There was more going on before Judge Acker threw his temper tantrum

NMC over at folo unearthed some very interesting filings in US. v Scruggs. The three “so-called” special federal prosecutors appointed by “so-called” Judge Acker to prosecute Scruggs for criminal contempt were confused about the timing for appeal of Judge Vinson’s order. Criminal appeals have to be within 30 days, other appeals have 60 days to file.

. . . a little over two weeks after thirty days, the special prosecutors filed a motion for more time to file a notice of appeal, saying they had inadvertently misunderstood the rules. The motion is Exhibit B to Judge Acker’s order (found here).

Scruggs’s lawyers (Keker’s firm) fired back with a forceful and blunt response that this wasn’t allowed, and Judge Vinson almost immediately agreed, ruling that there was no basis to extend the time for a notice of appeal.

Well, Judge Acker apparently liked the description of the facts about Scruggs’s behavior in the special prosecution’s motion (although he does admit Judge Vinson was correct in overruling it), and so Judge Acker attached the motion as an exhibit to his opinion from yesterday.

Scruggs’ response is very telling about what happened. The special three called for evidentiary hearings in the appeal, which is very, very odd. I mean, you can’t do that! One of these special three actually works in the US Atorney’s office in Alabama! Oh my goodness! In any case, I thought this footnote in the Scruggs Response was spot on:

Regardless, the evidentiary hearings sought by the special prosecutors would accomplish nothing. While the special prosecutors demand a hearing on whether or not Scruggs was counsel of record for the Rigsbys, this Court has already concluded that he was not, and that he could not be subject to the Court’s jurisdiction under an aiding and abetting theory either because the Rigsbys themselves did not commit contempt. Doc. 34, at 13-21. Moreover, while the special prosecutors request a hearing on whether Scruggs’s delivery of the documents to Attorney General Hood was a “sham,” the Court already concluded that: “Regardless of the subjective intent that Hood may have had when he requested the documents, the undisputed fact is that he did make such a request. The objective language of the injunction expressly authorized the law enforcement exception . . . .” Doc. 34, at 25 (emphasis added). The proposed evidentiary hearing would only bring forth evidence on an issue the Court concluded is ultimately irrelevant.

This is something I keep trying to tell Rossmiller. No matter what the reason for doing so, it was not against the law. It drives him nuts that Scruggs delivered the documents to Hood specifically to keep from giving them to Acker and acts like it was a sham, but Hood specifically said that that was the reason for requesting the documents.

From Judge Vinson’s opinion:

The injunction became effective on Monday, December 11, 2006, when Renfroe posted a bond with the court. Based on Hood’s prior oral request and his assurance that he would confirm that request in writing, Scruggs sent the documents to the Attorney General the following day, December 12th. It was not until later that day that Hood’s assistant, Courtney A. Schloemer, sent the expected request via e-mail to Scruggs. The e-mail stated that Hood’s office was “not comfortable that the protective measures put in place by the Court will be effective in keeping these documents out of the grasp of State Farm.” See Renfroe Doc. 79, Ex. 2. As they had discussed on Friday and over the weekend, Hood asked Scruggs to provide the Attorney General’s Office “with your copy of the documents from Cori and Kerri, and we can return them to you at a time when our investigation is not in jeopardy by the possibility of disclosure of those documents to the wrong party.” Id.

And the fact that Judge Vinson found Scurggs was not directly before the court and dismissed the criminal contempt case for lack of personal jurisdiction over Scruggs also drives Mr. Rossmiller nuts and obviously Judge Acker too, but the federal judge appointed by the 11th Circuit found:

A. This court has no personal jurisdiction over Scruggs
For jurisdictional purposes, the undisputed facts are that Scruggs was not a party, nor was he an attorney-of-record or at any time make an appearance in, the Renfroe case. Subject to exceptions discussed infra, it is axiomatic that courts only have power and jurisdiction to enjoin parties before the court. See Scott v. Donald, 165 U.S. 107, 117, 17 S. Ct. 262, 41 L. Ed. 648 (1897) (“The decree is also objectionable because it enjoins persons not parties to the suit.”); Infant Formula Antitrust Litigation, MDL 878 v. Abbott Laboratories, 72 F.3d 842, 842-43 (11th Cir. 1995) (court lacks jurisdiction to issue preliminary or permanent injunction against non-party); Doctor’s Assocs., Inc. v. Reinert & Duree, P.C., 191 F.3d 297, 302 (2d Cir. 1999) (“[A] court’s in personam order can bind only persons who have placed themselves or been brought within the court’s power.”) (citations omitted); Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir. 1996) (“Courts do not write legislation for members of the public at large; they frame decrees and judgments binding on the parties before them. For that reason, courts of equity have long observed the general rule that a court may not enter an injunction against a person who has not been made a party to the case before it.”) (citing cases); see also 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2956, at 335 (2d ed. 1995). If one is not bound by an injunction, it naturally follows that he cannot be held in contempt for violating that injunction. [emphasis mine]

Now I call that citing the law. I would think it would be pretty hard to argue with that. In fact, you really cannot based on the law, so that is why Judge Acker had his little temper tantrum and you will notice he did not base his decision on any law because there isn’t any to base it on. Based on Judge Vinson’s ruling, I can’t understand how he still thinks he can impose sanctions against Scruggs or the Rigsbys. So-called Judge Acker and his very special so-called federal prosecutors missed their deadline to appeal so Judge Acker issued his order instead. Is that legal?

4 thoughts on “There was more going on before Judge Acker threw his temper tantrum”

  1. Perhaps the reasons insurers did not like Hood getting the documents was because he wasn’t in on the civil settlement as is now being alleged.

    Like you have pointed out repeatedly Belle, if Hood was in bed with Scruggs then why would he have needed to pay Patterson & Balducci to intercede?

    Both you and NMC have done excellent work on the Alabama case.

    sop

  2. Oh, he definitely wasn’t in on the settlement – remember the correspondence documenting that for certain.

    btw, who was in on the settlement was George Dale, now with Adams and Reese.

  3. Your absolutely right Nowdy. George and Robert Wooley are all cuddled up at A&R these days. I think this is where Perdigao is particularily important for us.

    Ever wonder how Acker fits in this? I know I do.

    sop

  4. Yeah, I do, he seems to swing into action at interesting points on the time line.

    State Farm has a motion before him now, btw.

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