U.W. Clemon
Jeff Sessions, Donald Trump's nominee for U.S. attorney general, hardly is alone in trying to get a prominent black federal judge off a case in hopes of drawing someone less sympathetic to civil rights. The tactic was so common when U.W. Clemon was on the federal bench in the Northern District of Alabama that it almost was considered sport in the Birmingham legal community.Even though quite a few litigants resorted to the underhanded tactic, they aren't currently nominated for U.S. attorney general. Jeff Sessions is -- in fact, his confirmation hearing is going on at this moment -- and the Clemon episode says a lot about Sessions shaky ethics and his tortured history on matters of race.
The Clemon issue became well known outside of Alabama, enough to draw coverage from The Wall Street Journal (WSJ) in 2002. The article, by reporter Michael Orey, makes clear that it is a breach of legal ethics to hire certain attorneys in order to get a judge removed from a case. But Sessions, who is about to become the nation's top law-enforcement officer, engaged in such unethical conduct. So did R. David Proctor, now a federal judge in Birmingham who is handling both of our pending federal lawsuits -- one over my unlawful five-month incarceration in Shelby County ("The Jail Case") and one over the wrongful foreclosure on our home of 25 year ("The House Case).
Proctor apparently engaged in unethical behavior over and over during his time as a private-practice lawyer. That's because he and Terry Price, Judge Clemon's nephew, worked together at the Birmingham firm Lehr Middlebrooks Price and Proctor. In fact, Proctor and Price jointly represented Sessions (then Alabama's attorney general) in USX Corp. v. Tieco Inc., a 1990s case that recently drew national scrutiny because of a CNN report about an Alabama state judge's opinion stating that Sessions and his staff had engaged in "pronounced and persistent" prosecutorial misconduct.
That Sessions would stoop to underhanded tactics to get a black judge removed from his case adds to the body of evidence that he is racially insensitive (at best) and flat-out racist (at worst). Such evidence cost Sessions a federal judgeship after the U.S. Senate refused to confirm him in the 1980s. The race issue likely will be raised again when Sessions faces confirmation hearings today and tomorrow as nominee for U.S. attorney general -- and the Clemon case could become a point of stiff questioning from Democrats, at least if they are on the ball.
That Sessions went after Clemon, a historic figure who confronted notorious Birmingham public-safety commissioner Bull Connor, marched with Martin Luther King, and sued Paul "Bear" Bryant to integrate the University of Alabama football team, seems even more flagrant.
As a private attorney before being appointed to the federal bench by Jimmy Carter, Clemon sued numerous corporations and institutions to challenge discriminatory practices that had held sway for decades. That Sessions would show such disrespect to Clemon calls the former's commitment to civil rights into question. It does the same for Proctor, appointed to the federal bench in 2003 by George W. Bush.
Jeff Sessions
How did many federal defendants, often corporations accused of employment discrimination, use unethical tactics to get Judge Clemon (now retired) off their cases? Here's how WSJ explains it:Though Mr. Price denies it, the widespread view in the Birmingham legal community is that corporate clients routinely hire him to keep his uncle off their cases. Judge Clemon, the only African-American federal judge in Alabama's northern district, is generally perceived as sympathetic to workers' claims.
Federal judges have raised questions about the pattern for years. In 1995, Judge William Acker Jr. of the federal district court was assigned a case after Judge Clemon was forced to drop it. In a written opinion, Judge Acker cited 15 cases in the previous 12 years in which Judge Clemon had been knocked off a case because Mr. Price's then-firm had been hired to represent the defendants. Each case involved a different defendant, but Judge Acker wrote that an "intelligent guess" would suggest that Mr. Price had been hired to get rid of his uncle in at least some instances.
That would be the same Judge Acker who cheated me in my employment case against UAB (officially, the University of Alabama Board of Trustees) by granting summary judgment without allowing any discovery, a ruling prohibited by black-letter law. (See Snook v. Trust Company of Georgia, 859 F. 2d 865 [11th Cir., 1988)].) He has no business commenting on any matters related to ethics.
Putting that aside, Sessions (and Proctor and many others) clearly have crossed an ethical line. From WSJ:
Tactical maneuvering to try to get a favorable judge is common in the American legal system, but it can cross ethical lines. Seven justices on the U.S. Supreme Court issued a statement in which they expressed concern that parties hoping to remove particular justices from a case could hire law firms where their own relatives work.
Judge Clemon, in a recent interview, said his relationship with Mr. Price has suffered. The two men haven't spoken in months. "It's obviously not a very comforting feeling to think that one's close relative is being used to remove him from the case," he says.
Mr. Price says he has nothing to apologize for. He says his job is to represent clients, regardless of the judge assigned to the case. "I'm not doing anything wrong," he says.
This goes way beyond family strife to cut at the very heart of our justice system:
Court rulings say it's a breach of ethics to hire a lawyer "solely or primarily for the purpose of disqualifying the judge." Though deciphering motive is usually difficult, lawyers found to have engaged in such practices could face professional disciplinary proceedings.
Look for the Clemon matter to be raised at Sessions' confirmation hearings. If it isn't, Democrats are not doing their jobs. Our research indicates neither Sessions nor Proctor has faced disciplinary proceedings for unethical actions. It's time now that they both are unmasked.
