Petition for Writ of Certiorari — Perry v. Lewter

( ) “Fineee

No. 951307 0CT 19 1995,

s-nsmnenceenenerererseansnsenareoesnesseeinsalssn

In The

Supreme Court of the United States

October Term, 1995

RUSSELL PERRY,

Petitioner,

v.

RONALD LEWTER,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

C. MICHAEL SEIBERT

Counsel of Record

4802 Westwood Drive

Huntsville, AL 35810

(205) 852-3592

(205) 859-0002 FAX

QUESTIONS PRESENTED

1. Whether Lewter's SLAPP against Perry clearly has a chilling

effect upon the free exercise of the First Amendment right to petition the

government for redress of grievances by the citizens of Alabama.

2. Whether Perry was denied due process and equal protection of

the law under the Sth and 14th Amendments by the receipt of campaign

contributions from opposing counsel to sitting members of the Alabama

Supreme Court while the case was pending before these same justices,

failure to grant recusal motion on this issue, failure to write an opinion on

a case of first impression in the State of Alabama and the failure to

disclose to counsel the fact of those contributions.

LIST OF ALL PARTIES TO THE PROCEEDING

The following is a list of all parties to the proceedings below:

1. RUSSELL PERRY, Defendant/Appellant/Petitioner;

and

2. RONALD LEWTER, Plaintiff/Appellee/Respondent.

TABLE OF CONTENTS

egy eB sas a a i

LIST OF ALL PARTIES TO THE PROCEEDINGS............ ii

Se IEE, ek OPP Pee oe ae vi

nes SN DTS 52 DSN See... vii

Ss oe Ss eedte a o's $ SO Re Vill

en ie ovaj wavs Cowes ean

SE IEEE,

ey a ai ela bah hn po baw 88 ee eS l

al VC Nb pak 4 wow b BA eo die nes Hh l

eo OSs Cree So nk SS as ee ne 8s 2

I ES ke eect e wees sees eeees 4

SOMME yes cass e en rc t cere week oees 6

ARGUMENT

1. Lewter's SLAPP against Perry clearly has a chilling

effect upon the free exercise of the First Amendment

right to petition the government for redress of grievances

ce fo § g A eere rrr re cree 1]

2. Perry was denied due process and equal protection

of the law under the Sth and 14th Amendments by the

receipt of campaign contributions from opposing |

counsel to sitting members of the Alabama Supreme |

Court while the case was pending before these same

justices, failure to grant recusal motion on this issue,

failure to write an opinion on a case of first impression

in the State of Alabama and the failure to disclose

to counsel the fact of those contributions.............. 19

CAPUEIT i vn cee Raa eben e hanes 3p eos eee eee 24

TABLE OF AUTHORITIES

Cases

Aetna Life Ins. Co. v. Lavoie,

475 U.S. 813, 106 S.Ct. 580, 89 L.Ed.2d 823 (1986) . . 23, 24

Ex parte Melof,

wee ee I, POE Sl. tac oe 22

Green Oil v. Hornsby,

SMA 198)... ................. i4

Hammond v. City of Gadsden,

Wyo WO.ae tae, TING)... oko occ cc eee 14, 16

Humphries v. Lynch,

rae O12 (AM. 1901)... ....) eoee.. court, 20

In re Murchison,

349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 | UR gees 23

Parker v. Connors Steel Co.,

Gos Pam soem eriince. 1908)... .................. 22

Tumey v. Ohio,

273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)....... 23

Ward v. Village of Monroeville,

409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972)....... 23

Constitutional Provisions

WEA. Comet. OF. LG 1d... cc cca ckne ns i. 22 ee 1]

Bes SA MOE EBS oe bck eens cisuv tain aaa eran 12

a eee, GUNN, Bae, OONP. ok. os cos othe vewaukee eee 22

[i Go.” Sy SD eee ae eee eee ee 2, 11, 12, 18, 24

i (2 gh i seer ae, 2, 11, 17, 19

ee ee, EE... os os va ee ebm heuewa _Z2tii:.

Vii

Statutes

ALA. CODE §§ 10-2A-70 through 10-2A-70.2 re 21

ALA. CODE § 10-11-3 (1975) ..................0..... 3, 14, 15

nar Gee SSeS GINS. ..s Shr sore ee daa 3, 22

a EE RPE CUNT RE 3, 10

PRE IEE EL Ui tinus Rocca, . 1, 6

Rules

hcg cc neahi Qh, EEE SEES WED RUT (oka te a Raa aE 13

Other Authorities

Canons of Judicial Ethics,Canon1...................... i

Vill

Canons of Judicial Ethics, Canon 2... 0... ccc eee teens 22

Canons of Judicial Ethics, Canon3 ...........0.0..00 005. 20, 22

Canons of Judicial Ethics, Canon6.........0000 006 eee 22

3 W. Blackstone, Commentaries 361 ............ 00000 cue 22, 23

ee ee ee ee

OPINIONS BELOW

The Alabama Supreme Court order affirmed the judgment below,

without opinion, on May 26, 1995. The order, which is not to be

published, is set out at Appendix A. The Alabama Supreme Court order

denied Petitioner's Motion for Rehearing en banc, without opinion, on

July 21,1995. The order, which is not to be published, is set out at

Appendix B.

All relevant memorandum decisions issued by the trial court, both

during and after trial, appear in Appendix C.

JURISDICTION

The opinion of the Alabama Supreme Court in this cause was

entered on May 26, 1995. A timely petition for rehearing with petition for

rehearing en banc was denied on July 20, 1995.

This Court has jurisdiction to review the judgment under 28

U.S.C. § 1257.

STATUTES INVOLVED

The pertinent portions of constitutional and statutory provisions

involved in this case are as follows:

1. First Amendment to the United States Constitution:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof, or abridging the freedom of speech, or of the

press; or the right of the people to peaceably assemble,

and to petition the government for a redress of

grievances.

2. Fifth Amendment to the United States Constitution:

No person shall ... be deprived of life, liberty, or

property, without due process of law ...

3. Fourteenth Amendment, § | to the United States Constitution:

No state shall ... deprive any person of life, liberty,

or property, without due process of law; nor to deny to

any person within its jurisdiction the equal protection of

the laws.

4. ALA. CODE § 10-1 1-3 (1975, as amended):

Any non-compensated officer of a qualified entity

shall be immune from suit and not subject to civil liability

arising from conduct of the affairs of such qualified entity

except where the act or omission of such officer, which

gives rise to a cause of action, amounts to willful or

wanton misconduct or fraud, or gross negligence.

5. ALA. CODE § 12-1-12 (1975, as amended):

No judge of any court shall sit in any case or

proceeding in which he is interested or related to any

party within the fourth degree of consanguinity or affinity

or in which he has been of counsel or in which is called in

question the validity of any judgment or judicial

proceeding in which he was of counsel or the validity or

construction of any instrument or paper prepared or

signed by him as counsel or attorney, without the consent

of the parties entered of record or put in writing if the

court is not of record.

6. ALA. CODE § 13A-9-51 (1975,as amended):

(a) A person commits the crime of misapplication

of property if, with knowledge that he is misapplying and

that the misapplication involves substantial risk of loss or

detriment to the owner of the property or to a person for

whose benefit the property was entrusted, he misapplies

or disposes of property that has been entrusted to him as

3

a fiduciary or that is property of the government or a

financial institution - oS

STATEMENT OF THE CASE

The SLAPP serving as the basis of the matter being brought

before this Honorable Court was filed by LEWTER on June 24, 1991 in

Limestone County Circuit Court, Limestone County, Alabama. In

Limestone County Circuit Court Case No. CV 91-231 LEWTER charged

PERRY with three counts: (1) malicious prosecution of LEWTER,

charging him with willful neglect of official duty or malfeasance in office;

(2) malicious prosecution of LEWTER, charging him with

misappropriation of public funds; and (3) intentional interference with

business or contractual relations. (C. 14-19).

On February 7, 1994, the civil action finally went to trial before

a Limestone County jury. (C. 7). On February 9, 1994, the case went to

the jury and a verdict was-returned against PERRY in the following

amounts: Seventy-five Thousand Dollars ($75,000.00) in compensatory

damages and One Hundred Thousand Dollars ($100,000.00) in punitive

damages. (C. 7, 200).

a

Pee eT eh

ee ee ee ey Te, ere

On March 11, 1994, PERRY filed numerous post-trial motions

in the Circuit Court, including: (1) Motion for Directed Verdict (C. 194-

198); (2) Motion for Remittitur (C.203-204); (3) Motion for Stay of

Execution Pending Ruling on Post-trial Motions (C. 207-208); (4)

Motion to Review Amount of Damage Awards (C. 205-206); and (5)

Motion for Judgment Notwithstanding the Verdict or, in the alternative,

for a New Trial.(C. 209-230, and amended C. 259-261). On April 13,

1994, Judge Blizzard denied PERRY'S Motion to Supplement the

transcript to include opening statements, voir dire and closing statements,

holding that no objections were made during voir dire and the court

reporter did not take down either opening or closing arguments. (C. 263-

264). The trial court then held a hearing on all other post-trial motions on

June 3, 1994, at which time all such motions were summarily denied. (C.

278-280).

On June 14, 1994, PERRY filed Notice of Appeal to the Alabama

Supreme Court and, per trial court order, posted a supersedeas bond with

the court in the amount of Two Hundred Eighteen Thousand Seven

Hundred Fifty Dollars and no Cents ($218,750.00). (C. 282).

On May 26, 1995, the Alabama Supreme Court affirmed the trial

court decision without opinion. In response, on June 9, 1995, PERRY

5

filed a Motion to Reconsider with the Alabama Supreme Court as well

as a Motion that the justices who received campaign contributions from

counse! for LEWTER while the case was pending before the Court

should recuse themselves. The Alabama Supreme Court denied both such

motions, again without written opinion on July 21, 1995. Having

exhausted all state avenues of recourse, PERRY now appeals to this

Honorable Court pursuant to 28 U.S.C. § 1257.

STATEMENT OF FACTS

On or about the 30th day of April, 1990, citizens of Limestone

County formed a non-profit corporation, Concerned Citizens of

Limestone County, Inc., for the purposes of:(1)resisting the placement of

a proposed solid waste landfill site near their residences; and (2) resisting

local government corruption occurring in Limestone County, Alabama.

The Petitioner, RUSSELL PERRY (herinafter referred to as “PERRY’”),

was named as President of this civic group. The Concerned Citizens

quickly became an effective organized force in successfully blocking the

Limestone County Landfill through actively supporting political

candidates who more responsive to the general public and who promoted

honest government.

RONALD LEWTER (hereinafter referred to as “LEWTER”), the

Respondent, was a foreman under several different county commissioners

and had a reputation within Limestone County District 3 for doing work

on behalf of various commissioners that could have been construed as

illegal. LEWTER was expected at the time of the events underlying this

cause to run against his boss, Walter McGlocklin, in the Limestone

County Commission race for the District 3 county seat. LEWTER had

also been reprimanded numerous times for refusing to take any

instructions from the District 3 Commissioner, Walter McGlocklin.

On or about the 21st day of February, 1991, PERRY observed

LEWTER grading a private drive and supplying or spreading gravel on

the private drive of Mr. Reynolds, a Limestone County resident. PERRY

reported to the Committee for the Concerned Citizens what he had

observed. The Committee voted that PERRY should request an

investigation of the matter by Limestone County authorities. However,

he ran into the local political machine that the Committee had been

formed to resist and was even told by the Limestone County District

Attorney’s office that they would issue no warrant against LEWTER

based upon PERRY’S claims.

Mr. Charles Page, the Limestone County Circuit Court Clerk who

was also acting as the County Magistrate, initially refused to issue the

warrant against LEWTER as requested by PERRY. PERRY had

previously written the Alabama Attorney General’s Office concerning the

problems in Limestone County and its County commissioners, specifically

requesting information regarding state statutes that govern conduct such

as that he had witnessed LEWTER perform. The Attorney General’s

Office sent several opinions of five or six different attorney generals [R.

69], wherein certain laws were cited. PERRY, based upon his own

observations and the Attorney General’s opinions in his possession,

believed that the law governing public employees had been violated by

LEWTER. PERRY then went to the Magistrate Charles Page, presenting

Page the information he had obtained from both the Alabama Ethics

Commission and the Alabama Attorney General’s Office.

In his attempt to stop the continuation of bad government,

PERRY, acting as President of the Concerned Citizens, Inc., formally

requested that a complaint be issued and that LEWTER come in and

respond to that complaint. Mr. Page initially refused PERRY'S request.

Shortly thereafter, Page contacted PERRY at home and told him to come

down to the Courthouse and Page would issue a warrant. Page

represented to PERRY that he had changed his mind because he, Page,

had sought counsel on the matter and believed that PERRY had sufficient

legal grounds under Alabama law to have a warrant issued against

LEWTER.

Mysteriously and totally absent any request or information given

to the newspapers by PERRY, a newspaper reporter, Frank Brock,

appeared at the Courthouse, the location where PERRY was summoned

by Mr. Page. [C. 219-230]. The reporter attempted to cover the story

even before a warrant had been issued. PERRY requested that the

reporter leave, as it was at that point not a public matter. PERRY also

expressed that he did not wish to embarrass LEWTER, but that he merely

wished to stop what he perceived as LEWTER'S frequent misconduct.

Relying on Mr. Page’s expertise as a Magistrate[C. 223], and believing

that the correct laws had been applied by the Magistrate, PERRY signed

the complaint under the statutes, which PERRY had been assured to have

enforcement effect. Apparently, without shepardizing or cross-

referencing the statutes, Mr. Page elected to issued the warrant (in lieu

of a summons) for the arrest of LEWTER.

LEWTER at that time retained Hon. Jimmy Alexander of the

Athens, Alabama law firm of Alexander, Corder & Plunk. At the initial

criminal Court appearance, counsel for LEWTER had the Limestone

County District Court dismiss the case as being under a repealed statute,

and the Court mever reached the merits of the case against LEWTER.

Within an hour of the dismissal, and without the Limestone County

9

District Attorney's Office making any effort whatsoever to transfer the

case to the proper statute under ALA. CopE § 13A-9-51 (1975, as

amended), LEWTER’S counsel, Jimmy Alexander, filed a lawsuit against

PERRY for alleged "malicious prosecution" under the repealed statute.

The media then became tabloid sensationalist on the side of

LEWTER, claiming that LEWTER had been arrested for "illegal"

spreading of dirt, not for malfeasance in office or misuse of public funds.

The reporter Frank Brock, who then worked for the Athens News-

Courier and who was responsible for most, if not all, of the press

coverage in this matter, shortly thereafter obtained a lucrative job with

Waste Management Inc., the company that had initially proposed the

regional dump site that the Concerned Citizens were predominantly

formed to oppose.

This lawsuit, unexpounded but properly characterized as a

SLAPP suit by PERRY’S then counsel; [SR 31], ensued against

PERRY ’S actions taken out of concern as the President of the Concerned

Citizens, Inc.

10

ARGUMENT

1. Lewter's SLAPP against Perry clearly has a chilling

effect upon the free exercise of the First Amendment

right to petition the government for redress of

grievances by the citizens of Alabama.

This case is clearly indicative of a trend of abuse of civil lawsuits

or counterclaims filed against individuals, such as PERRY, for having

communicated his or her views to government decision makers on any

issue of public concern. By the refusal of the Alabama Appellate Courts

to address the unconstitutional effects of such actions, Alabama citizens

will be afraid to reform potential political misconduct for fear of being

civilly liable for exercising their First Amendment right to petition the

government. Furthermore, the actions of both the trial court and Alabama

Supreme Court also deter the rights of Alabama citizens to be free from

corrupt government and officials as well as the right of Alabama citizens

to seek the enforcement of the criminal laws against public officials and

employees. PERRY has clearly been denied his due process and equal

protection rights under U.S. Const. amend. V and XIV, as well as ALA.

Const. Art. I, § 13 (1901, as amended) in this matter.

The type of action underlying this cause, commonly referred as

a "Strategic Lawsuit Against Political Participation" for SLAPP],

1]

involves a politically active citizen, PERRY, who witnessed what he

perceived to be an illegal act by a Limestone County government

employee, LEWTER. PERRY reported the facts as he saw them to a

non-profit corporation, the Concerned Citizens of Limestone County,

Inc., who, in furthering the advancement of good government, authorized

PERRY to seek available legal redress on their behalf for LEWTER'S

apparent violation of the law.

Pursuant to the authorization granted by Concerned Citizens,

PERRY reported what he witnessed to numerous lawfully constituted

government authorities, including the Limestone County Sheriff's

Department, the Limestone County District Attorney's Office, the

Alabama Ethics Commission, the Alabama Attorney General's Office, and

the Warrant Magistrate of Limestone County. By doing so, PERRY

clearly made application "... to those invested with the power of

government for the purposes of redress of grievances or other purposes"

to rectify LEWTER'S apparent violation of the law. ALA. Const. art. I,

§ 25 (1901, as amended); U.S. Const. amend. I. However, no

government body approached by PERRY concerning this matter was

willing or able to correct the situation. As a result, PERRY felt that he

had no choice but to pursue legal means against LEWTER personally,

pursuant to the authority granted him by Concerned Citizens, Inc.

12

In reliance on information obtained by PERRY from

knowledgeable governmental sources, including the Alabama Attorney

General's office and the Alabama Ethics Commission, as well as in

reliance on the assurances given to him by the Limestone County Warrant

Magistrate that a warrant would not issue unless the Magistrate was

convinced that sufficient legal grounds for such a warrant existed,

PERRY sought redress for LEWTER'S apparent violation of the law.

Rather than achieving the goal of cleaning up the government,

PERRY suddenly found himself, on the same day that the criminal

charges against LEWTER were dismissed, the subject of a massive

lawsuit for the "malicious prosecution" of LEWTER. The matter then

took over two years to reach the trial stage, during which time PERRY

suffered crippling financial hardship in defending himself against

LEWTER’S SLAPP.

During the prolonged period between commencement of the civil

action by LEWTER and trial, PERRY filed a Motion For Summary

Judgment, pursuant to ALA.R.Civ.P. 56. In support of this motion,

PERRY filed a supporting affidavit as well as portions of LEWTER’S

deposition in which LEWTER admitted having performed the acts that

PERRY claimed to have witnessed and which served as the basis for the --

criminal action. However, the trial court took no action on this motion.

13

Finally, the matter went before a Limestone County jury panel on

February 7, 1994. After an emotionally charged trial containing numerous

instances of misconduct by both counsel for LEWTER (such as improper

argumentation, see discussion below) and by the Limestone County

Circuit Court (such as the failure to charge the jury on the issue of

PERRY'S immunity from civil liability under ALA. CoDE § 10-1 1-3),

PERRY suffered a One Hundred and Seventy-Five Thousand Dollar

($175,000.00) judgment being rendered against him as a citizen seeking

good government.

After being burdened with this excessive and clearly

disproportionate judgment, PERRY sought relief from the trial court,

asking that the flawed jury verdict be set aside because the verdict

included a sum which was totally unsupported by the evidence and the

verdict resulted from bias, passion, corruption or other improper motive,

pursuant to the principles enunciated by the Alabama Supreme Court in

Hammond v. City of Gadsden, 493 So.2d 374 (Ala. 1986) and Green Oil

Co. v. Hornsby, 539 So.2d 218 (Ala. 1989). However, the trial court

aggravated the entire matter by denying any semblance of due process as

required by Hammond, Green Oil, and both the United States and

Alabama Constitutions, for such hearings.

First, at the Hammond hearing PERRY was not allowed to testify

14

a

as to his intent as it related to the issue of his alleged culpability (R. 397-

400, 415-421, 442-444), even though this issue is one of many factors

which the court must review in the proceeding. This issue is also

important in that PERRY'S immunity under ALA. CoDE § 10-11-3 would

only become negated if LEWTER had specifically proven at trial that

PERRY had acted in a willful or wanton manner, fraudulently or was

grossly negligent in his actions.

Second, the trial court would not allow PERRY the opportunity

to call Charles Page, the Limestone County Warrant Magistrate, to testify

concerning his duties and representations which he made to PERRY

concerning the legality of the warrant. (R. 355-356, 388-390). This

testimony would have been vital to show that PERRY did not have the

malice required to support the jury verdict.

Third, the trial court did not allow PERRY to call LEWTER as

a witness on the issues of proof of attorney's fees allegedly paid in

defense of the criminal prosecution (a claimed amount of $3 500) nor on

the issue of LEWTER'S past criminal record, issues which in Alabama

bear a significant impact on the amount of compensatory and punitive

damages awarded by the jury. (R. 357-358, 388-393).

Fourth, the trial court not only refused to consider the improper

15

and highly inflammatory closing arguments made by counsel for

LEWTER at trial, but Judge Blizzard physically left the bench,

instructing PERRY'S counsel to "... read the matters into the record"

because he "... was not going to consider them." (R. 313-319, App. D-1).

The judge acted in this manner despite the fact that improper closing

argument is another factor that the trial court must consider when

determining whether or not a jury verdict is flawed. Hammond, supra.

Fifth, the trial court did not make LEWTER present evidence as

to any "damages" he might have suffered as a result of PERRY'S actions.

In fact, the only "damage" claims made by LEWTER was his testimony

that he “worried, lost sleep and felt shame, embarrassment and

humiliation about being arrested." (R. 137-138).

And, finally, the trial court, through granting LEWTER'S pre-

trial Motion in Limine and allowing such limitations to apply in the

Hammond hearing as well, prevented PERRY from going into such

pertinent issues as: (1) LEWTER'S prior arrests and convictions; (2)

prior acts of and accusations of LEWTER performing illegal work on

private property with county equipment, materials and labor; (3)

LEWTER being drunk on the job while operating bulldozers and other

heavy machinery; (4) LEWTER'S prior poor job performance, ratings and

reviews by the previous County Commissioner; and (5) other matters

16

which would have served to limit any damages allegedly suffered by

LEWTER. Asa result, PERRY not only was punished for exercising his

First Amendment right to petition the government, but he was also Clearly

denied his Fifth and Fourteenth Amendment rights of a fair trial pursuant

to due process of law.

Furthermore, this case has already had a pronounced impact upon

innocent third parties. Affidavits of members of the Concerned Citizens

of Limestone County, Inc., were presented at the post-trial motion

hearing before the trial court. (R. 363). These affidavits stated that the

lawsuit and judgment had a chilling effect on their willingness to

participate in local government or bring to the attention of government

authorities acts that they perceive to be illegal. (C. 270-277).

Furthermore, since the verdict in this cause LEWTER has filed suit

against Alan Leff, Vice-President of Concerned Citizens. In the

subsequent action LEWTER claims that pictures Leff took of LEWTER

performing work of questionable legality is "an invasion of privacy."

Thus, it becomes quite apparent the ultimate thrust of the SLAPP

campaign being conducted by LEWTER.

On May 26, 1995, almost one year since the matter was appealed,

the Alabama Supreme Court chose to exacerbate an already bad situation

by affirming the lower court judgment, without issuing an opinion on the

17

pertinent issues as well as taxing appellate costs against PERRY. By

failing or refusing to address the important constitutional questions at

issue in the case, the Alabama Supreme Court chose to reward those who

abuse the judicial process for political purposes and to slam the door

against the unfettered exercise of the First Amendment by Alabama

citizens.

On June 9, 1995, counsel for PERRY filed a Motion to

Reconsider with the Alabama Supreme Court, asking that body to

address the constitutional problems at issue with LEWTER'S SLAPP

against PERRY. Counsel further noted the possible constitutional

problems over certain justices receiving campaign contributions from

counsel for LEWTER and other members of the law firm of Alexander,

Corder, Plunk & Baker, P.C.,the firm representing LEWTER, during the

period that the case was pending before the Supreme Court. [see

discussion below]. Once again, the Alabama Supreme Court chose to

summarily deny PERRY'S motion’ without addressing a single

constitutional issue underlying the cause.

18

2. Whether Perry was denied due process and equal

protection of the law under the Fifth and Fourteenth

Amendments by the receipt of campaign

contributions from opposing counsel to sitting

members of the Alabama Supreme Court while the

case was pending before these same justices, failure to

grant recusal motion on this issue, failure to write an

opinion on a case of first impression in the State of

Alabama and the failure to disclose to counsel the fact

of those contributions.

On June 9, 1995, Petitioner moved for the recusal of any Alabama

Justice who had accepted campaign contributions from the law firm of

Alexander, Corder & Plunk, the successor firm of Alexander, Plunk,

Corder & Baker, P.C., Jimmy E. Alexander or any of the other members

of his law firm.

Within forty-eight hours prior to filing the Motion for Recusal on

June 9, 1995, counsel for Petitioner had learned that the following

members, and perhaps others, of the Alabama Supreme Court had

accepted campaign contributions from the law firm or the individual

members thereof representing Respondent as represented in the following

table:

19

ALABAMA POLITICAL CAMPAIGN AMOUNT

JUSTICE CONTRIBUTOR CONTRIBUTED

Shores Alexander, Corder & Plunk $ 2,500.00

Houston Alexander, Corder & Plunk $ 500.00

Kennedy Alexander, Corder, Plunk &

Baker $ 1,500.00

Cook Jimmy E. Alexander $ 800.00

Alexander, Corder, Plunk &

Baker $ 500.00

Alexander, Corder, Plunk &

Baker, P.C. $ 1,000.00

Alexander, Corder, Plunk &

Baker, P.C. $ 449.00

Almon Jimmy E. Alexander $ 833.34

James M. Corder $ 833.33

John Plunk $ 833.33

TOTAL $ 9,749.00

When factors arise in an action, whether at trial or at the appellate

level, such that it is reasonable for a party or members of the public or

counsel to question the impartiality of one or more judges, recusal of that

judge or group of judges is required. Canons of Judicial Ethics, Canon

3, Subdivision c(1). Humphries v. Lynch, 579 So.2d 612 (Ala. 1991).

20

It is reasonable for PERRY, counsel for PERRY and members of

the public to question the impartiality of any Alabama judge or justice

who has received campaign contributions from counsel for LEWTER,

particularly in light of the following factors:

1. The fact of the acceptance of campaign contributions by five

Alabama justices from LEWTER’S counsel was not disclosed to

PERRY’S counsel by either the Alabama Supreme Court or by counsel

for LEWTER.

2. The Notice of Appeal in this case was filed with the Alabama

Supreme Court on June 14, 1994. Contributions totalling Two Thousand

Nine Hundred and Forty-nine Dollars ($ 2,949.00) were made to

Alabama Justices Kennedy and Cook (both of whom participated in the

Alabama Supreme Court decision of May 26, 1995 as well as the denial

of the rehearing motion on July 21, 1995) by counsel for LEWTER

during the period PERRY’S appeal was pending before the Alabama

Supreme Court.

3. Two of the contributions made by the law firm of Alexander,

Corder, Plunk & Baker, P.C., to Justices Kennedy and Cook during the

pendency of this appeal appear to be in violation of Alabama law. ALA.

Cope §§ 10-2A-70 through 10-2A-70.2 (1975, as amended).

21

_ 4. The Alabama Supreme Court apparently failed or refused to

take notice of the intense public interest during the 1994 election of

Alabama Supreme Court Justices concerning the issue of campaign

contributions by lawyers and law firms to candidates for, or a Justice of,

the Alabama Supreme Court while that lawyer or law firm has cases

pending on appeal before the court.

Disqualification of judges and justices in Alabama is governed by

a number of sources. ALA. CONST. amend. 328, § 6.19; Canons of

Judicial Ethics, Canons 3(c) and 6; ALA. CopE § 12-1-12 (1975, as

amended); Ex parte Melof, 553 So.2d 554 (Ala. 1989). Not only must

these “black-letter” rules of law be observed, but the judge’s decision

whether or not to recuse himself or herself should also be informed by

principles of fairness, fair play, full disclosure, avoidance of the

appearance of impropriety, and the upholding of the integrity and

independence of the judiciary. Canons of Judicial Ethics, Canons | and

2.

Inherent in all these rules and principles that a judge be recused

if his or her impartiality is questioned, is the principle that our system of

justice must not only do justice, but must satisfy the appearance of

justice. Parker v. Connors Steel Co., 855 F.2d 1510 (1 1th Cir. 1988). A

judge is sworn to administer impartial justice and his “... authority greatly

22

depends upon that presumption and that idea.” 3 W. Blackstone,

Commentaries 361.

It is a violation of the Fifth and Fourteenth Amendments of the

United States Constitution “... to subject [a person’s] liberty or property

to the judgment of a Court the judge of which has a direct, personal,

substantial, pecuniary interest in reaching a conclusion against him in his

case.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822, 106 S.Ct. 580,

89 L.Ed.2d 823 (1986). See also Tumey v. Ohio, 273 U.S. 510, 47 S.Ct.

437, 71 L.Ed. 749 (1927). But, the degree or kind of interest is sufficient

in a particular case to disqualify a judge from sitting cannot be defined

with precision. /n re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625,

99 L.Ed. 942 (1955). This Court has also held that a judge should be

disqualified and recuse himself if the situation is one which would offer

a possible temptation to the average judge to lead him not to hold the

balance “... nice, clear and true.” Ward v. Village of Monroeville, 409

U.S. 57, 60, 93 S.Ct. 80, 83, 34 L.Ed.2d 267 (1972).

As Justice Brennan’s concurring opinion in Lavoie makes clear,

however, a judge’s interest that is “direct, personal, substantial and

pecuniary” is not the only test for disqualification and recusal. Lavoie at

1589. Non-pecuniary interests have also been found to require recusal as

a matter of due process. Ibid. An interest is also “... sufficiently ‘direct’

23

if the outcome of the challenged proceeding substantially advances the

judge’s opportunity to attain some desired goal even if that goal is not

actually obtained in that proceeding.” Ibid.

Fairness, due process, avoidance of impropriety, and most

particularly the avoidance of the appearance of impropriety mandated the

recusal of each of the Alabama Justices who received campaign

contributions from either Jimmy Alexander or the law firm of Alexander,

Corder, Plunk & Baker, P.C., counsel for LEWTER. As the Alabama

Supreme Court failed to do so, without written opinion on the issue, it is

obvious that PERRY has been denied a full and fair adjudication on this

issue and, as a result, denied his constitutional right of due process under

the Fifth and Fourteenth Amendments.

CONCLUSION

This case involves issues which remain hotly disputed both in the

State and Federal court systems. Extremely important Constitutional

rights are at stake.

The Petition Clause of the First Amendment is one of our oldest

and most fundamental civil rights, guaranteeing and encouraging citizen

involvement in the political arena at all levels. It is inconceivable that the

24

Founding Fathers meant for this right to be brazenly subverted through

misuse of the judicial process.

Furthermore, the fact that three of the Alabama justices who

directly participated in rendering the decisions against PERRY received

campaign contributions from counsel for LEWTER gives an appearance

of impropriety which taints the decisions rendered by the Alabama

Supreme Court. The Alabama Supreme Court also actively aggravated

the appearance of impropriety by its refusal to address the issue even

though counsel for PERRY timely brought the matter before that court.

Given that the Alabama Supreme Court had the possible taint of

impropriety in this matter, its failure to even address the matter clearly

violates PERRY’S constitutionally guaranteed right of due process under

the law.

Accordingly, this Court should grant certiorari.

C lw, submitted,

WN sche Sober

C. MICHAEL SEIBERT

Counsel of Record

4802 Westwood Drive

Hunstville, AL 35810

(205) 852-3592

Attorney for Russell Perry

25

STATE OF ALABAMA -- JUDICIAL DEPARTMENT

THE SUPREME COURT

OCTOBER TERM, 1994-95

(Released May 26, 1995)

1931297

Russell S. Perry v. Ronald Lewter

Appeal from Limestone Circuit Court (CV 91-231)

SHORES, JUSTICE.

AFFIRMED. NO OPINION.

See Rule 53 (a)(1) and (a)(2)(B), Ala. R. App. P.; Westbrook v.

Gibbs, 285 Ala. 223, 231 So.2d 97, 103 (1970); 7:R. Miller Mill Co. v.

Ralls, 280 Ala. 253, 192 So.2d 706, 716 (1966); Robbins v. Voigt, 280

Ala. 207, 191 So.2d 212 (1966); Gleichert v. Stephens, 291 Ala. 347,

280 So.2d 776, 777 (1973); Stokes v. Long-Lewis Ford, Inc., 549 So.2d

51, 52 (Ala. 1989); Merrell v. Joe Bullard Oldsmobile, Inc., 529 So.2d

943, 946 (Ala. 1988); Hammond v. City of Gadsden, 493 So.2d 1374

(Ala. 1986); Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala. 1989); and

S.S. Kresge Co. v. Ruby, 348 So.2d 484, 487 (Ala. 1977).

Maddox, Houston, Kennedy, and Cook, JJ., concur.

AppA- 1

IN THE SUPREME COURT OF ALABAMA

July 21, 1995

1931297

Russell S. Perry v. Ronald Lewter. (Limestone: CV 91-231)

NOTICE

The application for rehearing filed in this cause is overruled. No

opinion written on rehearing.

SHORES, J. - Maddox, Houston, Kennedy and Cook, JJ.,

concur.

App. B- |

IN THE CIRCUIT COURT FOR LIMESTONE COUNTY,

ALABAMA

RONALD LEWTER,

PLAINTIFF,

VS. CIVIL ACTION NO. CV 91-231]

RUSSELL S. PERRY,

DEFENDANT.

ORDER

(Released June 3, 1994)

The Defendant's Motion for a New Trial or in the Alternative for

a Judgment Nothwithstanding thé Verdict and for Remittitur was

submitted upon testimony taken ore tenus and arguments of the

attorneys.

The jury in this case returned a verdict in favor of the Plaintiff and

against the Defendant in the amount of $75,000.00 compensatory

damages and $100,000.00 punitive damages. The complaint was based

upon malicious prosecution. It was not disputed that the Defendant

swore out a warrant for the Plaintiff's arrest and that the charge was

dismissed in the District Court of Limestone County, Alabama.

The Defendant has alleged juror misconduct. Four jurors testified.

There is no evidence of juror misconduct. It was not shown by the

evidence that any juror visited the scene of the incident. The testimony

of one juror was that one juror who could not be identified had said that

he had visited the scene. There is no evidence as to who this juror was or

App. C- 1

what his conduct might have consisted of. There was no evidence that

any juror commented about an investigation at the scene or his

conclusions. Any such alleged conduct, even if it existed, is not shown to

have influenced the verdict in this case.

Testimony was taken on the issue of the effect of the verdict on

the Defendant, his family, his finances. The Defendant is shown by the

evidence to have a considerable estate and earns a high income. The

Court, having considered the Defendant's culpability and the impact as

presented from the evidence on the parties, finds that the verdict is

supported by the evidence. The verdict was not based upon passion,

corruption or improper motive, and that the award is not excessive as a

matter of law based upon the evidence presented to the Court.

The Court finds from the evidence that the alleged errors at trial,

which are alleged in the motion, as amended, and which have each been

consisdered by the Court, are not error and that the trial was free of error

that would support a new trial.

A trial judge is not to substitute his judgment on the facts for that

of the jury.

The Court observed the entire jury venire as well as the final

jurors who actually heard the evidence in this case and the Court finds

that they appeared to be conscientious and went about their duties in a

serious and proper manner. There were seasoned and competent trial

counsel on both sides. The jury recognized the seriousness of the issues

presented and it appears to the Court that the Defendant received a fair

and impartial trial before the jury.

The amount of a civil fine is largely left to the discretion of the

jury. The Constitution allows juries to fix punitive damages. The record

established the culpability of the Defendant and the evidence established

clearly that the Defendant's conduct was intentional. The Court further

App. C - 2

finds that the impact upon the Defendant is not excessive. No evidence

was presented regarding the impact of the verdict upon the Plaintiff. So,

therefore, the Court finds that no grounds exist for setting aside the

verdict on the basis of the impact on the Plaintiff. The Court has also

considered the desirability to discouraging others from similar misconduct

and finds the jury award is not excessive. The Court has considered the

compensatory damages in this case and finds that they too are supported

by the evidence.

The Court finds that the jury award of damages is not the result

of bias, passion, corruption or improper motives. The Court further finds

that the punitive damages awarded in this case are not excessive as

against the Defendant, Russell S. Perry. The Court further finds that there

is no evidence to support a new trial or a judgment notwithstanding the

verdict, or a remittitur.

It is, therefore, ORDERED, ADJUDGED and DECREED by the

Court that the Defendant's Motion for a New Trial or in the Alternative

for a Judgment Notwithstanding the Verdict be and the same are hereby

denied.

Dated this 3rd day of June, 1994.

/s/ Henry W. Blizzard

Circuit Judge

App. C -3

IN THE CIRCUIT COURT FOR LIMESTONE COUNTY,

ALABAMA

RONALD LEWTER,

PLAINTIFF,

VS. CIVIL ACTION NO. CV 91-231

RUSSELL S. PERRY,

DEFENDANT.

ORDER

(Released April 12, 1994)

Came the Defendant and moved to have the Court order that the

transcript which has heretofore been furnished to the parties be

supplemented to include opening statements, closing statements, and voir

dire. The Court finds that there were no objections by either party during

voir dire, the opening and closing statments, and that the opening and

closing statements were not taken down by the Court Reporter, but were

electronically recorded, and it appearing that no objection having been

made to the voir dire, the opening and closing statements, that there is

nothing within these matters which can be considered by the Court on the

pending motions.

It is, therefore, ORDERED, ADJUDGED and DECREED by the

Court that the Motion to Supplementthe Record is, therefore, denied.

The Defendant offers evidence in Court of juror misconduct. On

Motion of the Defendant, this matter and the Motions for Remittitur and

for Judgment Notwithstanding the Verdict or for New Trial are hereby

continued to be reset.

App. C - 4

The Defendant's Motion for a Stay of Execution on the Judgment

is hereby granted on the condition that the Defendant file a supersedeas

bond, and that the Defendant is allowed ten (10) days to file the

supersedeas bond.

Dated this 12th day of April, 1994.

/s/ Henry W. Blizzard

Circuit Judge

App. C -5

RECORD ON PREJUDICIAL NATURE OF

OPENING AND CLOSING STATEMENTS

**248

(Court Transcript, pp. 312-319)

MR RYAN: Your Honor, before -- can we get into -- you asked me

about what statements were made that I claimed are prejudicial such that

they would require a new trial or judgment notwithstanding the verdict --

THE COURT: Well, were they objected to?

MR. RYAN: No, Your Honor, they were not.

THE COURT: Well, I will not consider them if they were not objected

to at the trial.

MR. RYAN: Can we make an offer of proof in that regard, Your

Honor?

THE COURT: All right.

MR. RYAN: Thank you.

THE COURT: But I'm not going to consider them, and I'll be back in

just a minute. You tell me when you've read them on the record because

I'm not going to be a party to that.

(Whereupon the following was had and done of record

outside the presence of the Court)

MR. RYAN: All right. During the opening part of the closing

arguments by Mr. Baker at trial he vouched for the credibility of a virtual

App.D- 1

witness, Jimmy Fry, the District Attorney of Limestone County, by

referring to him as Mr. Law Enforcement in Limestone County.

MR. ALEXANDER: We're going to object to the recitation by the

present counsel for the Defendant as to what was said, what he claims

was said in a closing statement as not being the best evidence. The

attorney was not there, and we'll make a continuing objection to his

hearsay statement, and we do specifically object to any statements by the

Defendant's counsel on the grounds of hearsay. It is not the best

evidence.

MR. RYAN: If your objection is to the best evidence, would you join

me then in asking that the closing arguments of yourself and Mr. Baker

be transcribed by the court reporter at our expense?

MR. ALEXANDER: You've contacted the Court repeatedly on this

matter without consulting me --

MR. RYAN: No, sir, I have not, and I will not stand here and listen to

any further --

MR. ALEXANDER: I'm not going to ask the court reporter to do

anything.

MR. RYAN: Okay. May I continue, please?

MR. ALEXANDER: Not -- with the understanding we have our

continuing objection.

MR. BAKER: Address the Court and not us. Make your record.

MR. RYAN: The Court is not here.

MR. BAKER: Make your record.

App. D- 2

MR. ALEXANDER: I do not respond to you.

MR. RYAN: _I would like to point out, if it's notobvious from the

record, the Judge is not even in the courtroom at this time, and it is

required that he consider these matters for the purposes of bias and

prejudice.

Going on, as I understand it, there was a motion in limine granted

by the trial court that was filed by the Plaintiff had requested -- or that

the order stated that no prior acts of the Plaintiff could be gone into by

counsel for the Defendant and that Plaintiffs expressly waived any claim

for damage to reputation during Mr. Baker's closing argument. He stated

that he had stolen something from Mr. Lewter, your peace of mind, your

ability to hold your head up. We contend that that is damage to

reputation. He also expressly stated a little bit later on in his argument

that Mr. Lewter had been publically [sic] humiliated. If that's not a claim

for damage to reputation, I don't know what is. He later stated shortly

after that that he and his family will have to live with the stigma this man

has put on him. That's another reference to the reputation claims that

were expressly waived and ordered by the Court not to be gone into.

During Mr. Alexander's closing argument to the jury, he again

vouched -- well, not he again, but he also vouched for the credibility of

a virtual witness, Jimmy Fry, the District Attorney of Limestone County.

Mr. Alexander stated quote there's no better District Attorney in the

State of Alabama end quote.

Mr. Alexander later stated in his argument in referring to Mr.

Perry that Mr. Perry was guilty of quote sleazy, slimy conduct end quote

as an argument and an attack on the witness that was not warranted by

the evidence. It was prejudicial and inflammatory and should not have

been allowed.

Mr. Alexander later repeated and continued references to quote

App. D -3

the working man of Limestone County end quote. Code words or an

apparent reference to the lack of wealth or poverty of Mr. Lewter. He

also made references to Mr. Perry's quote political agenda end quote. We

maintain that there was no evidence in the record to support that and that

substantial rights of the Defendant.

Mr. Alexander further stated in his closing arguments by vouching

again for a witness in this case, Mr. Lewter, and also injected a personal

belief about Mr. Lewter’s apparent mental operation or good faith in

grading the driveway in question. Mr. Alexander stated quote when I

worked for the highway department in the fifties and sixties I didn't know

where the right of way was and I may have gotten off of it end quote. We

maintain that's vouching for the creditability of Mr. Lewter, the Plaintiff,

and was improper and should have been disallowed on the Court's own

motion even in the absence of an objection. It was imflammatory and

prejudicial to the Defendant's substantial rights.

Again, Mr. Alexander made reference to Mr. Perry having, quote

his own political agenda, end quote, and also stated, quote you don't go

into the work place and try to have your own agenda, end quote.

All of these statements by counsel we feel they individually or in

some [sic] total adversely and substantially affected the substantial rights

of the Defendant even in the absence of an objection. It impaired Mr.

Perry's ability to have a fair trial. The Court should have on its own

motion sustained or made some comment to the jury to disregard those

comments and polled the jury to find out if they could have disregarded

those comments and rendered substantial justice in the case without

consideration of all of those comments separately and severally.

MR. ALEXANDER: We would like to let the record that there were no

objections made whatsoever by the Defendant nor by the Defendant's

attorney of record who tried the case to any of the matters which the

App. D-4

Defendant now seeks to object to.

MR. RYAN: Well, as I stated before, I was not trial counsel for Mr.

Perry at the time this trial was had and conducted, and I was not present

and I did not know at the time what transpired. We don't have a

transcript of those proceedings; and therefore, I can't really respond to

what Mr. Alexander had to say about them.

THE COURT: Okay. Have you got them in the record, then?

MR. RYAN: Weare finished with the --

THE COURT: Opening and closing?

MR. RYAN: Yes, sir. We're finished with that area of it.

*** * &

App.D -5