Alexandra Siskopoulos (YouTube)
Part Three
The U.S. Supreme Court (SCOTUS) should review the conspiracy case of Birmingham attorney Burt Newsome because the mishandling of release-dismissal agreements (R&D) in criminal cases -- of the type present in the Newsome matter -- is an increasingly common error in state and federal courts, argues a veteran practitioner before the high court. Alexandra Siskopoulos, a New York City attorney who filed a petition for a writ of certiorari on Newsome's behalf, says R&D agreements have become a classic form of government overreach.
Siskopoulos also argues that Alabama courts violated SCOTUS precedent -- one of the grounds for which the high court hears cases -- and trampled Newsome's due-process rights in multiple ways -- by relying on an unfiled order that was void as a matter of state law and improperly hitting him with more than $192,000 in sanctions.
At the heart of Newsome's argument -- especially in regards to violation of SCOTUS precedent -- is a case styled Newton v. Rumery, 480 U.S. 386(1987). How did the federal questions for which Newsome seeks review come to be raised? Here's how Siskopoulos frames it in her petition for certiorari. (The petition is embedded at the end of this post.):
Petitioners [Newsome and Newsome Law LLC] argued that the release was void under federal law pursuant to this Honorable Court’s precedent in Newton v. Rumery, 480 U.S. 386 (1987), which requires that the party relying on the release must prove the release is valid. The Circuit Court improperly determined that the release was valid without applying the Rumery factors. On appeal, the Supreme Court of Alabama addressed “[w]hether the release clause is void under federal law” and improperly applied the Rumery factors in contravention of this Honorable Court’s precedent.
Petitioners argued that the lower court could not rely on an unfiled order which was void pursuant to law. The Circuit Court did not address this issue. On appeal, the Supreme Court of Alabama addressed the issue in its opinion but violated the Petitioners’ due process rights to appellate review by relying on an implicit holding the court had previously rendered regarding the unfiled order.
Why is the Newsome case a matter of national significance, worthy of SCOTUS review? Siskopoulos explains:
The Supreme Court of Alabama’s decision is the ideal vehicle to address whether a release-dismissal agreement pursuant to this Honorable Court’s guidelines can encompass non-governmental persons and entities which were never contemplated in the seminal holding of Newton v. Rumery, 480 U.S. 386 (1987). Further, this Honorable Court must address whether these increasingly overbroad release-dismissal agreements can waive a litigant’s right to pursue a criminal prosecution. The Supreme Court of Alabama’s decision is also an ideal vehicle to address whether a state court judge can withhold the formal filing of a final decision/order and still be in accord with due process principles established by our Constitution.
Siskopoulos shows how U.S. Supreme Court precedent in Rumery has come to be misapplied in courts around the country -- with the Newsome case providing a classic example:
In Newton v. Rumery, 480 U.S. 386 (1987), this Honorable Court held that release-dismissal agreements entered in a criminal action could not be deemed per se valid nor per se invalid but instead must be decided on a case-by-case approach. In Rumery, this Honorable Court established that this case-by-case approach required the defendant seeking to enforce a release-dismissal agreement prove that the agreement was entered into voluntarily, free from prosecutorial misconduct and was not offensive to relevant public interests. This Honorable Court’s holding in Rumery has resulted in government overreach in the use of release -dismissal agreements warranting this Court’s intervention. Since the Rumery decision, the use of release-dismissal agreements in criminal cases in Alabama have evolved beyond permissible use. Rather than simply waiving any civil claims against the government, the release-dismissal agreement in this action waives all civil and criminal claims against countless non-governmental individuals.
In essence, Rumery held that R&D agreements should protect government officials and entities from civil claims resulting from their handling of criminal cases. But the R&D document in the Newsome case goes way beyond that -- to the point that it is unconstitutional, Siskopoulos argues:
Petitioners correctly argued that the holding in Rumery should be applicable to the instant case and that this release-dismissal agreement was unenforceable as a matter of law pursuant to the holding in Rumery. Additionally, the public policy reasons set forth by this Honorable Court for not invalidating all release-dismissal agreements as void because of the government’s interests in protecting itself by use of a release, are simply unavailable to non-governmental individuals and entities. Further, Rumery never allowed for the waiver of criminal claims against any individuals. By extending the release to include “any other complainants, witnesses, associations, corporations, groups, organizations or persons in any way related to this matter,” the government, through the prosecutor’s office, impermissibly violated the constitutional rights of the Petitioners.
In deciding the instant action, the Supreme Court of Alabama upheld the lower court’s granting of summary judgment for the defendants stating that “Newsome is bound by the release clause in the D&R order.” The Supreme Court of Alabama simply failed to properly apply the Rumery factors to the dismissal-release at issue. The Supreme Court of Alabama stated “[t]he D&R order indicates on its face that Newsome voluntarily agreed to its terms. Moreover, there is no evidence, or even an allegation, of prosecutorial misconduct, and enforcing the D&R order according to its terms would not adversely affect any public interest.” The Supreme Court of Alabama improperly flipped the burden of proof set forth in Rumery onto the Petitioners. The proper burden of proof was on the defendants to show that the release obtained was voluntary, free from prosecutorial misconduct and did not affect the public interest. Defendants did not even attempt to meet this burden, yet each defendant was granted a motion for summary judgment despite the clear legal burden placed upon defendants to prove the elements established by the holding in Rumery. The defendants never met the legal burden required by Rumery.
Alabama is not the only jurisdiction where this kind of misapplication occurs. The Newsome petition provides multiple examples of similar errors around the country:
The Supreme Court of Alabama’s knee jerk reaction to summarily agree to the purported enforceability of the release-dismissal agreement is a common error that inflicts the state and federal courts. Our courts are under the erroneous notion that these agreements are presumptively valid – they are not. Ohnemus v. Thompson, 594 F. App’x 864, 868 (6th Cir. 2014). Further, since the Rumery holding, many courts have failed to employ the “critical eye” required by Rumery. Cuba-Diaz v. Town of Windham, 274 F. Supp. 2d 221, 226 (D. Conn. 2003). Clearly, the Alabama courts have forgotten that the party seeking to enforce these release-dismissal agreements must show “absence of prosecutorial misconduct.” Patterson v. City of Akron, 619 F. App’x 462, 476 (6th Cir. 2015). This was a legal impossibility in this case whereas it is fundamentally illegal (and of course unconstitutional) to have a party waive a right to a criminal prosecution. Raia v. Goldberg, 33 Ala. App. 435, 439, 1948 Ala. App. LEXIS 506, *10, 34 So. 2d 620; Y.W. by & Through Smith v. Nat’l Super Mkts., 876 S.W.2d 785, 791 (Mo. Ct. App. 1994). Further, the preprinted dismissal-release order here will never meet the exacting standard set forth by Rumery wherein a blanket policy by a prosecutor’s office does not meet the Rumery test. Cuba-Diaz v. Town of Windham, 274 F. Supp. 2d 221, 227 (D. Conn. 2003). The Alabama courts not only failed to apply the prosecutorial misconduct factor correctly, but also believed that these agreements are de facto beneficial and valid. Such a belief is a gross distortion of the Rumery test whereas these dismissal-release agreements are not presumptively valid nor are they per se beneficial to the public interest. Ohnemus v. Thompson, 594 F. App’x 864, 868 (6th Cir. 2014); Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993).
What is the danger in this? Siskopoulos explains:
Many counties and courts have discarded the Rumery factors and are requiring criminal defendants to agree to overbroad, illegal and unconstitutional agreements to secure their freedom. This is not the job of a prosecutor. Also, these release-dismissal agreements place a prosecutor in the dangerous role of perverting the criminal process to favor one litigant over another. The courts have routinely forewarned it is against legal ethics and standards to use the criminal process to gain an advantage in a civil case. MacDonald v. Musick, 425 F.2d 373, 376 (9th Cir. 1970). This ridiculous, dangerous release was used as a security blanket to protect many people and entities not associated with this case – including one of Alabama’s largest law firms. By failing to apply the Rumery factors and flipping the burden of proof on the Petitioners in contravention of the law, the Alabama courts violated Petitioners’ due process rights. This violation of Petitioners’ due process rights was only compounded by disposing of the action on summary judgment. Causes of action have been established as a property right protected under the constitutional guarantee of due process. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982). The Fifth Amendment firmly establishes an individual’s constitutional guarantee that “[n]o person shall…be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. This Court has stated “[t]o suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.” Malinski v. New York, 324 U.S. 401, 415 (1945). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976). This Honorable Court has established that there is a denial of due process where an absence of fairness fatally inflicts a trial because “fundamental fairness [is] essential to the very concept of justice.” Lisenba v. California, 314 U.S. 219, 236 (1941). “A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process.” D.N. v. K.M., 61 A.3d 150, 156 (N.J. Super. Ct. App. Div. 2013). Throughout this action and the underlying criminal proceedings relating to the expungement of Petitioner Newsome’s criminal record, Petitioner Newsome was not afforded these cherished constitutional due process protections.
What happens when constitutional protections are denied? That's where American courts can produce ugly, nonsensical results:
In filing the civil lawsuit, Petitioners clearly placed the voluntariness of the release at issue. Petitioner Newsome stated that when he signed the release, he was unaware of the conspiracy to have him arrested in order to ruin his reputation and take his book of business. Petitioner Newsome specifically alleged that the release was procured by the fraudulent conduct of the defendants and was therefore not voluntary. Petitioner Newsome’s claims of fraud were summarily rejected by the Alabama courts on a summary judgment motion. While the Supreme Court of Alabama acknowledged “that a release obtained by fraud is void,” the court improperly stated there were no issues of fact by giving carte blanche acceptance to the defendants’ self-serving attestations in support of their motions.
Also, Petitioners clearly set forth that summary judgment was inappropriate because the defendants did not and could not meet their burden of proof regarding the public policy requirements under Rumery. Petitioners established that the release -dismissal order used in Mr. Newsome’s criminal case was on a preprinted form. Petitioners established that the preprinted release-dismissal form is used in all criminal dismissals in Alabama as part of a blanket policy. The defendants offered no testimony from the prosecution as to its reasoning why it believed the release was necessary in this case - as was their evidentiary burden. Courts that have addressed the issue of form releases as part of a blanket policy of a prosecutor’s office have found these releases to be unenforceable as a matter of law. Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993); Kinney v. City of Cleveland, 144 F. Supp. 2d 908 (N.D. Ohio 2001). These courts have reasoned the public interest showing required under Rumery simply fails as matter of law when prosecutors rely on a blanket policy of requiring releases in exchange for dismissals.
Those are not the only issues of national significance raised in the Newsome case:
Furthermore, this case gives this Honorable Court the opportunity to address whether these overbroad releases would violate public policy even when they are not part of a blanket policy of the prosecutor’s office. These types of purported agreements impermissibly blur the line between criminal and civil actions. In order to satisfy the public policy showing in Rumery, the prosecutor would need to investigate and determine that any and all civil claims between the defendant, complainant, and all potential witnesses are meritless. This is not the function of the prosecutor’s office and injects too many variables into criminal cases. Additionally, by utilizing the prosecutor’s office to preclude all civil claims against non-governmental entities, the State becomes a de facto witness in all civil actions as to the validity of the release.
As for Alabama courts relying on an unfiled "implicit" order in the Newsome case . . . well, that sounds goofy to the layperson's ear -- and that's because it is goofy, not to mention well outside the law:
The appellate courts throughout our nation make abundantly clear that “[p]arties are entitled to clear communication from the orders issued by all courts, including courts of limited jurisdiction…[t]he rights of litigants and the integrity of our system of justice depend on a reasonable level of certainty in recording the final decisions of our courts.” State v. Montoya, 2008-NMSC-043, ¶ 21, 144 N.M. 458, 463-64, 188 P.3d 1209, 1214-15; State v. Lohberger, 2008-NMSC-033, ¶ 34, 144 N.M. 297, 304, 187 P.3d 162, 169. Our appellate courts have additionally noted that an appeal has no value unless proper notice of the final order is clearly expressed and filed with the clerk. Swander Ditch Landowners’ Ass’n v. Joint Bd. of Huron & Seneca Cty. Comm’rs, 51 Ohio St. 3d 131, 133, 554 N.E.2d 1324, 1327 (1990); State v. Lohberger, 2008- NMSC-033, ¶ 34, 144 N.M. 297, 304, 187 P.3d 162, 169. A clear, final order is important to the administration of justice because “uncertainty about whether or when a final order has been filed may unintentionally forfeit a party’s right to appellate review.” State v. Lohberger, 2008-NMSC-033, ¶ 25, 144 N.M. 297, 302, 187 P.3d 162, 167.
Sadly, this is what tragically unfolded in Petitioner Newsome’s matter whereas he was unable to engage in comprehensive appellate review of the whether the order is void. Petitioner Newsome did file a Writ of Mandamus to challenge the order, but this was not the appropriate vehicle to review a final order and the unnecessary legal maneuver changed the reviewable standard from de novo to the more deferential standard of abuse of discretion. This was a clear violation of the due process of law. Indeed, the Alabama courts have noted “a writ of mandamus is not a substitute for an appeal.” Dixon v. City of Mobile, 859 So. 2d 462, 464 n.1 (Ala. Crim. App. 2003).
As a matter of law, Petitioners had a due process right to de novo review of whether the unfiled order is void as a matter of law. In relying on its implicit holding on Petitioner Newsome’s Writ of Mandamus, the court impermissibly relied on the inappropriate abuse of discretion standard. Due process does not allow for Petitioner Newsome to be subject to an implicit holding on an order which remains unfiled.
The trampling of Burt Newsome's constitutional rights do not end there. Alabama courts also attempted to unlawfully invade his bank account, by awarding defendants more than $192,000 in costs and attorney fees:
The courts in Alabama also granted and affirmed an award for attorneys’ fees related to Petitioner Newsome’s challenge to the overbroad, illegal release that purportedly waived Newsome’s civil and criminal claims even against non-governmental parties. Burt Newsome was well within his right to file a lawsuit in his home state and consequently challenge the enforceability of this suspect release. Indeed, the courts have routinely reminded the legal community that these releases must be reviewed on a case-by-case basis. Ohnemus v. Thompson, 594 F. App’x 864, 868 (6th Cir. 2014). Further, courts must review a purported release with a critical eye. Cuba-Diaz v. Town of Windham, 274 F. Supp. 2d 221, 226 (D. Conn. 2003). The adequacy of a dismissal-release is always reviewed in a case specific manner wherein “each case involves unique facts and policy considerations.” Lynch v. Alhambra, 880 F.2d 1122, 1128 (9th Cir. 1989). Additionally, in order to enforce a dismissal-release, it is incumbent on the party seeking its enforceability to meet the three factors set forth in the Rumery test. As a result, an action cannot be frivolous whereas a fact dependent test was required to analyze whether a dismissal-release was valid under the exacting standard set forth by Rumery. A challenge to this release was not unexpected nor was it frivolous – especially a release that illegally waives criminal claims and attempts to shield non-governmental actors and entities. In challenging this legally infirm release, Petitioner Newsome was attempting to pursue his property right via a legal action. Finally, allowing attorneys’ fees to be awarded for challenging this type of release creates a chilling effect on the right to challenge these releases which actually requires a critical eye by the reviewing court. As a result, the award for attorneys’ fees should be vacated as a matter of law.
