Abdul Kallon
Polls show the 2012 presidential race is a virtual dead heat, even though Republican candidate Mitt Romney is deeply flawed. That suggests quite a few Democrats who enthusiastically supported Barack Obama in 2008 are not so enthusiastic at the moment. In fact, it seems a significant number of them are prepared to stay home on election day in November.If the election were held tomorrow, I would be among those Democrats. I could write a 100-page treatise on the reasons I have come to hold Barack Obama in utter contempt. They all have to do with Obama's stupefying failures on justice issues, which were driven home again last week by the resentencing of former Alabama Governor Don Siegelman to almost six years in prison for "crimes" that do not exist under the law.
As a resident of Alabama, I see the Siegelman fiasco as clear evidence that a modern strain of Stalinism has come to the American South. But on an even more personal level, my disdain for Obama can be summed up in two words--Abdul Kallon.
Probably the single most important personnel decision Obama has made in our state was the appointment of the 43-year-old Kallon as a federal judge in the Northern District of Alabama. It's a lifetime job, and unless Kallon meets an untimely demise, he could be handing down rulings for another 40 years or more.
That's a scary thought because my wife and I have had two cases before Kallon--and he butchered them both. I've already provided details on Kallon's bungling of our lawsuit against unethical debt collectors. Now, let's consider "his Honor's" actions in a case that resulted in the state-sponsored theft of the full property rights to our house.
Kallon used something called the Rooker-Feldman doctrine to cheat us out of our rights to due process. The record clearly shows that no hearing was conducted on a sheriff's sale of our house, even though we properly contested it under Alabama law. But Kallon allowed our constitutional rights to be trashed by using an arcane legal doctrine that probably is unknown to all but a tiny handful of Americans. And even among lawyers who are well acquainted with it, the Rooker-Feldman doctrine is the subject of spirited debate.
Rooker-Feldman essentially holds that a state judge can violate your constitutional rights but you can do nothing about it in federal court. In other words, those "federally protected rights" we all hear about in high-school civics class are not federally protected at all. If a state judge issues a ruling that violates any of your constitutional rights--due process, equal protection, you name it--Rooker-Feldman might block any chance you have for redress in federal court.
I would argue, along with quite a few lawyers, that Rooker-Feldman is unconstitutional. But that is a post for another day. My point now is this: Regardless of one's views on Rooker-Feldman, Judge Abdul Kallon clearly misapplied it in our case.
Kallon has an undergraduate degree from Dartmouth and a law degree from Penn, so he isn't stupid. Rooker-Feldman is controversial, but it's not all that complicated, so I have every reason to believe that Kallon comprehends what the law actually says. The problem, I suspect, is that Kallon came from the pro-corporate Bradley Arant law firm, where he once made a handsome living by defending employers who discriminate.
Why would a Democrat like Obama nominate a guy who clearly is out to protect corporate and institutional interests? I have no idea, but it has caused me to sour on the president. And my experience with Kallon is just more evidence that Obama has done almost nothing to clean up the justice-related mess he inherited from George W. Bush. In fact, I feel like I might as well have voted for John McCain back in 2008.
I've written quite a bit about the battle over our property, and a post titled "Going On the Attack Against the Thugs Who Stole Our House" provides a summary. A post titled "Showdown in Shelby County, Part II," includes a video of our house being stolen--live and in color--on the courthouse steps in Shelby County, Alabama.
Mrs. Schnauzer and I filed a federal lawsuit over this charade, but Kallon ruled that he did not have subject-matter jurisdiction to hear the case, based on Rooker-Feldman. A little layman's legal research shows that the judge botched the case on relatively simple grounds. That suggests to me that the clearly intelligent Kallon is taking directions from his Bradley Arant buddies, which would amount to a federal crime called obstruction of justice. (That, too, is a post for another day.)
For now, we will cite a few issues where Kallon went wrong. And we will start with a brief explanation of Rooker-Feldman. It's actually a combination of two U.S. Supreme Court cases, one from 1923 and one from 1983. What do these two cases, 60 years apart, mean in the real world. Wikipedia proves a short, sweet summation:
The doctrine holds that lower United States federal courts other than the Supreme Court should not sit in direct review of state court decisions unless Congress has specifically authorized such relief. In short, federal courts below the Supreme Court must not become a court of appeals for state court decisions. The state court plaintiff has to find a state court remedy, or obtain relief from the U.S. Supreme Court.
Given that the nation's highest court hears only a tiny fraction of cases that come before it, Rooker-Feldman means that many victims of constitutional violations in state court have to hope for relief from the same court that screwed them in the first place.
Several exceptions exist to Rooker-Feldman, and some of them applied to our case. I feel certain that Abdul Kallon is smart enough to know that. But his actions suggest that granting us relief would have conflicted with the predetermined outcome that had been assigned to our case.
Here are brief looks at four specific issues on which Kallon screwed us:
* Mrs. Schnauzer's Claims Regarding the House She Jointly Owns--It was undisputed in our federal lawsuit that my wife is joint owner of our house. It also was undisputed that she was not a party to the state lawsuit our neighbor filed, resulting in a judgment of about $1,500 against me. A U.S. Supreme Court styled Lance v. Dennis, 546 U.S. 459 (2006) governs, and it holds:
The Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment.
Kallon clearly had jurisdiction to hear my wife's claims that her property interests had been unconstitutionally violated. He unlawfully refused to hear those claims.
* My Claims Regarding the House I Jointly Own--It's undisputed that I filed a claim of exemption regarding the notice of levy that had been placed on our house over the $1,500 judgment. It's undisputed that Shelby County Judge Hub Harrington, contrary to procedural and statutory law, conducted no hearing on my claim of exemption. The governing case is styled Dale v. Moore, 121 F. 3d 624 (11th Cir., 1997), and it states that Rooker-Feldman applies only where . . .
the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state-court proceeding.
I filed a motion stating that our neighbor, Mike McGarity, had not contested my claim of exemption, so by law, the sheriff's sale could not proceed. I cited Rule 69(f) of the Alabama Rules of Civil Procedure and showed that was binding law where no contest had been filed. Harrington conducted no hearing on the matter and allowed the sheriff's sale to proceed, violating my rights to due process and equal protection of the law. To make matters worse, I was never served with the order that Harrington supposedly issued, so I had zero opportunity to be heard by the judge who ordered an auction of our house.
The constitutional violation here could not be more clear. From Dykes v. Hosemann, 743 F. 2d 1488 (11th Cir., 1984):
At a minimum, due process requires timely notice, in advance of a hearing. . . . Furthermore, "before a person is deprived of a protected interest, he must be afforded an opportunity for some kind of hearing."
I received no notice of Harrington's alleged order, and I had no opportunity to be heard, meaning Rooker-Feldman did not bar my claims. And Dykes spells out a constitutional violation that Kallon unlawfully chose to ignore.
* A Final State-Court Judgment? What Final State-Court Judgment?--Rooker-Feldman can be a pain for those who have been treated unlawfully in state courts. But it comes with significant limitations. Perhaps the most important one is spelled out in Nicholson v. Shafe, 558 F. 3d 1266 (11th Cir., 2009):
Pursuant to the Rooker-Feldman doctrine, lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments.
We were contesting an unlawful sheriff's sale. It did not involve a state-court judgment, final or otherwise. It's questionable whether it even involved a state-court order. If it did, I never was served with one.
By the clear language of Nicholson, my claim was not barred by Rooker-Feldman. Kallon unlawfully barred it anyway.
* Inextricably Intertwined?--In some cases, a federal claim can be barred if it is found to be "inextricably intertwined" with a state-court judgment. What does that mean? A case styled Casale v. Tillman, 558 F. 3d 1258 (11th Circ., 2009) spells it out:
A claim is inextricably intertwined if it would effectively nullify the state court judgment . . . or it succeeds only to the extent that the state court wrongly decided the issues.
My federal claim did not contest the $1,500 state-court judgment. In fact, I did not contest any state-court action. I contested the unlawful actions of Shelby County Sheriff Chris Curry in allowing a sale to proceed, contrary to clear law. I also contested Judge Harrington's unlawful interference in a case that statutorily rests with the sheriff. But neither of those claims had anything to do with whether the $1,500 judgment was or was not correctly decided. And neither would nullify the state-court judgment.
The claims simply stated that if someone was going to try to make a claim on our property, they had to do it as prescribed by Alabama law.
These are only a few of the wrongheaded decisions Abdul Kallon made in the case involving our house. And as you can probably imagine, when someone messes with your house--in our case, it's one we've owned for 23 years, the only home we've known as a couple--it gets personal.
To be cheated by a judge . . . who was appointed by Barack Obama . . . who received my vote for president in 2008 . . . well, that sets off an overpowering sense of outrage in me.
Abdul Kallon has pretty much become the face of the Obama administration in my home. And it's an ugly face that tells me nothing has changed on the justice front since the George W. Bush years.
How two men of color can look the other way while our foundation of civil rights cracks beneath us is incomprehensible to me.
I long have contended that Obama would be sailing toward easy re-election if he had acted responsibly on justice issues. But he chose to "look forward, not backward," allowing GOP criminals like Karl Rove to raise vast sums of campaign money, and now he's in a horse race that could wind up with Mitt Romney in the White House.
If Obama winds up as a one-term president, it's exactly what he deserves.
Swatek--Appellate Brief
