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Code of Honor: What Does it Mean?

Bill Britt

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By Larry Sims

To convince Americans to ratify the Constitution, James Madison offered this contribution: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. Federalist 51.”  

What did Madison mean by “auxiliary precautions?”  This is an indisputable truth: We are an imperfect people ruled by an imperfect government with imperfect leaders.  Elections are dependent upon the people, but the hearing of government is often impaired.  How do “auxiliary precautions” constraint the activities of government and those hired by the people to lead it?

At the federal level we rely on our elected representatives (the President and Senators) to use wisdom in choosing members of the Judiciary, who are appointed for life.  Options are available to remove errant Judges, but they are rarely exercised.

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Simple guidelines are in place to define honorable behavior. These “auxiliary precautions” are called the Judicial Canons. Those offered by the American Bar Association are worth repeating:

Canon 1 

A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Canon 2

A judge shall perform the duties of judicial office impartially, competently, and diligently.

Canon 3

A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”

These simple statements of the judicial code of honor will be put to the test in just a few days.  The U. S. Supreme Court will be reviewing a case on state law regarding same sex marriage.  One apparent ethical problem rests on the shoulders of Justices Ginsberg and Kagan.  Both have presided over same sex weddings, one in judge’s chambers in the U. S. Supreme Building.  This case will test the definitions of impartially, integrity, competence and conflict of interest. Will Ginsberg and Kagan ignore the Canons and rule on this matter in the face of an obvious bias demonstrated by their actions?  We can only hope that “auxiliary precautions” will prevail.

Another example is closer to home.  Without quoting chapter and verse of Alabama Ethics laws, the underlying principle mandates this simple commandment: an elected official cannot use public office for personal gain.  A dark cloud of doubt hangs over the Alabama Legislature due to the actions of Speaker Mike Hubbard.  The case has not gone to trial, but his actions have caused a prosecutor and a grand jury to establish a series of questions based on Hubbard’s actions that warrant a trial.

The allegations have taken their toll. Along with the uncertainty over the Speaker’s future come questions about any action of the legislature.  The overriding question is this: Why is Hubbard still Speaker? The dark cloud would have dissipated if the members had chosen a new leader, but they refused to bulk status quo, paving the way for a potential colossal embarrassment for the legislature, state government in general, and the Republican Party. 

Hubbard is given credit for “transforming” the legislature into a conservative, pro-business body.  This flies in the face of thousands of Republican activists who have worked for decades to make this transition possible.  The rallying cry has often been “honesty in government.  That is being put to the test with the upcoming trial.  Have Republicans rallied around a potentially corrupt leader for the sake of holding on to power?  Has the lesson of “auxiliary precautions” been lost on Alabama Republicans?

Finally, one group that needs fewer “auxiliary precautions” is public educators.  The vast majority of public teachers and administrator enter the profession because they consider it “a calling”. The pay is acceptable, but the promise of fame or fortune is not in the cards.

In spite of this, the Code of Ethics for public educators is comprehensive and duplicated at the state and local level.  Press reports of misconduct or mal practice are common, but confined to the smallest minority of teachers and administrators.  When this occurs, it usually involves criminal activity, such as an inappropriate relationship with a student. Society has a low or zero tolerance for such blatant disregard for accepted moral standards.

Alabama law generally defines morality : (School Code 1927, §354; Code 1940, T. 52, §337.) “The State Superintendent of Education shall have authority to revoke any certificate issued under the provisions of this chapter when the holder has been guilty of immoral conduct or unbecoming or indecent behavior.” Since no state employee is above the law, it is assumed that “immoral conduct or indecent behavior” applies to the State Superintendent of Education as well, and it would be the responsibility of the Governor and the State Board of Education to deal with this matter if it occurs. 

In modern, politically correct America, it is often a struggle to define right and wrong, good and evil, or “immorality.”  In his book Still the Best Hope: Why the World Needs American Values to Triumph , Dennis Prager voices frustration over what he calls moral confusion: “(I regret having to define) terms that should not need definition (good and evil), because a generation of Westerners has been taught that good and evil are totally subjective terms.” 

Why should it be necessary to define unwritten moral societal codes based on a general understanding of morality in the minds of the people? “Auxiliary precautions” are necessary, but they can never replace our understanding of Natural Law ingrained in each of us based our membership in the human race.

 

Larry Sims is a former State Legislator who teaches political science at an Alabama community college.  He is a life long Republican.

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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Elections

Alabama Supreme Court Candidate Donna Wesson Smalley talks Justice with APR

Brandon Moseley

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Thursday, the Alabama Political Reporter went to Jasper for an extended interview with Democratic candidate for Associate Justice of the Alabama Supreme Court Place 4.

Donna Wesson Smalley grew up on a cattle farm in Etowah County near Attalla. She is an attorney with four decades of experience with the law. She earned her law degree from the University of Alabama Law School. Smalley is 62 years old.

APR asked: Why are you running for Alabama Supreme Court?

“The real truth is that I feel a real calling for it,” Smalley said. “I have dedicated my whole life to the law, and this is a natural next step.”

APR asked: What are your qualifications to serve on the state Supreme Court?

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“I offer a lot with the breath of my experience. I have 40 years as a practicing attorney. I am a former adjust instructor at the University of Alabama School of Law. I am a former adjunct professor in writing in the English Department. I relocated to Walker County in 2005 after being in Tuscaloosa for 23 years. I have done a lot of different things in the practice of law, which I think is important.”

“That I am a woman brings another experience to the court and Alabama needs more women in leadership positions,” Smalley said.

APR asked if the Judicial Inquiry Commission  and the Court of the Judiciary should be tasked with disciplining judges, or should judges be treated like every other constitutional office and the legislature be the body tasked with impeaching judges (like in the federal system)?

“I think the JIC is much better equipped to handle disciplining judges with an eye of protecting the sanctity of judges and the courts than the legislators. They are not as well equipped by education and experience. There is a balance between popular opinion and a more studied reasoning. That is one of the aspects of our code that has been used as a model used around the world.”

Smalley credited Howell Heflin with modernizing that section and felt that it, “Should be kept.”

APR asked: Does the state of Alabama have an ethics problem?

“Yes, obviously we have an ethics problem when three of our top elected officials have had to be replaced,” Smalley replied. “One definition of insanity is to keep doing the same thing over and over again and expecting different results.”

“We have pretty good ethics laws, but we need better enforcement of them,” Smalley said. “For the few public officials that do break the public trust – they need to be punished.”

APR asked: The Business Council of Alabama (BCA) has been very active in endorsing and contributing towards judicial races. Is there a conflict of interest there in judicial candidates accepting contributions and donations from business interests that routinely have business before the court system?

“It is hard to avoid the appearance of impropriety when any one group contributes large amounts of money to the judges that settle disputes that often involves companies that are members of that group,” Smalley said. “This is a big problem and we need to figure out how to solve it.”

“We really need for the legislature to come up with a plan to deal with campaign finance laws in a fair and effective matter,” Smalley added.

APR asked: Should judicial races in Alabama be partisan political races?

“Not in my opinion,” Smalley said. “Politics really shouldn’t have any place in the review of elected races at all. I have practiced with judges who have been both Democrats and Republicans in different points in their careers; but they ruled the same way.”

Smalley said that running judicial races without the party affiliations would be very difficult; but there needs to be some campaign finance reform by the legislature. Our current system has no limits on dark money and allows unlimited donations from businesses and individuals. The appearance of impropriety should be avoided in judicial races.”

APR asked: There is a wide range in caseloads from circuit to circuit across the state. Should the legislature reallocate the judges from areas that have experienced population declines to areas that have experienced growth?

Smalley said no, that we should be adding judges to those areas of the state that are growing faster than other areas not taking judges away. “Getting more judges across the state would streamline how fast cases could come to trial. Justice delayed is justice denies.”

APR asked: Do the poor get treated fairly in our court system, or is there two sets of laws? One for people with money to have the best representation and another system for those who can’t afford the same defense.

“No, the poor are not treated fairly in our court system,” Smalley said. “I don’t know of anyone who can seriously argue otherwise. That is a problem we continue to struggle with, and that is not just a criminal court matter but also in the civil courts.”

APR asked: Do poor people get trapped in the court system being assigned penalties and court costs they can not afford and then additional fines and fees for not paying the previous fines?

“Absolutely, yes, people do get trapped in that system and in my opinion it is indefensible,” Smalley said. “Some agencies like the courts are not supposed to be self supporting. They are supposed to be supported by all of us so that everyone regardless of their station in life can seek justice for wrongs created by others. Justice for all is a basic tenant of our society. It is depressing how the poor are treated in our state and our country.”

APR asked: Republicans have dominated Alabama judicial races for well over a decade because there is a perception that Democrats are soft on crime. Are you strong enough to punish criminals and get justice for victims of crime?

“I don’t think that is why Republicans have dominated judicial races,” Smalley said. “That is a false premise. Republicans have dominated judicial races because they have spent more money to influence the voters. Democrats are like Republicans: they don’t want crime in their families or neighborhoods,” Smalley continued. “We need to do some of the things that we know will reduce crime. We need to be spending more money on early childhood education, job training, and mental health. They all dramatically reduce crime. That is where we need to be focusing instead of creating a cottage industry of private prisons. My hope is that everyone including Republicans will join in solving the problems. Republicans have had the House the Senate the executive branch, the courts, and their approach has not worked. People are still concerned about crime.”

APR asked: Alabama recently executed a man in his eighties. Is there something administratively the courts can do to expedite the appeals process so that death penalties can be performed in less than 20 years of sentencing?

“If there were enough judges and a better system for providing competent defense attorneys, that would streamline it some,” Smalley said. “I don’t think we should change the defendants’ protections.”

“Sometimes justice delayed is justice denied,” Smalley said. “We know it is less costly to have life without parole than the death penalty.”

APR asked: Does the state legislature need to find more funding for the Alabama Court System, particularly the circuit clerks offices?

“It is ridiculous,” Smalley said. “They lost manpower consistently. There is a third of the manpower that they had when I started practicing. ”

APR asked: There has been a popular perception, that in the past, some of the Justices on the Alabama Supreme Court have been a little lazy. If you are elected to the state’s highest court, can the public trust you to put in a full week’s work and not get behind on your work?

“Yes, and I pledge to write opinions,” Smalley said. “One of the things that I have heard across the state, particularly from lawyers, is that they don’t receive a reason written response on their filings. They deserve that much from the appellate courts.”

APR asked: There is a perception that whoever wins the GOP nomination for a statewide judicial race will win the office. Is that making it hard for you to fund raise in this race?

“I just don’t believe that paradigm is true anymore,” Smalley said. “The pendulum has begun to swing, and I don’t really need for somebody to give me hundreds of thousands of dollars to buy my vote. I intend to work my campaign at the grass roots level. That will win voters over.”

Smalley said, “I am confident that I am the most qualified candidate in this particular race. I am 62 years old, and I have been practicing law for 40 years. I have a breadth of experience that my opponent lacks. Most of his work has been with lobbying and governmental affairs. Most of my work has been with real people with real problems.”

“I don’t think either party should have every appellate judgeship, and that is what we have now.”

Donna Wesson Smalley (D) is running against James “Jay” Mitchell (R) for state Supreme Court Justice Place 4.

Jefferson County Circuit Judge Robert Vance Jr. (D) is running for Chief Justice of the Alabama Supreme Court against Associate Justice Tom Parker (R).

Smalley and Vance are the only Democrats running for any of the statewide judicial offices.

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National

Ivey applauds Supreme Court opinion allowing states, localities to collect sales taxes from online retailers

Brandon Moseley

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On Thursday, Alabama Governor Kay Ivey (R) said that the decision by the U.S. Supreme Court to help states and local governments collect sales taxes from e-commerce retailers, “Will facilitate collections in our global, technology-driven economy.”

On Thursday the Court overturned a 1992 ruling that had made it very difficult for states to require online retailers to charge their customers sales taxes. The court found in favor of the state of South Dakota in today’s ruling in the case of South Dakota v. Wayfair.

“Technology and the advent of e-commerce has drastically changed the retail landscape and the states’ ability to collect sales taxes,” Governor Ivey said. “The Supreme Court’s ruling related to online sales taxes is a common-sense approach that modernizes existing limitations on the taxation of e-commerce sales and will facilitate collections in our global, technology-driven economy. The change effected by the Court’s decision will promote parity between our state’s brick and mortar businesses and competing out-of-state sellers.”

The ruling freed states and local governments to start collecting billions of dollars in new sales taxes from online retailers, overturning a 1992 ruling that had made much of the internet a tax-free zone. Traditional retailers have said that they have been at a disadvantage because their online competitors did not have to charge sales taxes,
The sales taxes are still due and technically Alabama citizens are supposed to keep a record of their online purchases and then pay the sales tax with the rest of their taxes; but very few people know of that,

The court’s 1992 decision involving catalog sales had shielded retailers from tax-collection duties if they didn’t have a physical presence in a state.

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Justice Anthony Kennedy wrote today’s narrow 5 to 4 decision for the majority.

Kennedy wrote that the 1992 ruling, Quill versus North Dakota, was obsolete in the e-commerce era.

It is estimated that today’s ruling will allow state and local governments to collect anywhere from an additional $8 billion to as much as $23 billion a year in additional taxes.

It is not clear at this time if this might give international sites an advantage over domestically located retailers. Items such as e-books, software, movies, songs, etc. are increasingly marketed as downloads rather than an item that is shipped in the mail.

It is also not clear how this affects marketplace web sites that bring buyer and seller together, like E-bay.

“Today’s ruling is limited to large online retailers and confirms that small businesses are clearly viewed differently by the court,” EBay said in an email. “Now is the time for Congress to provide clear tax rules with a strong small business exemption.”

It is also not clear if the states can make this retroactive and sue online retailers for years of uncollected sales taxes.

The value of Wayfair stock dropped on the news.

Only five states do not impose sales taxes.

Amazon had already begun charging sales taxes; but thousands of online retailers, notably Overstock.com, do not,
Rates vary from state to state and even from town to town. Also many states do not charge sales taxes on items like foodstuffs. Alabama does charge sales tax on food; but not on certain seeds and agricultural products.

Then Alabama Governor Robert Bentley (R) had strongly lobbied Congress for legislation allowing states to tax e-commerce during his first term; but the Congress never passed that legislation.

The state of Alabama is looking forward to increased sales tax collections after Thursday’s ruling.  Alabama consumers may have to expect to pay five to ten percent more for their online purchases than they are now.

(Original reporting by Bloomberg News’s Greg Stohr contributed to this report.)

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News

Alabama will not provide funding for passenger rail service to Mobile at this time

Brandon Moseley

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Two Amtrak trains pass one another just outside Tuscaloosa Alabama on the Crescent line via Flikr.

Gov. Kay Ivey on Thursday announced Alabama will not commit funds towards extending passenger rail service to Mobile. The Southern Rail Commission released a statement after it was unable to secure state matching funds for the cost of resuming passenger rail service from the states of Alabama and Mississippi.

“The Southern Rail Commission (SRC) regrets that it was unable to apply for the Federal Railroad Administration (FRA)’s FY17 Consolidated Rail Infrastructure Safety and Improvements (CRISI) funding due to the lack of state funding commitments from Mississippi and Alabama. The CRISI program was created and funded with the support of Senator Wicker and then-Senator Cochran, and the Gulf Coast rail project was well suited to take advantage of this unique opportunity. Louisiana Governor John Bel Edwards was prepared to commit $9.5million towards the project. The SRC stands ready to apply for the FY18 round of funding should Mississippi and Alabama commit the required matching funds.”

The SRC claims that the Trent Lott National Center at the University of Southern Mississippi estimates that restoring passenger rail along the Gulf will deliver an annual return on investment of between $64 million and $525 for Mississippi, between $19 million and $229 million for Alabama, and between $86M and $378M for Louisiana, depending on the increase in tourism.

The combined local match between Mississippi and Alabama would be approximately $20 million.

The SRC claims that that would be more than offset by the economic growth produced from additional gulf coast tourism. It is currently impossible to travel by passenger rail from Birmingham to Mobile, even though there is passenger rail service from Birmingham to New Orleans.

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“I know I speak for my fellow Commissioners when I say I’m very disappointed to not take advantage of this funding for which Gulf Coast Passenger Rail is so perfectly suited,” said SRC Chairman John Spain. We’ll turn our sights to the 2018 fiscal year, and I’m hopeful we will have full support to apply for CRISI funds at that time.”

The Mobile City Council passed a resolution asking Alabama Governor Kay Ivey (R) for the money; but on Thursday Ivey declined to commit the funds.

“I currently do not plan to provide limited state resources to passenger rail service.” Gov. Ivey said.

Amtrak’s Crescent Line currently runs through Birmingham and runs from New Orleans to New York City. The proposed Gulf Coast line would have connected New Orleans to Biloxi and Mobile. Passenger rail service on the Gulf Coast ended with Hurricane Katrina.

Ivey’s Democratic opponent, Walter “Walt” Maddox, strongly disagreed with the decision not to fund the rail expansion.

Maddox said in a statement, “After exhaustive research and study, Governor Ivey’s own appointees to the Southern Rail Commission recommended an investment that would vastly enhance Alabama’s tourism industry for decades to come by creating new jobs and revenue for a 21st Century economy. This is not about passenger rail versus freight – this is about the past versus the future. This decision continues Governor Ivey’s pattern of outdated governing that keeps Alabama at or near the bottom in everything that matters. In missing this opportunity to position Alabama at the epicenter of passenger rail travel on the gulf coast, Governor Ivey proves that Alabama is not ‘on the right track.’”
Maddox and Ivey will be in the general election on November 6.

Rail advocates had hoped to connect Birmingham to Montgomery and to Huntsville as well in the future.  That seems unlikely now.

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Code of Honor: What Does it Mean?

by Bill Britt Read Time: 5 min
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