so they are not exactly on point with each other. But it's clear that Knowles came after Cornerstone, and at the time of the Knowles ruling, the Alabama Supreme Court considered the machines at VictoryLand to be legal.

How deep does the confusion on electronic bingo get in Alabama? In a January 7 memo, Attorney General Luther Strange cited the HEDA ruling and encouraged state prosecutors to enforce laws against illegal gambling. Governor Robert Bentley responded by saying the state does not have the resources to relentlessly pursue gambling cases.

Some observers have suggested that Strange's memo indicates his office plans to step back from pursuing gambling cases. Writes Brian Lyman, of the Montgomery Advertiser:

However, Strange's memo was more reserved about what role, if any, the attorney general's office — which has engaged in high-profile activity against gambling over the past four years — would continue to have.

Strange said his office would continue to provide answers to legal questions, but told D.A.s to contact the newly-formed Alabama Law Enforcement Agency (ALEA) for "assistance or additional manpower" in enforcing the state's gambling laws.

Mike Lewis, a spokesman for Strange, said Thursday the memo was meant to instruct "local law enforcement on what is legal and illegal and encouraged to follow the guidelines and the law." However, he declined to say whether the attorney general's office would continue to take the lead on gambling prosecutions.

What does the future hold? That is anyone's guess, and clarity does not seem to be coming from courtrooms or law firms. The Alabama Supreme Court is not the only legal entity in the state that can't seem to get its story straight about electronic bingo. We know of at least one other one.


(To be continued)

Alabama Supreme Court embraces judicial activism, and betrays conservatism, to outlaw electronic bingo

Center Stage Alabama casino

One of the primary tenets of postmodern conservatism is that "judicial activism" is bad, very bad. The theory goes that the executive and legislative branches of government should make laws while the judicial branch should play a restrained, interpretative role.

In short, the conservative doctrine holds that judges must never "make law" from the bench, but should craft rulings grounded in law that already exists.

Someone should get that message to the justices, all Republicans, who comprise the Alabama Supreme Court. That's because the Alabama Supremes recently engaged in one of the most blatant acts of judicial activism any of us ever are likely to see. In a unilateral action that is based on--well, pretty much nothing--the high court effectively outlawed electronic bingo in the state. As Dave Barry would say, "I'm not making this up."

Did this involve any legislative or executive action? Nope. Was it grounded in any legitimate legal precedent? Nah. Is it somehow based in Alabama's archaic and outdated constitution? Not on your life. In fact, it flies in the face of constitutional amendments that voters approved in various counties around the state.

Does it resolve the controversy that started in 2008 when then governor Bob Riley, the beneficiary of millions in Indian gaming money, decided to launch a string of raids against non-Indian bingo facilities in the state--and has continued under Attorney General Luther Strange, another Republican who has benefited from large chunks of Indian campaign cash? It sure looks that way to us.

The ruling in question, styled Houston County Economic Development Authority (HEDA) v. State of Alabama, was issued on November 21, 2014, and involved the Center Stage Alabama casino near Dothan. (The opinion is embedded at the end of this post.) Buried on page 30 of the 40-page opinion is the following:

In accordance with the foregoing, we reiterate today that the game traditionally known as bingo is not one played by or within an electronic or computerized machine, terminal, or server, but is one played outside of machines and electronic circuitry.

Did expert witnesses testify to this effect in the HEDA case? Heck, no. The state, which asked for the machines to be declared unlawful, presented no expert witnesses. The only experts on the record were from HEDA, and they testified that the machines did, in fact, play bingo and were lawful under the relevant constitutional amendment.

So how did the Alabama Supremes come to their conclusion? Citing no law as precedent, they declared that expert testimony was not necessary--and pretty much pulled the ruling out of their collective, berobed rear ends.

Oh, the Supremes did trot out their usual case--Barber v. Cornerstone, 42 So. 3d 65 (Ala., 2009)--in an effort to prove that bingo can be played only on paper cards, preferably by people who are at least 95 years old and have blue hair, white hair, or no hair. Almost as an aside, the Supremes declare in HEDA that the six-point test outlined in Cornerstone now applies to all other local bingo amendments in the state.

That's funny because Cornerstone itself doesn't say that. As we've shown in a previous post, Cornerstone clearly was about narrow issues regarding a preliminary injunction in Lowndes County. Back in September 2013, we wrote the following:

We invite readers to click on the link above and read the entire Cornerstone ruling. Taken as a whole, it states that the court was focusing narrowly on: (1) The electronic-bingo facility in Lowndes County; and (2) The lawfulness of the preliminary injunction against the Riley defendants.

That's it--nothing about any other bingo facility in Alabama, nothing beyond a right or wrong ruling on a preliminary injunction.

But now the Alabama Supreme Court cites Cornerstone to essentially outlaw electronic bingo in counties where voters have approved bingo-related constitutional amendments? And those amendments were crafted through the legislative process? And in some locations, electronic bingo was played lawfully for up to five years before Bob Riley came along, with Indian cash dripping out of his pockets, to launch a crusade against non-Indian gaming facilities?

Heck, we've even found a Supreme Court case, issued AFTER Cornerstone, that seems to uphold the provisions of the constitutional amendment in Macon County and finds the e-bingo machines at VictoryLand are legal. Specifically, the case seems to uphold the amendment's language that it is for the county sheriff, not the courts, to define bingo and set rules for its play.

Why should the HEDA ruling scare the bejeebers out of Alabamians, even those who don't give a hoot about bingo or gambling of any kind? The ruling clearly is based on the whims and personal biases of the Supreme Court justices--and not on any legal precedent. In fact, it circumvents the law-making process and overrides the will of voters who approved constitutional amendments.

That hints that Alabama's high court is tainted on the subject of electronic bingo. It also suggests that some of the Indian gaming money that flowed to Bob Riley and Luther Strange has found its way into the pockets of Supreme Court justices.

Thanks to the reporting of The Montgomery Independent's Bob Martin, we already have seen frightening signs of collusion between the Riley team and members of the Supreme Court. In fact, we've written about that issue multiple times, in 2009, 2010, and 2013. (See here, here, and here.)

The HEDA ruling suggests that something of that sort still is going on. If that's the case, it would represent a criminal conspiracy that, if unmasked by the U.S. Department of Justice, would rock Alabama government to its foundation.

At first glance, the HEDA ruling seems to be about little more than bingo. But we suspect something much more sinister is going on beneath the surface.

HEDA v. Alabama

Riley Tries To Hold Legal Schnauzer In Contempt Of Court On Preliminary Injunction That Doesn't Exist Under Law

Judge Claud Neilson

Alabama Republican Rob Riley has filed documents that seek to have me held in contempt of court for violating a preliminary injunction related to certain posts at this blog.

Under Alabama law, however, no preliminary injunction exists because we were not given proper notice of a hearing on the matter. In fact, Riley's own court documents prove that no lawful injunction exists.

How do we know? It's spelled out in an Alabama Supreme Court case styled Southern Homes, AL v. Bermuda Lakes, LLC, 57 So. 3d 100 (Ala., 2010)  As you can see, the ruling was issued in 2010, so it's not ancient law. A Yale Law School graduate like Rob Riley should be able to find it. But apparently that kind of research is beyond Mr. Riley's legal skills--and those of retired Circuit Judge Claud Neilson, who issued the injunction.

The Southern Homes case involved a preliminary injunction that a circuit judge issued related to the development of 87 acres in Madison County, near Huntsville. The order enjoined Southern Homes from taking any action related to its dispute with Bermuda. But the Alabama Supreme Court found the preliminary injunction was unlawful because Southern Homes did not receive sufficient notice of a hearing, pursuant to Rule 65 of the Alabama Rules of Civil Procedure (ARCP). From the opinion:

Southern Homes argues, among other things, that it received insufficient notice under Rule 65(a)(1), Ala. R. Civ. P., of the hearing on Bermuda's motion for a preliminary injunction, in violation of Southern Homes' due-process rights. We agree.

Rule 65(a)(1), Ala. R. Civ. P., provides that "[n]o preliminary injunction shall be issued without notice to the adverse party." Rule 65(a)(1) does not specify how much notice must be given to the adverse party before a preliminary injunction can be issued. However, as the United States Supreme Court has held in interpreting the federal equivalent of Rule 65(a),2 the notice required by Rule 65(a) "implies a hearing in which the defendant is given a fair opportunity to oppose the application and to prepare for such opposition." Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 434 n. 7, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). See also Alabama Republican Party v. McGinley, 893 So.2d 337, 344 (Ala.2004) (holding that "[t]he hallmarks of procedural due process are notice and `the opportunity to be heard "at a meaningful time and in a meaningful manner."'

The Alabama Supreme Court, in Southern Homes, made a clear distinction between the notice required for a temporary restraining order and a preliminary injunction:

In Granny Goose Foods, the adverse party was given notice by telephone on the same day it was served with all the documents and the hearing was held, and the adverse party's counsel was present in the courtroom and argued on behalf of the adverse party at that hearing. The United States Supreme Court recognized that Rule 65(b), Fed.R.Civ.P., like Rule 65(b), Ala. R. Civ. P., authorizes a trial court to issue a 10-day temporary restraining order ("TRO") without notice to the adverse party. The Court compared the lack of any requirement of notice in Rule 65(b) for a TRO with the explicit notice requirement for issuing a preliminary injunction under Rule 65(a), Fed.R.Civ.P. The Court held that the "informal, same-day notice" that was provided to the adverse party in Granny Goose Foods, "desirable though it may be before a restraining order is issued, is no substitute for the more thorough notice requirements which must be satisfied to obtain a preliminary injunction of potentially unlimited duration." 415 U.S. at 434 n. 7, 94 S.Ct. 1113. See also Ciena Corp. v. Jarrard, 203 F.3d 312, 319 (4th Cir.2000) (holding that "[b]ecause a preliminary injunction is unlimited in duration, its entry always requires notice to the opposing party sufficient to give that party an opportunity to prepare an opposition to entry of an injunction").

In other words, the issuance of a preliminary injunction is serious business--and it requires that an adverse party be able to prepare opposition. Lawyers for Southern Homes had roughly two hours' notice of the preliminary-injunction hearing. According to Rob Riley's own documents, we had less than 24 hours' notice. (See petition at the end of this post, plus Riley's motion to seal the record.) The Alabama Supreme Court makes it clear in Southern Homes that such notice is not sufficient:

In the present case, it is undisputed that Southern Homes had less than two hours' notice of the hearing on Bermuda's motion for a preliminary injunction and that Southern Homes' counsel participated in the hearing only by telephone. Southern Homes was not able to submit written arguments in opposition to the motion or to submit evidence to support its arguments. Also, under the circumstances, Southern Homes could not call any witnesses. . . .

Southern Homes had to be given notice of a hearing in which it was given a fair opportunity to oppose the motion for the preliminary injunction and to prepare for such opposition. Southern Homes simply was not given such notice. Therefore, under these circumstances, we conclude that Southern Homes did not have a fair opportunity to oppose the motion for a preliminary injunction, and, thus, the circuit court exceeded its discretion in issuing the preliminary injunction.

Like the Southern Homes lawyers, we were given no opportunity to submit written arguments, submit evidence, or call witnesses. That means Judge Neilson exceeded his discretion in issuing a preliminary injunction. And it means we were denied due process.

All of that doesn't even take into account the fact we were unlawfully served with the complaint, and any preliminary injunction violates long-held U.S. law forbidding prior restraint of free speech.

How does a Yale-educated lawyer not know this, not to mention a retired Alabama judge? One can only imagine.

Rob Riley Contempt by Roger Shuler

Rob Riley Seal by Roger Shuler

Forced Exit Of Judge Young In VictoryLand Case Butchers Precedent On "Personal Bias" Standard

Judge Thomas Young

During the prosecution of a 1987 capital-murder case, an Alabama judge made statements from the bench that indicated he believed the defendant's actions to be "heinous, atrocious, and cruel." The judge then overrode the jury's verdict of life in prison and sentenced the defendant, Joe Cecil Duncan Jr., to death.

Duncan eventually received a retrial and filed a petition for writ of mandamus, asking the Alabama Supreme Court to force the trial judge off the case because his statements from the bench had demonstrated prejudice. The Supreme Court refused, stating that the judge's remarks did not represent the kind of "personal bias" that would "reasonably call his impartiality into question" and force recusal.

That appellate ruling, styled Ex parte Duncan, 638 So. 2d 1132 (Ala., 1994), established black-letter law that governs recusal of an Alabama judge. 

A citizen might assume that the justices on today's Alabama high court are well acquainted with the finding in Ex parte Duncan. After all, their predecessors established the law, and under the doctrine of stare decisis, the current-day justices are bound to abide by it.

So how did the high court release an order last week that obliterated the binding precedent of the Duncan case? How did the court force Macon County Circuit Judge Thomas Young off the VictoryLand forfeiture case when no "personal bias" was even alleged, must less shown?

The only answer we can fathom is that our all-Republican high court is so corrupted by political and financial considerations that it no longer takes its legal duties seriously.

Last Friday's ruling in Ex parte State of Alabama makes clear that Attorney General Luther Strange makes no showing, or even allegation, of personal bias against Judge Young. (See full order at the end of this post.) Rather, Strange repeatedly disagrees with Young's interpretation of the law regarding the AG's request for a search warrant at VictoryLand.

The Supreme Court follows suit, claiming Young erroneously applied the law in several instances and exhibited a lack of deference toward the high court itself. The court then issues the writ of mandamus, forcing Young off the case so that "the appearance of justice will be preserved." In reaching such a conclusion, the Supreme Court cites a litany of federal cases that are not applicable or binding in the VictoryLand matter.

What is applicable and binding? It's Ex parte Duncan, but the high court goes to considerable lengths to ignore it. We won't make the same mistake here.

At the heart of the Duncan case was the murder of a state trooper named Elizabeth Cobb. The trial involved disturbing evidence, and the judge apparently allowed himself to get carried away with statements from the bench. Here, from an appellate ruling some seven years after the murder, is a portion of what he said about the circumstances surrounding Elizabeth Cobb's murder:

You know, I just ask myself one simple question; if we got news that they were slaughtering cattle this way in the stockyard, what would the reaction be? Would we say that that's heinous, atrocious and cruel? I would.

Many citizens probably would agree with the judge's statement. But that's not what we expect to hear from someone who is charged with being an impartial arbiter from the bench. Neither is this:

Now the murder in this case was premeditated, it was diabolical, methodical, heartless, cruel, cold, deliberate, it was planned. It was a planned execution and slaughter of an innocent young lady while she quietly and peacefully waited unsuspectingly on the sacred grounds of a little country church on the Sabbath evening. . . . There was no excuse, there was no justification, for a vile, conscienceless, pitiless murder.

The judge left no doubt about where he stood--and you can see where the defendant might not want him to preside over a retrial. But the Alabama Supreme Court found in Ex parte Duncan that the judge's statements did not disqualify him. That's because his statements came in his judicial capacity, not from an extrajudicial source that might lead to personal bias. From the Supreme Court's 1994 ruling:

Therefore, for Duncan to demonstrate a clear right to the relief sought by the mandamus petition, he must show the appearance of impropriety by showing that the alleged bias, hostility, or prejudice is "personal" rather than "judicial":

The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.

The high court then took it a step farther:

In this case, we cannot say, as a matter of law, that the trial judge's statements in and of themselves show bias, hostility, or prejudice toward Duncan; therefore, we cannot say that Duncan has demonstrated a clear legal right to have the trial judge remove himself. The trial judge's statements arose out of a judicial proceeding, not from an extrajudicial source; and although the trial judge's expressed opinions may have been better left unsaid, in our opinion the remarks he made do not show bias, hostility, or prejudice against Duncan arising from a "personal," i.e., extrajudicial, source.

In concluding, the Supreme Court said the burden was on Duncan to make a clear showing that recusal was required--and he failed to reach that high bar. The same bar was set for Luther Strange, and like Duncan, he failed to reach it.

Like Duncan, Strange based his mandamus petition on Judge Young's statements and actions from the bench. But he never came close to showing that Young had a "personal bias" that could be traced to an "extrajudicial source." Strange, in fact, did not even try to make such a showing.

How did the Alabama Supreme Court get around that slight problem. By ignoring Ex parte Duncan altogether and pretty much creating law from the bench. 

In other words, our Republican justices did exactly what they vow, as "strict constructionists," to never do--they legislated from the bench.

Actually, they probably did far worse than that. We will stipulate that the justices on Alabama's high court are not ignorant, and they surely know how to conduct relatively simple legal research. If that's the case, it means they knew the correct legal standard for recusal in the VictoryLand forfeiture matter and chose to ignore it. That can only mean external forces are influencing the court's decisions, which would constitute fraud, obstruction of justice, conspiracy, and perhaps other federal crimes.

Many Alabamians reflexively have voted Republican in recent years on statewide judicial races--probably from a misguided notion that conservative justices will be tough on street crime. We now know that creates an environment where justices themselves can engage in white-collar crime that endangers us all.

VictoryLand Judge Young Recusal by Roger Shuler