U.S. Eleventh Circuit Court of Appeals in Atlanta
We have two pending appeals before a U.S. Circuit Court, 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?Well, history tells us that is not necessarily true. We know that appellate justices can be just as crooked as their brethren at the trial level -- and they even have a sneaky technique for cheating certain parties, one with which the public, by and large, is not remotely familiar.
Legal scholars and journalists are familiar with this technique, and a few even have had the guts to publicly denounce it. But for now, the practice of issuing "Do Not Publish" opinions (which have no precedential value and are not published in the official court record) continues apace. And we stand an extremely high chance of getting such an opinion in one or both of our cases. Does that mean we absolutely will get cheated on our appeal? Not necessarily; we can hope that eight years' worth of Obama nominees have made the U.S. Eleventh Circuit (covering Alabama, Georgia, and Florida) a little more likely to issue opinions that have some connection to the facts and law of the case.
By the way, eight of the 12 seats on the Eleventh Circuit now are filled by Bill Clinton or Barack Obama appointees (with one seat vacant, to be filled by Donald Trump if he isn't indicted first). If the Eleventh Circuit remains the judicial sewer that it has been for years, Democrats will be just as much to blame as Republicans.
Still, evidence suggests a "Do Not Publish" opinion increases the likelihood that an everyday, not-so-connected litigant will get a shaft job. The wealthy and connected, meanwhile, are likely to receive favorable rulings that are not supported by law.
Let's consider our "Jail Case" appeal, which involves my unlawful incarceration in Shelby County, Alabama, and was the first 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 "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. This is from a Freedman speech in 1989:
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 makes me want to stand and shout "Bravo!" for the late Prof. Freedman, who is considered by many to be the father of modern legal ethics. 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.
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.
