Article: Ten Commandments Judge Rises from the Dead in Alabama

Cross Posted at Legal Schnauzer

Political observers from both the left and right are aflutter over a Roy Moore v. Harry Lyon showdown for chief justice of the Alabama Supreme Court.
Conventional wisdom holds that, whichever candidate wins the general election in November, our highest court will be irreparably damaged and our state will once again be embarrassed on the national stage. Neither Moore, a Republican, nor Lyon, a Democrat, seems to possess the kind of background or temperament one would expect for a chief justice.
Moore is famed for being forced from the state's high court in 2003 when he refused a federal court order to remove a Ten Commandments monument from the state's judicial building. Moore's political career appeared to be dead, but GOP "values voters" provided new life by giving him a resounding victory over two establishment, pro-corporate candidates in last week's primary. Lyon is famed for . . . well, not much of anything--other than running numerous times for various statewide offices while never coming close to a victory. Harry Lyon is the classic "perennial candidate," one with a colorful biography that includes run-ins with various neighbors and law-enforcement types and several public utterances that might cause one to suspect he's a bit daffy.
Some politicos consider the situation so dire that they reportedly are trying to find an independent candidate to join the fray. Democrats might be looking at ways to replace Lyon on the ballot.
But here is the ugly truth: Alabama appellate courts in general, and the supreme court in particular, already are a joke--and neither Roy Moore nor Harry Lyon is going to make them worse.
Critics have pointed out that both Moore and Lyon have shown a lack of respect for the rule of law. After all, it's undisputed that Moore was willing to ignore a federal court order. And Lyon has been publicly disciplined three times by the Alabama State Bar. But I would submit that they aren't any worse than the justices who already sit on our highest court.
That last statement is not made for the purposes of snark. It's the cold, uncomfortable truth--and I know it's true, both from reporting on our appellate courts and from my own personal experiences with them.
Let's consider three cases from the past eight years where the GOP-dominated Alabama Supreme Court has overridden fact, precedent, and common sense to favor their corporate benefactors:
* The ExxonMobil Case--A jury found that ExxonMobil had intentionally shortchanged the state for natural-gas royalties and awarded the state more than $3.6 billion in damages. The Alabama Supreme Court overturned most of the award in late 2007.
* The AstraZeneca Case--A jury awarded the state $274 million in a fraud lawsuit against three pharmaceutical companies--AstraZeneca, Novartis, and GlaxoSmithKline. The Alabama Supreme Court ruled that the companies did not defraud the state in pricing Medicaid prescription drugs and overturned the award in 2009.
* The Baptist Health Case--A jury awarded $3.2 million in a wrongful-death case, but the Alabama Supreme Court overturned the verdict in 2011, finding that Baptist Health in Montgomery enjoyed "state immunity" because of its affiliation agreement with the University of Alabama at Birmingham (UAB). State, or sovereign, immunity is a dubious concept to begin with, but our high court stretched it to heretofore unknown boundaries.
As for my personal experience with Alabama's appellate courts, it's been "highlighted" by an appeal in the bogus lawsuit filed against me by our criminally inclined neighbor, Mike McGarity. It's hard to imagine a case that could be easier for a court to decide. I filed a properly executed motion for summary judgment, supported with material evidence (in the form of affidavits), as required by law. That shifted the burden to McGarity, the nonmoving party, to show through his own response and evidence that there was a reason for the case to go to trial.
The case had to be dismissed on so many grounds--eight to 10, at least--that I filed three motions for summary judgment (MSJ), each raising distinct issues of fact and law. One MSJ should have been sufficient, but trial judge J. Michael Joiner refused to follow black-letter law and grant summary judgment. On the first MSJ, McGarity filed a response, but he filed no timely evidence as required by law. He did file an affidavit--which did not dispute the fundamental facts and law at hand--but it was 10 days late and had to be stricken as a matter of law. Joiner denied summary judgment anyway.
On the second and third MSJs, McGarity filed no response at all--no affidavit, no evidence, nothing. That meant the evidence I filed, which was different from the evidence in the first MSJ, was uncontroverted. In such circumstances, Alabama law is clear: Summary judgment must be granted and the case dismissed. In fact, the law in all jurisdictions is clear: Such an MSJ simply cannot be denied, and it's a "nondiscretionary" ruling.
Rule 56(e) of the Alabama Rules of Civil Procedure makes it clear. So does Alabama case law:

When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing." Voyager Guar. Ins. Co., Inc. v. Brown 631 So. 2d 848 (Ala., 1993).

Law does not get much more clear than the finding in Voyager. But Joiner could not get it right, and the Alabama Court of Civil Appeals affirmed his ruling with no opinion. I filed a petition for a writ of certiorari, seeking review from the Alabama Supreme Court.
Did the high court have an obligation to act? Yes, it did--and Rule 39 of the Alabama Rules of Appellate Procedure spells it out:

A petition for a writ of certiorari will be granted only when there are special and important reasons for the issuance of the writ. . . . In all civil cases petitions for writs of certiorari will be considered only . . . from decisions in conflict with prior decisions of the Supreme Court of the United States, the Supreme Court of Alabama, the Alabama Court of Criminal Appeals, or the Alabama Court of Civil Appeals.

The Rules of Appellate Procedure state that the Alabama Supreme Court has a duty to correct decisions that conflict with its own prior decisions. And the trial court and the Court of Civil Appeals made findings in McGarity that clearly conflicted with Voyager.
Did the Alabama Supreme Court fulfill its duty to get it right, to make sure that its prior decisions were respected and upheld? No, it did not. It denied certiorari review in McGarity, meaning an unlawful finding against me remains on the books.
That ruling came with Drayton Nabers serving as chief justice of the Alabama Supreme Court. And it proves that our high court has shown little respect for the rule of law, long before the Roy Moore v. Harry Lyon controversy took flight.
Moore and Lyon might seem, to some, like goofy candidates. But the Alabama Supreme Court already is a joke--and they can't do anything to make it worse.