Founder of legal ethics knew unpublished opinions were dubious, saying they often cover up opinions that falsify facts or make "disingenuous use" of case law

Monroe H. Freedman
(From hofstra.edu)

How bad are "Do Not Publish" opinions, which is what many litigants receive when they receive a bad result at the trial-court level (district court) and seek an appeal in a federal circuit court? I believe they are a conduit for unlawful opinions that must be covered up, lest they be included in official reporters and wreak havoc with actual precedential law. It turns out I was in some mighty fine company when I voiced that opinion here at Legal Schnauzer; a giant in the field of legal ethics agreed with me.

Hofstra University law professor Monroe H. Freedman, who died in January 2015 at age 86, was considered the founder of legal ethics as an academic field. "He invented legal ethics as a serious academic subject,” famed Harvard Law professor Alan M. Dershowitz told The New York Times. “Prior to Freedman, legal ethics was usually a lecture given by the dean of the law school, which resembled chapel: ‘Thou shalt not steal. Thou shalt not be lazy.’ But Monroe brought to the academy the realistic complexity of what lawyers actually face. . . .

"He was on my speed dial for everything I ever did involving legal ethics. And I brought him to my classes every single year: A legal education without Monroe Freedman was incomplete.”

Now, we will use Freedman to help educate the public at large. That's because the death last year of U.S. Supreme Court Justice Antonin Scalia raises ethical questions about unpublished opinions -- such as the favorable one Scalia friend John B. Poindexter received in an employment discrimination case.

Freedman was a brassy, provocative type, and he didn't mind taking on the legal establishment. Unpublished opinions in federal courts bothered him -- and that means he likely would have been appalled by my experience in the U.S. Eleventh Circuit Court of Appeals (which covers Alabama, Georgia, and Florida). He also probably would have known that unpublished opinions short-change many litigants, across the country. Freedman's words from a 1989 speech indicate he knew that too many court rulings amounted to fraud -- with unpublished opinions providing cover:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.

I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

How refreshing to see an eminent scholar admit that "Do Not Publish" opinions are a pox on our justice system. It's likely the situation only has gotten worse in the 28 years since Freedman spoke those words. I know from first-hand experience that unpublished opinions, indeed, are a fraud -- a mechanism to favor certain parties by producing unlawful rulings that do not foul the body of actual law that is recorded in various reporters.

I've had three cases on appeal before the Eleventh Circuit, and each time the trial court's unlawful findings were upheld -- and the opinion was stamped "Do Not Publish" in the upper right-hand corner. (See Shuler v. Ingram & Associates, Shuler v. Swatek, and Shuler v. Board of Trustees.) Why was that stamp there? It's because the opinions were so contrary to black-letter law that reporting them would have created havoc in a field that supposedly is grounded in the consistency of legal precedent.

As for the case involving Scalia's pal, John B. Poindexter, this is from a March 2016 Legal Schnauzer post:

Multiple news outlets have reported that John B. Poindexter, owner of Cibolo Creek Ranch and the Houston-based manufacturing firm J.B. Poindexter and Co., received a favorable outcome when the U.S. Supreme Court refused to hear an appeal on an employment-discrimination case involving one of his subsidiaries. According to news reports, Scalia's expenses-paid hunting trip to Poindexter's ranch was a "gift."

Was it a possible kickback for court-related favors the justice had provided? The answer to that question is not clear, but it is clear that Poindexter's favorable treatment in the discrimination case (James Hinga v. MIC Group) started long before SCOTUS refused to hear the case.

How? The U.S. Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) upheld a trial court's dismissal of Hinga's discrimination claim on summary judgment. Here is the alarming part: The Fifth Circuit issued an unpublished opinion in Hinga. Based on our experience and research, that can be a sign a ruling is suspect.

We aren't the only ones who hold that opinion of unpublished opinions. A scholar who was considered the "father of modern legal ethics" also had a low opinion of unpublished opinions.

That scholar, of course, was Monroe Freedman. If I had gone to law school, he's the kind of professor I would hope to have. If I were a law professor, he's the kind I would hope to be.

We will provide details about our experiences with "Do Not Publish" opinions in an upcoming post. The subject hits close to home at the moment because we have two pending appeals in the Eleventh Circuit now -- one in our "Jail Case" and one in our "House Case."

If you ever have a case go before a federal appellate court -- in the Southeast or anywhere else -- you could wind up getting a "Do Not Publish" opinion. You likely will not find it pleasant, I assure you.


(To be continued)

West Virginia Supreme Court gets dragged into the light for exhibiting the kind of brazen sleaze and dishonesty that infests many American courts

Justices of the West Virginia Supreme Court: Loughry (R),
Walker (R), Davis (D), Workman (D)

Update at 11:20 p.m.: The West Virginia House of Delegates has voted to impeach all four justices on the state's Supreme Court. Impeached were Allen Loughery (Republican), Robin Jean Davis (Democrat), Margaret Workman (Democrat), and Beth Walker (Republican). Republicans control the West Virginia House of Delegates.



Headline: West Virginia House panel votes to impeach entire state Supreme Court


When I read the above Yahoo! headline, my first thought was, "This has to be from The Onion. No way it could be real." In fact, the headline seemed so out of left field that it made me LOL.

Is it possible for a state high court to be so corrupt that the whole bunch deserves to be tossed out of office? After 11 years of writing this blog about judicial chicanery, I know the answer is, "Yes, absolutely." Is it likely that any authoritative body would hold such a high court accountable." Sadly, the answer to that question is "Absolutely not."

Stunningly, it turns out, the West Virginia story is real. In fact the state House of Delegates meets today to consider articles of impeachment the judiciary committee already has adopted. If the full House approves the articles, the state Senate will conduct a trial.

This could be a rare step forward for justice in a country where too many courts are permeated with crookedness, dishonesty, and an utter lack of transparency. Legal Schnauzer is one of the few news sites that devotes serious journalism to the unlawful acts of corrupt judges, and we have been attacked relentlessly -- even thrown in jail -- for it.

I see only one downside to the events in West Virginia: The justices are in deep doo-doo for essentially being thieves. I would prefer they be held accountable for the kind of bogus rulings too many American courts routinely produce -- and far greater legal minds than mine agree that is a problem.

What's at the heart of the West Virginia story? The judiciary committee has charged justices with "maladministration, corruption, incompetency, neglect of duty in certain high crimes and misdemeanors." That sounds serious. Here are details, from a report at Talking Points Memo (TPM):

The West Virginia House of Delegates is taking the extraordinary step of considering the impeachment of the entire state Supreme Court in a scandal over $3.2 million in office renovations.

The Republican-led House was meeting Monday to discuss 14 articles and make recommendations for the four remaining justices. Any articles approved by the House would be tried by the Senate.

Suspended Justice Allen Loughry is under federal indictment and named in eight impeachment articles, including allegations he lied about taking home a $42,000 antique desk and a $32,000 suede leather couch. Other articles involve upgrades of the offices of justices Margaret Workman, Robin Davis and Beth Walker.

The fifth justice, Menis Ketchum, retired and agreed to plead guilty to a federal wire fraud count involving the personal use of state-owned vehicles and fuel cards.

Were these grifters also issuing bogus opinions? I'd say you can count on it. Will they be held accountable for that? Don't hold your breath. Such an inquiry would require a lot of work, and it's unlikely West Virginia legislators want to devote that much effort to the scandal.

That's unfortunate because stealing is bad, but the issuance of crooked rulings is, by far, the No. 1 way judges cheat the public, at every level -- municipal, state, and federal. I'm not the only one who thinks so. Consider these words from a 1989 speech by the late Monroe Freedman, a Hofstra University law professor who was considered the father of legal ethics as a subject for academic study:

"Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

-- Monroe H. Freedman, founder of legal ethics

If Monroe Freedman knew the situation was dire in 1989, imagine how bad it is today -- almost 30 years later.

We applaud the West Virginia legislators for taking action against thieving judges. The lawmakers could do the entire country a huge favor by going beyond that to examine the crooked rulings these "justices" likely were churning out.

"Do Not Publish" stamp on appellate opinion might be a sign that you got screwed--and that Antonin Scalia's wealthy friend got a fishy favorable outcome

Eleventh Circuit Court of Appeals
in Atlanta

Why should an unpublished opinion favoring Antonin Scalia's wealthy hunting buddy--the man who owned the ranch where Scalia died last month--raise eyebrows?

It's because unpublished opinions enhance the possibility of judicial corruption--and the likelihood that it will be covered up. Being tagged "unpublished" means they are not likely to see the light of day--and if they do, they won't be taken seriously. Hence, the possibility for hanky-panky, which is likely to favor connected individuals--such as Scalia's friend John B. Poindexter.

Even one of the nation's leading experts on legal ethics considered unpublished opinions to be a dubious practice. (More on that below--and in an upcoming post.) We agree with him and here, based on research and personal experience, is why:

If you ever are involved in a federal-court case and decide that the trial court's finding is wrong and must be appealed, you will go through a lengthy and expensive process and likely wind up with an opinion that upholds the trial court and carries a "Do Not Publish" stamp in the upper right-hand corner.

A 2009 report in The National Law Journal found that more than 85 percent of opinions issued in the Eleventh Circuit (covering Alabama, Georgia, and Florida) are stamped "Do Not Publish." The Fourth Circuit (Virginia, West Virginia, North Carolina, South Carolina, and Maryland) had the highest percentage of unpublished opinions (95 percent). From 2000-2008, the national rate for unpublished opinions topped 81 percent.

In theory, "Do Not Publish" opinions allow appellate judges to decide that certain cases have no precedential value and can be struck from the official record, so as not to clutter up the federal reporters that carry binding case law. In reality, unpublished opinions can be used to cheat litigants, especially every-day citizens who, courts probably assume, can't understand legal writing anyway.

I know because I've had it happen to me three times. Contrary to what federal judges might think, many regular folks can read simple declarative sentences. That, plus the ability to conduct relatively simple online research, is enough to allow you to understand many court opinions--if you take the time to read them closely, without allowing your eyes to glaze over.

Am I a lone voice, howling in the wilderness about this issue? Not by a long shot. The Web site justicedenied.org published an article in 2006 titled "Non-published and non-precedential opinions stealthily harm the innocent." From the article:

Use of non-published opinions, which with very rare exceptions are non-precedential, has reached the point that they are a significant factor affecting the handling and outcome of state and federal civil and criminal cases.

The innocent are one class of litigants affected by the surreptitious and pervasive use of nonpublished opinions. They are likely affected more profoundly than any other identifiable group, because non-published opinions are being used by judges (and prosecutors) as a tool to deny under the cover of darkness the very thing the courts are not just touted as offering, but which is their very reason for existing — to offer litigants the opportunity for “justice. . . .”

Any institutional procedure that undermines the likelihood that a person will be fairly and impartially treated is unacceptable in a society committed to observing “justice” as a real and vibrant guidepost, and not just a meaningless catchphrase intended to placate the masses of people who will never find out how illusory of a concept it can be within the four corners of a courtroom.

Whew, I wish I had written that. Those are some of the most powerful words ever published here at Legal Schnauzer. And Justice Denied did not stop there. It quoted the late Monroe H. Freedman, who was professor and former dean at the Hofstra University School of Law. The following words are from a 1989 speech, so you can only imagine how bad the situation is now:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.

I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

That's not a "crazed blogger" talking. Those are the words of a law professor and former dean who lectured annually for 30 years on legal ethics at Harvard Law School. You can't get much more eminent in the field than that, and Monroe Freedman pulled no punches about the reality of modern courtrooms.

Heck, some judges have recognized profound constitutional issues that unpublished opinions raise. From The National Law Journal:

In 2000, the 8th Circuit went so far as to declare that a circuit rule allowing unpublished opinions without precedential value violated Article III of the Constitution. See Anastasoff v. U.S., 223 F.3d 898 (8th Cir., 2000). Judge Richard S. Arnold’s opinion held that the “judicial power” in Article III, though undefined, is limited and that courts do not have the power to issue decisions—whether published or unpublished—without precedential value, because precedent is the very foundation of the common law system. Although later vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000), the decision generated much debate among judges and legal scholars.

Even the U.S. Supreme Court has recognized the problems inherent with unpublished opinions. Again, from The National Law Journal:

The Supreme Court has criticized the practice of issuing unpublished decisions in consequential cases. Reversing an unpublished 4th Circuit decision, the Supreme Court “deem[ed] it remarkable and unusual” that, in holding an Act of Congress unconstitutional, the court of appeals “found it appropriate to announce its judgment in an unpublished per curiam opinion.” U.S. v. Edge Broadcasting Co., 509 U.S. 418, 425 n.3 (1993). Similarly, Justice John Paul Stevens’ dissent in County of Los Angeles v. Kling, 474 U.S. 936, 938 (1985), denounced the 9th Circuit’s decision not to publish its opinion as “plainly wrong,” likening it to “spawning a body of secret law.”

I would argue that all federal appeals are "consequential" to the parties involved, and that all appellate opinions should be published and kept in reporters. That would go a long way toward forcing appellate judges to issue honest and legally sound opinions. I also would point out to Justice Stevens that the Ninth Circuit hardly is alone in "spawning a body of secret law." In reality, an alarming number of appellate judges create a body of rogue opinions, which do not represent actual law at all. I know it, Prof. Monroe H. Freedman knew it--and now, you know it.

The late Prof. Monroe H. Freedman

How does this work in the real world? I'm going to show you exactly how "Do Not Publish" opinions were used to cheat my wife and me on federal appeals--not once, but three times. My hope is that this information will help readers understand what is happening if they find themselves in similar circumstances someday.

I will link to the opinions in each of my cases--such appellate rulings can be easily found on Google Scholar--and then briefly describe how each opinion is flawed and contrary to binding precedent. That goes to the reason that "Do Not Publish" is stamped on such opinions--they conflict with the actual law, and if published in reporters, would create mass confusion for lawyers, judges, and litigants. It would be like introducing a cancerous cell into an otherwise healthy body; if such a "cell" is published, and then multiplies with other rogue "cells," havoc ensues--and you no longer have a healthy body of law.

By the way, the Eleventh Circuit requires judges to issue opinions. It used to have Rule 36-1, which allowed for affirmances without opinions. But that rule was rescinded in 2006, supposedly because the court terminated very few cases in that fashion. Other circuits have varying rules, but in the Eleventh Circuit you are entitled to an opinion.

You are not, however, entitled to an honest, or legally justified, opinion. And if your opinion has "Do Not Publish" in the upper right-hand corner, that's a sign it might conflict with the actual law--meaning you've been screwed, just as I have been.

(To be continued)

Take a ride on a rocky tour of our experiences with the U.S. Eleventh Circuit, where justice often goes to die under a load of crap called "Do Not Publish" opinions

"Do Not Publish" appellate opinions
 often provide cover for corrupt
trial judges like William M. Acker Jr. 

"Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

-- Monroe Freedman, founder of legal ethics


Join me on a brief tour of our experience with "Do Not Publish" opinions in the Eleventh Circuit Court of Appeals. We've shown that the late law professor Monroe H. Freedman found such opinions often are a sham, designed to cover up findings that bear no resemblance to the facts and law governing the case.

My wife, Carol, and I know, from unpleasant, firsthand experience that Freedman was right. In fact, we have two pending matters before the Eleventh Circuit, related to our "Jail Case" and "House Case," and our No. 1 concern is that the ruling will come with "Do Not Publish" stamped in the upper right-hand corner. Without even reading the opinion, that will tell me we've been screwed.

We've had three similar experiences already, and it disgusts us to think taxpayer dollars are being wasted on opinions that "bear no relationship whatsoever to the cases that have been filed and argued before the judges." Those aren't my words. They come from Monroe H. Freedom, who is considered the father of modern legal ethics as a academic subject.

I won't address everything the court got wrong in our cases, focusing only on the primary unlawful findings that forced the court to put the "Do Not Publish" stamp on them. Given that 82 percent of the circuit's cases wind up with unpublished opinions, you are likely to have a similar experience if you live in Alabama, Georgia, or Florida and ever have a federal issue go to appeal:


(1) Shuler v. Board of Trustees of the University of Alabama, et al., 11th Cir., 2012 (Do Not Publish)

Issues at stake -- Allegations of discrimination, and First Amendment violations, related to my termination as an editor at the University of Alabama in Birmingham (UAB), where I had worked for almost 20 years.

Primary unlawful finding in trial court -- Rule 56 of the Federal Rules of Civil Procedure (FRCP) and binding Eleventh Circuit law (see Snook v. Trust Company of Georgia, 859 F.2d 865, 11th Cir., 1988) hold that a court cannot consider summary judgment until the parties have had an opportunity to conduct discovery. Federal rules require a court to order a discovery conference and set a schedule to govern the completion of interrogatories, depositions, requests for production of documents, and the like.

Trial judge William M. Acker Jr. did none of those things. He granted summary judgment to the university, without the first bit of discovery being conducted. He did it, even though I filed three documents informing the court that discovery not only was outstanding, it hadn't been conducted at all. That cannot happen under the law, as outlined in Snook: "This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests."

I cited Snook over and over in trial-court documents. Did that have any impact on Acker, a Reagan appointee who now is 89 years old? Nope. After telling me in open court that he was going to cheat me, Acker did just that.

What the appellate court did about it -- A three-judge panel simply lied about its own holding in Snook--and it lied about my actions in the trial court. Snook holds that a party simply needs to notify the court that discovery has not been completed -- in this case, discovery had not even started -- and that invokes the protection of Rule 56(d). I filed proper notification in three separate documents, but Acker ignored each one. And the appellate panel covered for the trial court by writing the following: "Shuler never filed a motion under Rule 56(d) and did not identify any discovery relevant to the grounds for summary judgment."

How gross is this con job? You can read my Rule 56(d) motion here, and I filed two other documents alerting the court that discovery had not begun, had not even been scheduled. You can read my petition for an en banc hearing here, and it outlines everything the appellate panel got wrong. Naturally, my en banc petition was denied.

Why this opinion had to be stamped "Do Not Publish" -- Nothing is profound about Snook. I'm sure every federal circuit has similar case law because it's a matter of common sense: You can't determine that a case should be summarily dismissed, or allowed to go to trial, until both parties have been allowed to gather facts that support one outcome or another. In Bill Acker's world, at least in my case, court is a "fact-free zone." My case was decided without a single fact being entered into the record. And the 11th Circuit essentially said, "That's perfectly OK, even though we know it conflicts with Snook. Big deal. Due process and equal protection of the law mean nothing to us."

A quick check of Google Scholar shows that Snook has been cited as recently as Dec. 2, 2015. That means it still is binding precedent, and it probably will be binding precedent as long as federal courts exist in the Southeast. It's that fundamental, so essential to any notion of fair play and justice in our courts. The Eleventh Circuit's ruling in Shuler overturns Snook -- and if put into the official record, that would throw the circuit into chaos. That's why the opinion in my case had to be marked "Do Not Publish."


(2) Roger and Carol Shuler v. Swatek, et al., 11th Cir., 2012 (Do Not Publish)

Issues at stake -- Allegations that a sheriff's sale related to our house was unlawful, violating our rights to due process and equal protection.

Primary unlawful finding in trial court -- Judge Abdul Kallon, citing the Rooker-Feldman doctrine, found that he did not have subject-matter jurisdiction to decide the case. Rooker-Feldman holds that lower federal courts, other than the U.S. Supreme Court, generally should not sit in direct review of state-court decisions. The doctrine involves a number of exceptions, and several of them applied to our case. Perhaps most importantly, Rooker-Feldman applies only to "final state-court judgments." (See Nicholson v. Shafe, 558 F.3d 1266, 11th Cir., 2009.) We weren't seeking review of a final state-court judgment; we were seeking review of a sheriff's sale. In fact, the record showed there was no state-court judgment related to the sheriff's sale.

Federal courts have found that federal claims can be barred if they are "inextricably intertwined" with a state-court judgment. (See Casale v. Tillman, 558 F.3d 1258, 11th Cir., 2009.) Casale held that "A claim is inextricably intertwined if it would effectively nullify the state court judgment . . . or it succeeds only to the extent that the state court wrongly decided the issues." Our claim did not seek to nullify a state-court judgment, and it did not claim that a state court wrongly decided any issue. It claimed that the Shelby County Sheriff's Department unlawfully conducted a sale that caused us to lose full rights to our house.

(From paralegalstudies247.com)

The trial court ruled incorrectly on numerous issues, and I will mention briefly only two others: (1) Rooker-Feldman does not apply to anyone who was not a party to any underlying state-court action. (See Lance v. Dennis, 546 U.S. 459, 2006.) Mike McGarity, our troublesome and criminally inclined neighbor, sued only me in an underlying state matter; he did not sue my wife, Carol, who jointly owned the house subject to a sheriff's sale. That means Rooker-Feldman did not block her claim, but Kallon blocked it anyway; (2) Kallon dismissed our claims against McGarity and his attorney, William E. Swatek, on the grounds that they were not state actors for the purposes of a civil-rights claim. But the U.S. Supreme Court has held that private individuals who act jointly with state officials are deemed to be acting under color of state law. (See Lugar v. Edmondson Oil Co., 457 U.S. 922, 1982.) Our complaint alleged that Swatek and McGarity conspired with state officials to deprive us of our property rights, so that element of our claim could not lawfully be dismissed.

What the appellate court did about it -- The three-judge panel ignored the 11th Circuit's finding in Nicholson that Rooker-Feldman applies only to final state-court judgments. Made no mention of it.
The panel did admit that, under Lance, Rooker-Feldman did not block Carol's claims. Bit it dismissed her claims on other dubious grounds, mainly involving immunity. The panel ignored the U.S. Supreme Court finding in Lugar, which if applied properly based on allegations in our complaint, would have treated Swatek and McGarity as acting under color of state law. My appellate brief on the various issues can be read here.

Why this opinion had to be stamped "Do Not Publish" -- The panel's ruling in Shuler essentially overruled Nicholson, Lance, and Lugar -- and butchered the long-held findings related to Rooker-Feldman. In terms of Lugar, the Eleventh Circuit effectively overruled the U.S. Supreme Court. That's something circuit courts are not allowed to do -- the U.S. Supreme Court is called "the highest court in the land" for a reason; Lower courts have an obligation to uphold its findings. Again, had Shuler been published it would have thrown the Eleventh Circuit into chaos -- certifying findings that run contrary to precedents that have governed important legal questions for years.


(3) Roger and Carol Shuler v. Ingram and Associates, et al., 11th Cir., 2011 (Do Not Publish)

Issues at stake -- Allegations that certain entities violated the Fair Debt Collection Practices Act (FDCPA) in trying to collect a debt we allegedly owed to American Express.

Primary unlawful finding in trial court -- This case was a mess from the outset. Four different judges were assigned to it, with Kallon finally getting it. By the time it wound up in his lap, I don't think he had a clue what was going on. We had multiple attorneys representing us, included the deceptive duo of Darrell Cartwright and Allan Armstrong, who essentially cost us the case by admitting to "facts" that the record shows were not facts. Consider this from our appellate brief, which I wrote after we fired Cartwright and Armstrong:

Any admissions in the record were not made by the Shulers; they were made by Darrell Cartwright and Allan Armstrong, two attorneys who no longer represent the Shulers. It was Cartwright and Armstrong who, without consulting the Shulers, admitted to “undisputed facts” Nos. 9, 12, 13, and 18 in Ingram’s motion for summary judgment. The Shulers’ own attorneys repeatedly made blatant mistakes that undermined their clients’ case, admitting to “facts” that are not facts. Federal law makes it clear that a party is not to suffer because of the incompetence of counsel. Consider Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp.,843 F. 2d 808 (4th Circuit, 1988) : “When the party is blameless and the attorney is at fault, the former interests control . . .”

So many errors of fact and law were made in this case, it's hard to know where to begin. Cartwright and Armstrong wrote our response to Ingram's Motion for Summary Judgment, and they did a fairly good job on the argument -- despite wrongfully admitting near the beginning to at least four non-facts that helped cost us the case. Perhaps the most important error by the court is this: 15 U.S.C 1692e holds that "a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt."

Representatives of Ingram and Associates lied to us over and over -- and we captured it all on tape. Perhaps the most important lie, in our view, was their claim that American Express hired them, even though their own sworn testimony showed that the debt-collection firm NCO hired them. Obviously, American Express is a powerful, well-known consumer brand, and claiming they hired you, makes it more likely you will collect a debt (whether you can prove it is owed or not) with relatively little effort.

What the appellate court did about it -- A three-judge panel did nothing to correct Kallon's numerous mistakes. Contrary to clear law, the panel found that we were to suffer for our attorney's mistakes, upholding as "facts" information that the record showed clearly was not factual. The panel also misapplied the standard for summary judgment review, which holds that all matters must be viewed in a light most favorable to the non-moving party (us). Instead, the panel upheld Kallon's rulings that gave Ingram the benefit of the doubt at every turn.

Why this opinion had to be stamped "Do Not Publish" -- We probably could point to more than a dozen reasons that this case could not be recorded in the actual law. But here's the No. 1 reason: The appellate court, more or less, overturned key provisions of the FDCPA, holding that it's OK for debt collectors to resort to deceptive statements, misrepresentations, threats, and out-and-out lies in efforts to collect a debt. Of course, that's not what the law says, so the ruling had to be kicked into the nether world of unpublished opinions.

That's the place where, all too often, truth, facts, law, and justice go to die.

Will the U.S. 11th Circuit become a place of integrity and light, now that Clinton and Obama appointees hold a heavy presence on the Atlanta-based court?

U.S. Eleventh Circuit Court of Appeals in Atlanta

"Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

-- Monroe H. Freedman, founder of legal ethics


Eight of the 11 filled seats on the U.S. Eleventh Circuit Court of Appeals now are occupied by Bill Clinton or Barack Obama appointees (with one seat vacant, to be filled by Donald Trump if he isn't indicted first). Does that mean the Atlanta-based court slowly is turning from a judicial sewer, which it has been for decades, to a place where the rule of law might actually make a comeback?

That should be a compelling question for anyone living in Alabama, Georgia, or Florida -- the three states that comprise the Eleventh Circuit. It is a profoundly important question in the Schnauzer household because we have two pending appeals before the Eleventh Circuit, and in theory, that should have us feeling pretty confident that justice will be done. After all, judges who sit on circuit courts are just one rung below the U.S. Supreme Court, so they should be more capable -- and have more integrity -- than district judges who act at the trial-court level, right?

In reality, the Eleventh Circuit consistently has churned out the kind of opinions that disgusted the late Monroe H. Freedman, who was a law professor at Hofstra University and is considered the founder of legal ethics as an academic field. Much of the Eleventh Circuit's chicanery has been shrouded in "Do No Publish" opinions, which do not become part of the official "reporter-based" body of law and can be used to hide the court's dishonest work.

But even in high-profile cases that produce published opinions, the Eleventh Circuit has proven adept at generating opinions that violate its own precedent.  A classic example is the case of former Alabama governor Don Siegelman. We presented the gory details in a five-part series titled "The Cheating of Don Siegelman," then we boiled it down to a one-part, easy-to-digest summary of the Eleventh Circuit's cheat job.

How does this happen? Well, for one, ample evidence suggests the court during the George W. Bush years was tainted by the unlawful influence of GOP strategist Karl Rove, the U.S. Chamber of Commerce, and other corporate interests. It has been reported in multiple news outlets that Birmingham-based Bill Pryor, he of the badpuppy.com gay-porn photos, serves as a fixer on the Eleventh Circuit, at the direction of Rove and other moneyed interests.

On top of that, Siegelman had the misfortune of "drawing" a three-judge panel that consisted of all Republican appointees -- Gerald Bard Tjoflat, J.L. Edmondson, and James C. Hill. I put the word "drawing" in quotation marks because this panel likely was not the result of random selection, as required by law; political forces almost certainly made sure the Siegelman appeal landed before three GOP-appointed con artists.

I know from first-hand experience that Tjoflat and Edmondson are crooks. They were on the panel for the appeal of my unlawful termination at UAB. The Eleventh Circuit upheld the trial court's finding of summary judgment for the defendants, even though no discovery had been conducted in the case. That blatantly violated precedent from Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988), which held that summary judgment cannot even be considered (much less granted) until discovery has been completed.

Tjoflat and Edmondson hid their dirty work by issuing a "Do Not Publish" opinion, which means their bogus ruling, conflicting with black-letter law, will not be part of the official recorded body of law.

We know the Eleventh Circuit has an ugly past. But is it possible that brighter days are ahead? Well, Edmondson has gone on senior status, and Hill died earlier this year. We can hope that Tjoflat will retire, be indicted, or die in the not-too-distant future. Of the 11 judges on active status, five are Obama appointees and three were appointed by Clinton.

Does that mean the Eleventh Circuit is headed into an era of light and integrity? Not necessarily. For one, we know that Democrats can be just as crooked on the bench as Republicans. (See Vance, Robert Jr.) Two, five of the seven judges on senior status are Republican appointees, and they have mysterious ways of turning up on cases, even though they technically are retired. (In the real world or work, retiring usually means you are gone; in the judicial world, you can be retired and still come back -- sort of like a herpes sore.)

As for our pending appeals, let's focus on "The Jail Case," which involves my unlawful incarceration in Shelby County, Alabama, and was the first of our two appeals to be filed. (The other we call "The House Case" and involves the unlawful foreclosure on our home of 25 years in Birmingham.)

The Jail Case appeal never should have been necessary. The law is clear that the court is required to issue summonses and execute service for in forma pauperis (indigent) litigants, a status for which judges in both cases have found we qualify.

The law is a matter of simple common sense. If your resources are so limited that you can't afford to pay a filing fee (usually around $500) and can pay only a partial fee, then it figures you can't afford to pay for service, which can get quite expensive in a case involving a dozen or more defendants, such as ours.

As a matter of law, the Eleventh Circuit cannot rule against us. Our system of "justice" is built on precedent, which is supposed to guarantee consistency and clarity in application of the law. And the precedent in our case is clear: Courts, specifically clerks' offices, are required to execute service for indigent litigants. That already has been done in our other case, "The House Case," so it's not only a matter of getting it right, it's a matter of consistency.

If the Eleventh Circuit ruled contrary to precedent in our case, it would not just be an act of fundamental dishonesty toward us. It also would screw up the case law, ensuring that other litigants facing similar issues down the road will get the shaft also.

But that's where "Do Not Publish" opinions play their nasty role. They are not included in official reporters, so they do not wreak havoc with precedential law. And I'm not the only one who has noted that they often are used for perverse reasons. The late Monroe H. Freedman, who was professor and dean at the Hofstra University School of Law, noticed it almost 30 years ago, long before I ever dreamed of having legal problems.

Consider Freedman's words, from a 1989 speech, reproduced at the beginning of this post. They make me want to stand and shout "Bravo!" I, too, have had enough of bogus judicial opinions that abuse no-publication rules. Notice Freedman's use of the term "cover up." That term is apt, and it points to criminal intent, as in obstruction of justice, maybe more.

Will the heavy presence of Democratic appointees now on the Eleventh Circuit signal an end to the kinds of bogus opinions that infuriated Prof. Freedman? Perhaps the outcomes of our two appeals will provide a clue.

Like Prof. Freedman, I'm fed up with such judicial chicanery, and if we get another such opinion in our pending case before the Eleventh Circuit, I'm going to do everything in my power to make sure the responsible judges are unmasked and held accountable.

Hideously corrupt U.S. judge William Acker Jr. has "kicked the bucket," a step forward for justice in Alabama, a state that remains a judicial sewer

William M. Acker II

Just when you are rid of perhaps the worst federal judge in Alabama history, along comes another who seems hell-bent on proving she is just as bad.

In a rare piece of good news on "justice" in the Deep South, William M. Acker Jr., 90, died on June 21 after spending 34 years as a "judge" in the Northern District of Alabama -- the last 20 on senior status, before his full retirement in 2016. The wrinkled Reagan appointee had been on the federal bench in Birmingham since 1982.

Acker is the judge who cheated me raw in my First Amendment/discrimination lawsuit against UAB. Many of the ugly events that have happened to my wife, Carol, and me in the past six or seven years -- my kidnapping and incarceration; loss of our home of 25 years in Birmingham to wrongful foreclosure; our unlawful eviction in Missouri; Carol's shattered arm, requiring almost eight hours of trauma surgery (thanks to Greene County deputies) -- would not have happened if Acker had handled the UAB case lawfully.

Perhaps the best part about Acker's death is that it might allow for revival of my lawsuit against UAB. Wouldn't that be a hoot if the SOBs (and daughters of bitches, DOBs?) who thought they got away with cheating me the first time were to see my complaint slapped on their desks -- or wind up in their mailboxes, for those who no longer work at the university? It could happen.

The original case was not a hard one to decide, given that UAB human-resources official Anita Bonasera admitted in a tape-recorded phone call that I was targeted because of my reporting on this blog about the Don Siegelman case. But Acker, being a Bastard-Coated Bastard With Bastard Filling (BCBWBF), repeatedly ruled contrary to black-letter law -- and he even had the audacity to state in open court that he was going to cheat me, and then he did it. Naturally, his corrupt cronies on the U.S. Eleventh Circuit Court of Appeals in Atlanta backed him up in a "Do Not Publish" opinion -- which is a little trick federal judges use to cheat certain litigants without screwing up the actual law in federal reporters.

The late Monroe Freedman, a Hofstra University professor who was considered the father of modern legal ethics as an academic subject, said he was sick of seeing crooked opinions like the one Acker produced in my case. From Freedman:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.

I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

Freedman said that in a 1989 speech, and the quote made me feel like I was in awfully good company in reporting on scoundrels, like Acker, on the federal bench. Freedman died in 2015, and judicial corruption only got worse during the later years of his life.

As for the Northern District of Alabama, I've learned in recent weeks that Judge Virginia Emerson Hopkins, who reportedly retired to senior status in June, might be just as crooked as Acker. We will deal with her in upcoming posts. But for now, let's tell the world that William M. Acker Jr. was a hideous criminal, and the world is a better place now that he's dead.

An American tradition is that we speak kindly (and falsely) of the dead, no matter how big a BCBWBF he was in real life. That applies to Acker, as you can see from this article about his death at al.com:

Colleagues of retired United States District Judge William M. Acker, Jr., are remembering him this week as a brilliant and compassionate jurist who ruled on a variety of cases during a three-decade career on the federal bench.

"Brilliant and compassionate," my ass. You will notice the article includes only quotes from fellow judges and lawyers -- none from parties who had cases before Acker. I wish they had asked me for a quote. Here is what it would have been.

I consider Bill Acker to be a worse criminal than Jarrod W. Ramos, who killed five people in the recent newspaper shooting at Annapolis, Maryland. At least Ramos had the decency to use his own money to purchase his weapon. Even the worst mass killers generally do that. But not Bill Acker and his fellow judicial crooks. They use taxpayer money, in taxpayer-funded facilities. to cheat taxpayers who have cases before them -- all the while treating constitutional rights like they were used toilet paper and showing utter disrespect for the rule of law. In other words, Acker steals your money to buy a gun and shoot you with it. Hell, Jarrod Ramos almost certainly has more integrity than that. 

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

"This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests."

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

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

Speaking of Rob Riley, I'm not the only litigant Acker cheated in the name of protecting the son of former Alabama GOP Gov. Bob Riley.  He did much the same thing in a whistle blower case on which we reported, where Rob Riley's company (and individuals tied to UAB) reportedly were engaging in health-care fraud. The plaintiff's Mississippi lawyers were left so amazed at Acker's unlawful rulings that they hardly knew what to say. They did say it might be possible to re-bring the case later, "but we'll have to wait for him to die."

Well, thank God, that time has arrived, although a send-off remains on schedule for Acker. According to an obituary at al.com, a "celebration" of Acker's life will be at 11 a.m. on July 28 at Highlands United Methodist Church. How do you "celebrate" the life of a publicly funded criminal? From the obit:

Judge Acker was known for his humorous limericks and writings but most particularly for his legal writings. Two weeks before his death, although nearly blind, he completed a law review article which will be published in the Cumberland Law Review in the near future.

Acker was a funny guy? Tell that to the parties he cheated in court. Acker almost went blind near the end of his life? Let's hope he enjoyed his time in near darkness, and maybe he learned something from it -- like karma really can be a bitch.

As for the possibility of reviving my UAB lawsuit, I'm still researching that topic -- but I think it is a possibility. In terms of new evidence, all evidence in the case is new because Acker did not allow any discovery the first time around. This much is certain: If my UAB case winds up back on the docket, William Marsh Acker II won't be hearing it.

Before we leave, let's pay tribute to Dr. Perry Cox, the memorable character from Scrubs who created a classic phrase we borrowed above. Here's the video:

Bob Woodward's latest blockbuster is about Donald Trump's "war on truth," but the famed reporter could write several volumes about the U.S. "war on law"

Bob Woodward

Acclaimed journalist Bob Woodward, speaking to MSNBC's Rachel Maddow this week, said his new book essentially is about the Trump administration's "war on truth." That is a profound statement, but it doesn't go far enough, in our view.

The release of Fear: Trump in the White House has been one of the biggest news stories of the past week. By all accounts that we've read, it's another stunning chapter in Woodward's long career as a ground-breaking reporter. But there is another war under way on the American landscape, and it might be even more dangerous than Trump's jihad against the truth. We call it the "war on law," and we've been reporting on it since Legal Schnauzer started in June 2007.

You might say Trump's "war on truth" dates to June 2015, when he announced his run for the presidency. The "war on law" goes back much further than that. The late Monroe Freedman, considered the modern-day father of legal ethics, spoke about it in 1989. Karl Rove and the U.S. Chamber of Commerce launched an effort to buy Southern appellate courts in 1994, and that essentially was an official declaration of war on the law.

What impact does this have on our democracy? It destroys fundamental constitutional protections, such as due process and equal protection. Those quaint notions already are on life support in many jurisdictions.

As for Trump, he is conducting a war both on truth and the law. His appointment of the abominable Jeff Sessions as attorney general -- with his long history of political prosecutions -- showed an utter disrespect for the rule of law. His nomination to the U.S. Supreme Court of Brett Kavanaugh, who lied repeatedly to Congress during his confirmation hearings, is a classic case of placing political considerations over the law.

Let's consider two examples of the "war on law" in our personal experience. They involve both Alabama state and federal courts, from our first encounter with a legal matter to a matter that is pending as we type:


Trampling the law of trespassing

Our legal nightmare began when Shelby County District Judge Ron Jackson found Mike McGarity, our former neighbor with the lengthy criminal record, not guilty of trespassing -- even though McGarity admitted under oath that he had committed the offense as charged.

Jackson butchered the facts and the law in a variety of ways. But here is the one that really stands out, citing the judge's words from a court transcript:

"I'm going to find that you had to give written warning, and there is reasonable doubt about whether the warning was received prior to the trespass. Therefore, I am going to acquit. But Mr. McGarity, you certainly are on notice now, and if you return here on these issues, the result might be different."

Jackson found that we had to give McGarity written warning to stay off our property. Is that a correct reading of Alabama law -- or law anywhere, for that matter? Not even close. Jackson made it up -- in crude terms, he pulled it out of his ass. The real law can be found in a case styled Chambers v. City of Opelika, 698 So. 2d 792 (Ala. Crim. App., 1996). From the Chambers opinion:

The appellant has cited no authority for his position that to be guilty of criminal trespass the intruder must be aware that he or she had no license or privilege to enter or to remain on the premises. There is authority, however, that states that when those premises are private and not open to the public, there is no requirement that the prosecution prove that a prior written or verbal warning was given to the intruder.

As you can see, no property owner (or renter, for that matter) is obligated to warn an intruder. If that were the case, there would be no such thing as private property in the United States. Rather, it is the would-be trespasser's obligation to make sure he is "licensed, privileged, or invited" to be on the property. McGarity admitted he was on our property, and he never claimed any of those defenses, so he was guilty. Jackson's finding of "not guilty" allowed McGarity to file a baseless malicious prosecution case against me -- and all of our other legal travails flow from that. Had Jackson decided the McGarity matter lawfully, none of our other legal cases would have happened -- and 18 years of our lives would not have been ruined.


Jerking around with the statute of limitations

Our pending "Jail Case" in the Northern District of Alabama provides a recent example of courtroom crookedness. It involves the statute of limitations and shows U.S. District Judge Virginia Emerson Hopkins can't get even the simplest matters correct.

Hopkins dismissed all six of our federal claims -- First Amendment, Fourth Amendment, Fourteenth Amendment, False Arrest, False Imprisonment, and Excessive Force -- by finding that we filed our complaint after the two-year statute of limitations (SOL) for claims under 42 U.S.C. 1983 had
expired.

Virginia Emderson Hopkins

It is standard around the country that the time bar for a Sec. 1983 claim is based on each state's statute of limitations for personal-injury cases. In Missouri, that is five years; in Alabama, it's two years. So, it's undisputed that our case, in fact, is governed by a two-year SOL -- and Hopkins is correct, up to a point..

But that is not the only time-related matter at hand. There also is the small matter of when the SOL begins to accrue. In other words, when does the two-year clock start ticking on a Sec. 1983 claim in Alabama, or any other state? The U.S. Eleventh Circuit (covering Alabama, Georgia, and Florida) answered that question in a case styled Kelly v. Serna, 87 F. 3d 1235 (11th Cir., 1996):

“Deciding what statute of limitations applies to this action gets us only half way to our destination. Secondly, we must decide at what point the applicable statute begins to run. A statute of limitations begins to run when the cause of action accrues. Accrual of a cause of action under 42 U.S.C. § 1983 is a question of federal law. Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir.1987).

So, what does federal law say on the matter? Here is how the U.S. Supreme Court put it in Wallace v. Kato, 549 US 384 (U.S. Supreme Court, 2007):

“The statute of limitations in a § 1983 suit is that provided by the State for personal-injury torts,e.g.,Owens v. Okure, 488 U.S. 235, 249-250, 109 S.Ct. 573, 102 L.Ed.2d 594 . . . For false imprisonment and its subspecies false arrest, "[t]he... cause[s] of action ... provid[ing] the closest analogy to claims of the type considered here," Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383, the statute of limitations begins to run when the alleged false imprisonment ends, see,e.g., 4 Restatement (Second) of Torts § 899.”

How does Hopkins butcher the law on this issue? By simply ignoring what Wallace v. Kato actually says. Hopkins claims "the statute of limitations does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." From that, Hopkins concludes that the SOL began to run when I was arrested, when my imprisonment began.

But that is not the law in cases of alleged false arrest and false imprisonment, as Wallace makes clear. You will notice the citation in Wallace to Restatement of Torts. The Restatement is a volume on U.S. common law, which applies across the country. It provides perhaps the most clearly worded statement on the SOL issue in our case:

“For false imprisonment, the statute [of limitations] begins to run only when the imprisonment ends, since the period of imprisonment is treated as a unit." Restatement (Second) of Torts § 899, (1979). See Wallace v. Kato, 549 U.S. at 389,127 S. Ct. 1091 ("The running of the statute of limitations on [common-law] false imprisonment is subject to a distinctive rule—dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned."). The Restatement.

This is not only succinctly stated law, it's also common sense. If Hopkins' version of the law was legit, someone could have you falsely arrested, keep you in jail for two years, and you would have no legal recourse  once you got out. I was kept in jail for a little more than five months, and the SOL on my claims began to accrue when my imprisonment ended. It's undisputed that our claims were filed within two years after my release from the Shelby County Jail -- and that's when the SOL began to accrue.

Virginia Emerson Hopkins can't get that right because she is a sycophant for Jeff Sessions and U.S. Sen. Richard Shelby (R-AL), and they are two of the "generals" in the war on law.

Bob Woodward could write several volumes on that war, and he would be doing a huge service for our citizenry.