Joel Dubina
The chief judge of the U.S. Eleventh Circuit is ignoring overwhelming evidence that one of his trial-court brethren is acting corruptly in my employment lawsuit against the University of Alabama at Birmingham (UAB).
This will not come as a surprise to regular Legal Schnauzer readers. In both the Don Siegelman and Paul Minor criminal prosecutions, we've shown that appellate judges often are more interested in protecting rogues on the trial bench than in making sure that justice is served. Now I'm seeing the same sort of behavior in my civil case.
U.S. District Judge William M. Acker Jr. has made statements from the bench that can only be interpreted in one way--that he intended from the outset to rule unlawfully in favor of UAB and against me. In essence, Acker stated in open court that he was going to cheat me, and he proceeded to do exactly that, by granting summary judgment to UAB even though no discovery had been conducted in the case. All sorts of procedural and case law says that simply cannot be done--at least if a judge is making any effort to follow the law.
But Acker, an 84-year-old Reagan appointee, isn't concerned with appearances. He doesn't care who knows that he's crooked--and apparently Joel F. Dubina does not care either.
Dubina is the chief U.S. circuit judge in Atlanta, and he reviewed my complaint against Acker under the Judicial Conduct and Disability Act of 1980 (28 U.S.C. 351-364). Most Americans probably are not aware we have a procedure for filing a complaint against a federal judge. (Here is a link to a Ninth Circuit overview of the procedure for filing such a complaint.) That's just as well because a process that involves judges reviewing complaints against other judges is almost always going to be a sham anyway.
Dubina's handling of my complaint against Acker is a case in point. It's instructive to note that Dubina, like Acker, is a Reagan appointee from Alabama. God only knows how long the two right wingers have been buddies. What were the chances of my complaint against Acker being taken seriously? I would say the word "zero" pretty well sums it up.
Here is a "big picture" view of Joel Dubina: He was appointed a U.S. magistrate judge by Ronald Reagan in 1986 and elevated to the U.S. Eleventh Circuit in 1990 by President George H.W. Bush, rising to chief judge (based on his seniority) in 2009. Dubina took the appellate seat that was vacated when Robert Vance Sr. was killed by a mail bomb in 1989. Vance, a Democrat and Jimmy Carter appointee, was widely known as a supporter of civil rights and was a mentor to future Alabama governor Don Siegelman. When you consider that Siegelman's 2006 convictions have unlawfully been upheld by the Eleventh Circuit--and the political prosecution was brought by the George W. Bush Department of Justice--this question comes to the forefront: Was Joel Dubina's appointment to the Eleventh Circuit, replacing Robert Vance, an early sign that the Bush family was going to sully our federal justice system by appointing political hacks to key positions?
Let's consider Dubina's response to my complaint that Acker had warned me multiple times in a hearing to look up the rule for a writ of mandamus. As I explained in a previous post, Acker's words can be interpreted only one way--at least by anyone who is serious about notions of due process and equal protection under the law:
To fully grasp what Acker is doing here, you have to understand the purpose of a writ of mandamus. The filing of a petition for such a writ is governed by Rule 21 of the Federal Rules of Appellate Procedure (FRAP). It is a form of appeal while the case still is in the trial court. That's why it is called an "extraordinary writ"; the process is designed to address close questions of law or fact, not to serve as a pinch hitter for a trial judge who is too crooked to rule correctly on simple procedural issues.
The transcript, read in full, shows there was no legitimate reason for Acker to warn me twice that I would need to learn about the mandamus process. But Acker knew two things about mandamus petitions: (1) They are time consuming; and (2) They are expensive, with an appellate docketing fee of $450 every time you file one.
In so many words, Acker was telling me: "I'm going to screw you on every little detail of this case, and you are going to have to spend months of your time and thousands of your dollars just to make the simplest step forward in your case. I will drain you of your resources simply because I can--and no one can stop me."
Did Dubina take Acker's threats seriously? Of course not. Here is how he brushed them off. (You can read Dubina's full ruling at the end of this post.)
Mr. Shuler provides no credible facts or evidence to substantiate his claim that Judge Acker committed misconduct with respect to this issue. Judge Acker's statements--that Mr. Shuler would need to "study up" on the procedure for filing a writ of mandamus--do not support Mr. Shuler's allegation that Judge Acker was going to "cheat" Mr. Shuler, did not know the law, intending to intentionally misapply the law, or was going to force Mr. Shuler to waste resources by filing multiple appeals. It appears that the statements were made in an effort to inform Mr. Shuler of a process for redress in the event that Judge Acker made any erroneous rulings. Furthermore, the fact that Judge Acker made the alleged statements only to Mr. Shuler, and not to counsel for the defendants, does not support Mr. Shuler's claim that Judge Acker was biased against him, given that Mr. Shuler was representing himself pro se. In this context, the statements appear to be Judge Acker's explanation of the different options available to a pro se litigant, as opposed to an indication of bias against Mr. Shuler.
First, it should be noted that these weren't "alleged statements" from Acker. An official court transcript shows they were exactly as my wife and I reported them in affidavits to support my complaint. Second, Acker's own words show that Dubina's explanation is a pile of horse feces. On page 6 of the hearing transcript, Judge Acker commented on my apparent knowledge of the law:
Mr. Shuler, you, in representing yourself, demonstrated to me that you are more cognizant of and aware of the Rules of Civil Procedure and some of the statutory causes of action you present, or attempt to present, than some of the lawyers that come in here . . .
Acker knew I didn't need to "study up" on the mandamus rule. He simply was making it clear that he was intentionally going to rule against me. He's a cheat and a bully, and he thought I wouldn't have the cojones to file a complaint against him. He was wrong about that one.
Let's also examine Dubina's response to my complaint about Acker stating in open court that he knew that "UAB and the people over there are anxious about this." What did that mean? Here is how I explained it:
How could Acker know that UAB is anxious about the case? It could only be because someone connected to the university told him--and this is the kind of prejudicial communication that is strictly prohibited by judicial ethics rules.
Did Dubina see the obvious? Not a chance. Here is how he brushed this one off:
Mr. Shuler provides no credible facts or evidence to substantiate this claim, as the alleged statement does not support that Judge Acker had inappropriate conversations with someone external to the case. Given that UAB was the defendant in a lawsuit, Judge Acker could assume or perceive that UAB was anxious about the case, without having been informed of that information by someone.
This is laughable, and it shows that Dubina either is a blatant apologist for corrupt judges or he lives in an impenetrable bubble--or both. I'm the one who has been subjected to a career assassination. I'm the one who has been stripped of my livelihood in the midst of an epic recession. If anyone should have been anxious about this case, it was me. But did Acker "assume or perceive" that? Of course not.
In fact, Acker did not "assume or perceive" anything. The transcript shows that he said "I know" that UAB and the people over there are anxious. He was making a statement of fact, based on what someone had told him.
At the risk of sounding overly dramatic, Joel Dubina's handling of my complaint against Judge Acker shows that we need major reform of our justice system. A system of lawyers monitoring lawyers, and judges monitoring judges, is failing horribly--and this is just one more piece of evidence that helps prove it.
Acker Misconduct Ruling
