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 our coverage of Riley's extramarital affair with lobbyist Liberty Duke.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. . . .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.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.
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.
