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Bill Britt

OPINION | “Criminal” Court of Appeals does the Devil’s bidding

Bill Britt

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Astonishingly, the Court of Criminal Appeals was able to uphold 11 counts of former Speaker Mike Hubbard’s 12 count conviction while opening a door for the state’s ethics act to be gutted by the Legislature to make sure Hubbard is the last public official held criminally liable under existing laws.

That is the hard truth of what is found in the opinion handed down by the Court of Criminal Appeals nearly two years after Hubbard’s conviction and four years after his indictment.

Justice Samuel Welch wrote the opinion and confirmed by Judges J. Elizabeth Kellum, Liles C. Burke and J. Michael Joiner is a politically-motivated legal slight-of-hand that at once upholds 11 counts of Hubbard’s conviction while creating doubt on who is a principal, what constitutes a conflict of interest while making it legal for a lawmaker to vote on legislation while getting paid to do so by an outside interest.

Now it is clear why it took Welch, Kellum, Burke and Joiner nearly two years to render a verdict in Hubbard’s appeal; they needed time to get past the primary election season to make sure there would be no political blow-back on Republican elites and officeholders.

Welch, Kellum, Burke and Joiner show just how far they were willing to go to do the Devil’s bidding in their torturous augment to reverse count 5.

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In count 5, the Lee County Jury found that Hubbard voted for legislation with a conflict of interest because it benefited his paying client, American Pharmacy Cooperative Inc.

IN-DEPTH | Court of Appeals affirms all but one of Hubbard’s convictions

During the 2013 legislative session, Hubbard had language inserted in the Medicaid portion of the General Fund Budget that would have effectively given APCI a monopoly over the State’s Medicaid prescription contracts. APCI paid Hubbard $5,000.00 a month for “consulting,” while serving as Speaker of the House.

Hubbard voted for the General Fund Budget that contained the monopoly for APCI with full knowledge he was doing something wrong.

In their reversal, Welch, Kellum, Burke and Joiner mysteriously found that the ethics statute failed to define an employee clearly.

The judges found that since Hubbard derived less than 50 percent of his income from APCI, he must not be an employee.

Of course, Welch, Kellum, Burke and Joiner also failed to realize most of Hubbard’s income was from contracting work the jury found illegal.

The Lee County jurors understood the law, so did trial Judge Jacob Walker III when he instructed the jury before deliberations, and the Judge and jury understood the law after they found Hubbard guilty on count 5. That is why he was sentenced to 10 years – for violating that portion of the ethics code.

Hubbard’s cronies understand he was breaking the law just minutes before he cast the vote in 2013, and warned him not to do it.

Hubbard’s chief of staff, Josh Blades, lobbyists John Ross and Dax Swatek all testified they cautioned Hubbard not to vote for the bill. Blades swore under oath that Hubbard was aware at the time of the problems he faced but voted on the bill anyway, later saying he never thought it would pass.

As a result of the Court of Criminal Appeals’ actions, a lawmaker may now be paid by an outside interest to vote on legislation that benefits that group and not be in violation of the ethics act.

Welch, Kellum, Burke and Joiner should be ashamed.

Burke is in line for a federal judgeship. Hopefully, Alabama’s senior Senator Richard Shelby will show his good character by having Burke withdraw his name from nomination. The Trump Administration is reshaping the federal courts by placing conservatives at every level of the federal judiciary. There is no place on a conservative court for a man who would sign on to the opinion issued on Monday.

Another thing these jurists did was give the legislature cover to do away with existing ethics laws and replace it with the kind of weak statues being prepared by the Alabama Code of Ethics Clarification and Reform Commission.

Welch, Kellum, Burke and Joiner joined forces with other elites to abolish the state’s ethics laws and replace it with one that allows for lobbyists and gain-seekers to shower food, drinks and other perks on public officials without fear of consequence.

Since Hubbard’s indictment, lawyers have been busy trying to redefine who is a principal because some of the state’s most prominent executives were caught giving Hubbard things of value, which is not permitted under current law.

Here again, Welch, Kellum, Burke and Joiner come to the rescue. According to court’s opinion, “It could present a serious constitutional issue should a situation arise in which a public official is convicted for soliciting or receiving a thing of value from a person within an organization but outside its immediate leadership hierarchy, where it is not so clear that that individual is a principal.”

The jury in Lee County didn’t have a problem identifying a principal. Neither did Judge Walker. But Welch, Kellum, Burke and Joiner – they see a serious constitutional issue.

All this means is that no big-shot businessperson will ever appear in another courtroom because he bribed a public official.

But in reality, the entire purpose of the Court of Criminal Appeals’ ruling was to ensure that no powerful elected official or business mogul would ever be charged under the ethics act.

Even at their loftiest moments, Welch, Kellum, Burke and Joiner make clear that they are on board with doing away with the current ethics statues.

“[T]he Government violates [due process] by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement,” they wrote. “For these reasons, we strongly encourage the legislature to consider amending the law to better circumscribe the class of persons defined as principals and to more clearly explain several of the other definitions embodied in § 36-25-1, Ala. Code 1975 that could present similar constitutional issues. The language of Alabama’s ethics law should be clear as to which persons, businesses, and acts fall within its reach.”

To simply restate their intention, “We had to find Hubbard guilty. We didn’t want to because he’s an elite like us. But we had no choice. But hey, you now have a green-light to gut these stupid ethics laws (Thank God). I mean, really, what were we thinking? Oh, and you guys that were about to be indicted for getting paid to pass legislation, you’re welcome.”

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Bill Britt

Opinion | In God we trust; all others will be scrutinized

Bill Britt

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After being elected Speaker of the Alabama House of Representatives for his first full quadrennium, Mac McCutcheon addressed the body to offer his vision for the next four years.

“I want this quadrennium to be defined by four simple words — building a better Alabama,” McCutcheon said.

Building a better Alabama is a goal most can agree upon but what constitutes a better Alabama means different things to different people even within the lower chamber.

The speaker offered concrete examples of what he sees as the building blocks for a better state which comprise his agenda for the upcoming legislative session.

Better roads and bridges, an even better economy, a better education system and a better standard of ethics are all part of McCutcheon’s plan.

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No one can legitimately argue that improved infrastructure, a robust economy, higher education standards and strict ethics laws are not foundational to a healthy and prosperous state. But it is also wise to acknowledge that policy must be judged on results and not merely on intentions.

There is little doubt that McCutcheon is an honest man with a sincere desire to make Alabama even better. As he said in his remarks to the House, “We are here to govern with honor, and we are here to follow the rule of law.” But McCutcheon knows as does anyone who understands the nature of politics that honor is its own reward but also a virtue that is not always rewarded by those who seek power.

This he addressed in his speech by saying, “As a legislator, you have two choices before you. You can choose to be guided primarily by your own ambitions, desires, and personal interests, or you can choose to be led by a desire to make Alabama a better place for the constituents you represent.”

As McCutcheon is given broad powers constitutionally to set the state’s agenda, the ambitions, desires and personal interests of hundreds of special interests will bear down on him as well as other members of the House.

McCutcheon and other lawmakers should recognize that to stand on principle often means you stand alone.

Most legislators do come to Montgomery with a desire to make Alabama a better place for the constituents, but the capital city has a way of blurring that desire. It is the sad state of human nature to believe what is best for oneself is good for everyone else. In Montgomery, there are a hundred of individuals roaming the State House that will convince the gullible of that mistaken notion.

And so the die is cast, McCutcheon has laid down his markers. He deserves a fresh start and strong support, but as with an immense responsibility comes an even greater burden.

The speaker closed his statements to the House by saying, “We are here to serve the people of Alabama to the very best of our abilities…so help us, God.”

In God we trust; all others will be scrutinized.

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Bill Britt

Opinion | Poarch Creek leadership keeps taking from state while giving nothing in return

Bill Britt

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According to the U.S. Department of the Interior Indian Affairs, federally recognized tribes like the Poarch Band of Creek Indians are protected against encroachment by other sovereigns, such as the states.

So, why does the Alabama State Legislature show submissiveness to the Poarch Band of Creek Indians?

For at least ten years, PCI has slowly impressed its will on state government in Alabama to bend it to the tribe’s wishes without offering any concessions to the state.

PCI pays no state taxes, gets special consideration on its use of state roads and is operating a gaming monopoly that falls outside of the legal bounds of the Indian Gaming Regulation Act (IGRA). According to IRGA, a tribe is not permitted to operate any games that are illegal in a state.

Three years ago, U.S. Attorney for the middle district, George Beck, sent a letter to then-Gov. Robert Bentley and Attorney General Luther Strange to raise serious questions about the state’s inconsistency on the legality of bingo machines.

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While the letter seeks clarification on what might appear to be a complex issue, it can be distilled down to a question: How can the machines played at VictoryLand be slot machines and the ones played at facilities owned by PCI not be slots? Or even more simply put, how can one be illegal and the other not?

US Attorney Asks Bingo or Slots?

Beck’s question has never been answered, and PCI continues to operate its billion-dollar gaming operations.

Federal courts have held the state has no power over PCI because of its sovereignty.

The Bureau of Indian Affairs says that “federally recognized tribes possess both the right and the authority to regulate activities on their lands independently from state government control.”

States are considered sovereign entities and can engage in a government-to-government relationship with other sovereigns states, but this is not mandatory.

The State of Alabama has no government-to-government relationship with PCI; yet each year, PCI marshals its lobbyists in Montgomery, under the direction of Tribal Vice President Robbie McGee, to persuade state lawmakers to protect its gaming operation by denying the state’s citizens an opportunity to vote on a lottery, or gaming in general.

PCI rigorously pushes the State Legislature to do its bidding but would never let lawmakers come and lobby its tribal council for privileges that would benefit the state of Alabama.

Why should state lawmakers continue to protect any business that refuses to play fair?

One could even question how a sovereign nation is allowed to elect a representative to the Alabama Legislature, but they do.

The bigger question is why does the Legislature continue to bow to the Indians’ wants and needs while the tribe gives nothing in return?

Why should McGee be allowed to stand in a committee meeting at the Alabama State House and arrogantly tell state lawmakers what they should and should not do? Would lawmakers show such deference to an ambassador from Latvia, El Salvador or Mexico?

PCI has a unique dual status within the state, but they demand this special relationship while siphoning off hundreds of millions of dollars from the state without paying a dime in taxes. PCI is currently investing money earned in Alabama to support its operations in Nevada, Pennsylvania and the Caribbean.

Whenever anyone says, the tribe is a good neighbor because they give back to communities, they are simply buying into PCI’s propaganda. PCI gives trinkets to pacify cities and counties so the tribe can reap millions for themselves.

The U.S. Supreme Court in its 2009, ruling in Carcieri v. Salazar, held that the term “now under Federal jurisdiction” referred only to tribes that were federally recognized in 1934, when the Indian Recognition Act became law. The court ruled that the federal government could not take land into trust from tribes that were recognized after that time. PCI was not federally recognized until Nov. 21, 1984, some 50 years after the cutoff date.

Several bills have been introduced in Congress to offer PCI a Carcieri “Fix,” but the latest bill was rejected by Alabama’s senior U.S. Senator Richard Shelby.

This last election cycle, PCI, unlike in the past, didn’t heavily invest in political campaign. The reason the tribe is laying low is partly out of fear that President Donald J. Trump’s administration might decide to challenge PCI’s status as a federally recognized tribe. The other reason is that the tribe, under direction from McGee, has made common cause with former Gov. Bob Riley and former BCA head Billy Canary to run a candidate against Senator Shelby, should he seek re-election in 2022.

PCI is targeting the U.S. Senate in hopes of finally obtaining a Carcieri “Fix” guaranteeing its continuing status as a sovereign entity within Alabama’s borders, not bound by state law.

There is little doubt that, historically, members of the Poarch Band of Creek Indians were rudely treated, but this is an ancient grievance that PCI’s gaming profits will not satisfy.

State lawmakers must decide to do what’s right for the state and not a sovereign entity that only takes.

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Bill Britt

Opinion | 2019: Great things or one damn thing after another?

Bill Britt

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As we look forward to the new year, on the one hand, there is no compelling reason for exuberant optimism, but on the other, there is no cause for debilitating pessimism as 2019, like other years, will offer opportunities where the state can grow and prosper and still experience yet unimagined problems and scandal.

Politics, like life, can sometimes be just one damn thing after another.

Crucial to any success in government, business or most human endeavor is leadership. In this sense, Gov. Kay Ivey, Speaker of the House Mac McCutcheon, Senate President Pro Tem Del Marsh and Chief Justice Tom Parker will hopefully commit to moving the state forward with clarity and purpose.

Parker may prove to be the singular individual who can save the state’s tittering ethics laws. But more on that in a minute.

Republicans securely command every branch of state government, which also places an ideological burden not just on those elected officials but also on the state party.

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ALGOP Chair Terry Lathan must guide the party to support policies that are best for Alabama even if they do not fit neatly into a national narrative.

There is also reason to believe an opportunity for Democrat House Minority Leader Anthony Daniels and Senate Democrat Leader Bobby Singleton to challenge the Republican status quo in a rational discussion of ideas.

Singleton’s relationship with Marsh and Daniels’ closeness to McCutcheon bodes well for some bipartisan dealmaking. But Daniels and Singleton must be willing to stand in front of the media and offer alternatives and criticism every time Republicans push cockamamy ideas or try to run them over for purely partisan gains.

As a minority party, the press is the Democrats best weapon and should be used to paint a big picture of where they stand and how they are different from Republicans

Republicans have been successful at winning elections, but their record of governing for all the people is no more stellar than the Democrats they replaced in 2010.

Any thinking individual knows there is more to governing than winning an election. Governing means enacting sound policy that produces meaningful results. Sloganeering, PR stunts and homespun bromides might equal electoral victory but only workable, principled actions result in legislative success.

The best leaders are those who upon election act as if the last election was their last campaign so they can serve the interests of their constituents and not the next election.

Gov. Ivey has signaled that she is going to do the difficult things that her predecessors refused to do. Now we must hope the Legislature will follow suit and not merely nibble around the edges of the state’s most pressing needs.

There is inherent in each new year the promise of a fresh start, a do-over if you will, where we can wipe the slate clean and began anew.

But dark omens are already evident and will come into sharp focus as the year unfolds.

Most apparent is the cloud hanging over the head of Attorney General Steve Marshall, who came to power after making a devil’s pact with then-Gov. Robert Bentley and his muse, Rebekah Caldwell Mason, to keep them safe from Special Prosecution Divison Chief Matt Hart. Marshall reneged on his agreement with Bentley but kept his promise to big donors to remove Hart once he won his election. Not only did Marshall sellout Hart to win an election, he also took nearly a million dollars in illegal campaign contributions.

Marshall should be under indictment for illegally accepting $735,000 in dirty money from the Republican Attorneys Generals Association. Instead, he and his sidekick, Katherine Green Robertson, are pushing a watered down version of the State’s Ethics Act to curry favor with the state’s elites.

Commissioners Jerry L. Fielding, Frank C. “Butch” Ellis, Jr., and John Plunk gave Marshall his get out of jail free card, proving they are as corrupt as Marshall.

The Ethics Commission and lawmakers were warned about offering Marshall cover for willingly and knowingly accepted illegal campaign contributions to win his election, but those warnings were ignored for political considerations.

Once Marshall’s moral failings and false image is exposed to lawmakers, and those who helped him win the election will be as shocked and humiliated as those who backed one of North Carolina’s most notorious politicos, John Edwards.

Perhaps the most dire and dangerous problem facing the state is the lawless Ethics Commission, which under the leadership of Judge Fielding has used extraordinary means to subvert the rule of law by becoming a law unto themselves. Chief Justice Tom Parker is most capable of using his bully pulpit to champion an ethics commission and ethics laws that don’t reward elite-lawbreakers but holds them accountable like everyone else.

Ancient thinkers understood that character is destiny so it is that if those of good character lead with clearness of purpose and honesty of thought, then 2019 will be better than the year that will soon pass into memory.

Alabama’s state leaders both in government and the private sector can do great things, but the question is, will they?

 

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Bill Britt

Opinion | Ivey righted the ship of state; now it is time to steer it audaciously

Bill Britt

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When Gov. Kay Ivey took the helm as Alabama’s 54th Governor, she promised to steady the ship of state. Over the last 622 days, she kept that promise.

Gov. Ivey is signaling that she wants to tackle systemic problems that have been bandaged or ignored by her predecessors.

Aided by a competent staff, Ivey’s administration is disciplined, conservative and drama free.

One need not be a fan of her every decision to admit that Ivey is an effective governor who is governing for the right reasons.

After being sworn in on April 10, 2017, to replace disgraced Gov. Robert Bentley, whose chaotic and self-serving tenure came to an abrupt end with resignation, Ivey began her administration by saying, “Today is both a dark day for Alabama, yet also one of opportunity. I ask for your help and patience as we, together, steady the Ship of State and improve Alabama’s image.”

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At the heart of Ivey’s success is her choice of Steve Pelham as chief of staff who has guided her administration with an efficiency rarely seen in state government.

When Pelham became chief of staff to then-Lt, Gov. Ivey in January 2011, he described the administration’s principal aim as, “Our immediate goal is to carry out her pledge to organize a cost-effective and efficient office responsive to the people.” Pelham carried that same mission and business-like orderliness into the governor’s office.

It is rumored that Pelham may leave Ivey’s office to take a position at Auburn University in the new year. If so, the Governor’s loss will be Auburn’s gain.

While Pelham has shown tremendous leadership that seems indispensable, he, like any seasoned political veteran, knows there is a time to stay and a time to go. Being an effective chief of staff is perhaps one of the hardest and most thankless jobs in politics.

If he does decide to take a position at Auburn, his rumored replacement seems well suited to carry on the mission Ivey has established.

Ivey appears to have two major priorities for the coming year: one is successfully passing a fuel tax to shore up the state’s crumbling infrastructure; the other is to fix the state’s dangerous and antiquated prison system. These are both tall orders but can be accomplished given her popularity and backing she has among her allies in the House, Senate and the private sector.

As for building out 21st-century infrastructure, studies show that a fuel tax alone cannot generate enough revenue to fund the state’s needs adequately, so Gov. Ivey, like the Legislature, is going to have to expand their thinking beyond a singular option.

Prisons, while a thorny issue, may not be as difficult to address as previously imagined.

Having toured some of the state’s most wretched facilities, I can attest to the inhumane conditions under which men and women live in our state pineal institutions.

Any lawmaker who has visited these prison facilities would surely agree that they are unfit for human habitation. Yes, those individuals who are incarcerated are criminals, but when a person is imprisoned, they lose their freedom, not their humanity. According to our Nation’s Constitution, cruel and unusual punishment is forbidden. No Alabama prisoner is living a life of luxury, and anyone who thinks so has never set foot in a state prison.

The state doesn’t need to be soft on crime; it must remain intolerant of criminal behavior, but it is also necessary to recognize that being smart on crime produces better results for some inmates and the public at large.

The Ivey administration can fight a losing battle to pass legislation to acquire funding for new prisons or enter a lease-purchase agreement to have the needed facilities constructed and rent them from the builders. Gov. Ivey, while taking some political heat, should pursue the lease-purchase option and succeed where those before her have failed.

Not mentioned in Gov. Ivey’s agenda is the need to overhaul the State Ethics Commission. The Commission is proving to be a lawless institution rather than a body whose primary function is to uphold and enforce the state’s ethics statutes.

Pelham is not a fan of the way the Ethics Commission is handling its job and neither is the governor. It is time to act to restore the commission to its original purpose.

In an interview with APR in April of this year, Ivey said she had been thinking about how ethics commissioners are appointed and find that there is potential for a conflicting interest since commissioners are chosen by the speaker of the house, lieutenant governor and governor.

In interview Gov. Ivey says, “I’m wonderfully well”

“I find it sort of curious and troubling a little bit that the governor, lieutenant governor, and the speaker of the house are the three people that currently make appointments to the commission,” Ivey said. “We three serve under the provisions the commission is charged with enforcing, so it seems troubling to me that – I’m going to appoint you to the Ethics Commission, and then somebody brings charges on me and you’re going to sit in judgment of me.”

She says it makes more sense to change the appointment process, so the commission appointments are made by the chief justice of the Supreme Court, presiding judge of the Court of Criminal Appeals and presiding judge of the Court of Civil Appeals. “They answer to the Court of Judicial Inquiry under Alabama state law. And they’d be independent,” she said.

Gov. Ivey would be wise to push the Legislature to make such commonsense changes during the 2019 legislative session.

It is uncertain if Gov. Ivey will run for a second term in 2022, but given her bold agenda, it looks like she is going to govern as if this is her only term in office.

Ivey righted the ship of state; now it is time to steer it audaciously into a better tomorrow by confronting the difficult issues that have plagued the state for a generation.

With a capable staff and without fear of the next election, Gov. Ivey can do what others have not been willing to do. Lead.

 

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OPINION | “Criminal” Court of Appeals does the Devil’s bidding

by Bill Britt Read Time: 5 min
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