Alabama’s ethics laws are under attack on two fronts.
A bill moving through the Legislature would significantly loosen the state’s “toughest-in-the-nation” ethics rules, which govern the behavior of state officials, lawmakers, lobbyists and those who hire them. In the courts, though, another challenge is brewing.
Former Republican House Speaker Mike Hubbard — convicted on 12 felony ethics charges in 2016 for conflicts of interest and using his public office for private gain — is appealing his conviction up to the Alabama Supreme Court, where he and his attorneys are arguing that the laws were too strictly interpreted by lower courts.
The Alabama Court of Criminal Appeals upheld 11 of those charges in a ruling last year, but the Supreme Court has agreed to review his case, meaning a final decision on Hubbard’s conviction under the laws he once championed may not come any time soon.
In an opening brief filed Monday, prosecutors in the Attorney General’s Special Prosecution Divison argue that Hubbard repeatedly violated the law and that his convictions should be affirmed by the Supreme Court.
The attorney general’s prosecutors have asked for oral arguments before the court to, they said, “get the record straight.”
Among other charges, a Lee County jury found Hubbard guilty of soliciting and receiving $150,000 in investments into a failing printing business from four principals, soliciting and receiving valuable financial and business advice from a principal and receiving more than $300,000 in “consulting fees” from two companies who had business before the Alabama Legislature.
Prosecutors said both companies “hired Hubbard to capitalize on his position as speaker.”
“Alabama’s Ethics Law helps prohibit conflicts of interest and promote Alabamians’ confidence in the integrity of their government,” said Attorney General Steve Marshall. “As we explained in our brief, Mike Hubbard repeatedly violated those laws, and his convictions should be affirmed.”
Hubbard remains free on appeal bond — nearly three years after his conviction.
Paying full value for a thing of value
On counts 16–19, the jury found Hubbard guilty of illegally soliciting four $150,000 investments into Craftmasters from several prominent Alabama businessmen including Great Southern Wood CEO Jimmy Rane, the state’s richest man.
Hubbard has argued, however, that the investments his printing business — Craftmasters — received weren’t, in fact, a thing of value because he paid “full value” for those investments.
In other words, Hubbard and the investors paid and received no more and no less than what the investment was worth, which is legal under the ethics laws, his attorneys argue.
The “paying full value” provision of the law ensures that lawmakers and officials can’t be prosecuted for buying things. Prosecutors said the investments were gifts and favors provided to divert Hubbard’s path away from “personal and political ruin.”
Craftmasters was on the track to insolvency.
“Hubbard received these $150,000 checks precisely for reasons related to his public service as a public official,” prosecutors argued in Monday’s brief. “Hubbard reminded business leaders … of all the good he had done building and sustaining ‘a 44 pro-business legislature,’ and he threatened to step down if they didn’t step up.”
Between investments Hubbard was accused of illegally soliciting for his Auburn-based printing company Craftmasters, consulting contracts he funneled through Auburn Network Inc. and clients he solicited using his public offices, prosecutors said Hubbard illegally made more than $2 million using his offices as speaker, representative and ALGOP chair.
“The Craftmaster transactions were not arm’s length, and no one was beating down Hubbard’s door to invest in his failing business,” prosecutors said, arguing the investments were not fair transactions, but instead provided because of Hubbard’s political office.
Principals or not?
Hubbard’s attorneys have argued the investors — big business executives — were not principals under the Ethics Law.
The argument is similar to their previous arguments that the investors were “friends” and thus covered under a friendship exemption present in the ethics laws, but it’s different because this reading of the law could have wide-ranging effects for the ethics laws as they are currently interpreted.
Hubbard and his attorneys argue that executives in companies and organizations shouldn’t be considered principals — even if their organizations retain armies of lobbyists. The companies themselves are the principals, not the individual, Hubbard argued, but that reading strays significantly from the wording of the law.
The Ethics Law defines “principal” as “[a] person or business which employs, hires or otherwise retains a lobbyist,” according to Ala. Code §36-25-1(24), and “person” can include a “group of persons.”
The business leaders Hubbard solicited and received contracts, payments and investments from — including Rane and Will Brooke, a BCA executive — did, in fact, hire lobbyists.
But Hubbard is arguing that a person isn’t a principal unless they have an individual contractual relationship with the lobbyist.
“At bottom, Hubbard is asking this Court to graft an exception into the statute that he and his former colleagues declined to enact in 2010,” prosecutors wrote, pointing out that other states have similar exceptions, but lawmakers chose not to include one in Alabama’s law.
“And this ‘Court must apply statutory law as the Legislature wrote it,’ not as Hubbard now wishes he had,” the brief reads, quoting from Hubbard himself.
Another thing-of-value exception
Another exception exists in the law that allows lawmakers and officials to receive money for business relationships are made under “circumstances that make it clear the thing is provided for reasons unrelated to the recipient’s public service as a public official.”
Hubbard is attempting to use that exception to call on the court to overturn two charges that he violated the law by receiving hundreds of thousands of dollars from APCI — a pharmaceutical cooperative — and Edgenuity.
Hubbard was being paid $5,000 a month by APCI for consulting. The money was being sent through his Auburn Network Inc. Hubbard received $210,000 from Edgenuity between April 2012 and July 2014.
While the former speaker is arguing the contracts fall under this exemption, the prosecutors said they are “flagrant violations” of the ethics law.
APCI’s president and CEO testified that Hubbard was hired because he was speaker, which gave him the ability to interact with legislators in other states.
Edgenuity’s president likewise testified that he hired Hubbard because he was speaker, and Hubbard lobbied legislators from other states on Edgenuity’s behalf.
“An ordinary person exercising ordinary common sense could conclude that when companies paid Hubbard huge salaries for little work because he was Speaker, those deals were not ‘in the ordinary course of employment’ and were not clearly ‘unrelated to [his] public service’ as Speaker,” the state’s attorney wrote in their brief.
The state prosecutors summed it up:
$10,000 a month to sell sippy cups
Hubbard was also found guilty of entering into a contract for $10,000 a month “ostensibly” to help a company sell sippy cups for Robert Abrams, the then-owner of CV Holdings and subsidiaries Capitol Cups and Si02.
He was found guilty of using his position, a state computer, state email account and his state staff to help Abrams sell his products and promote his business. He event got Abrams before Gov. Robert Bentley and the secretary of commerce.
Overall, he received at least $220,000 from Abrams between 2012 and 2014 for “minimal work” or “no discernible work” at all after a certain point.
Hubbard’s argument is that there was not enough evidence that, when he used his office to benefit Abrams, he did so because of the $10,000 monthly checks. The former speaker said the jury got it wrong — that those actions for Abrams had nothing to do with the money.
But the state argues that it presented “direct evidence” that Hubbard used his office and time for private gain in the form of those checks.
Hubbard’s former chief of staff, Josh Blades, testified in blistering testimony at trial that Hubbard said “he had 100,000 reasons” to use the office to “get this done” for Abrams.
“Other than a confession on the stand from Hubbard himself, there could hardly be clearer evidence that he used his chief of staff’s time for his own private benefit, which would materially affect his financial interest,” the state’s attorneys wrote.
On two fronts
If the Supreme Court agrees with any of Hubbard’s legal arguments in this case, barring some narrow ruling on a small inconsistency or problem in the case, such a ruling could have a weakening effect on the state’s ethics laws.
A good ruling for Hubbard could set future precedent for cases prosecuted under Alabama’s ethics laws.
Should the court agree that business executives aren’t principals, it could mean that lawmakers or their businesses could receive hefty cash injections simply because the executives writing the checks don’t have individualized contracts with lobbyists.
Should the court agree that the investments into Hubbard’s printing business were “paid for at full value” despite Hubbard not paying for the loans with money, that would open the door for any business leader to prop up a lawmakers’ failing business for political purposes through loans simply based on the idea that a loan provides a return on investment.
Should the court agree that Hubbard’s $10,000-a-month work selling sippy cups was separate and unrelated from his work for the same company using his state office, that would open the door to a wealth of similar arguments from lawmakers claiming to do a business a good as their elected representative while receiving side cash for a narrowly tailored consulting contract.
“In Hubbard’s view, a principal can put any or all legislators on its payroll precisely because they are legislators and those arrangements would not be ‘related to public service’ unless the contract is for ‘a quid pro quo,'” the state wrote.
At the same time Hubbard and the state are arguing their cases to the Supreme Court, lawmakers are considering an ethics bill that would drastically rein in Alabama’s existing ethics laws in similar ways.
The proposed bill removes the section of code that governs using a public office for personal gain.
It also allows for unlimited gifts from lobbyists or principals to public officials, changes the rules governing lobbyists and principals and more, as APR reported Monday.
The new ethics law would allow a company to designate any member of the organization as the principal. Even if the principal, in this case, say a secretary, was found guilty of committing a crime. The individual cannot be held criminally liable.
The burden of the offense is placed on the corporation, just as Hubbard and his attorneys argued it should be in their court filings.
Current law bans any gifts from lobbyists and principals to public officials over $25. Under SB230, that ban is lifted, allowing a lobbyist or a principal to give unlimited gifts, loans or other things of value to a public official or their family.
Attorney General Steve Marshall is opposing the bill.
Hubbard will now be given 14 days to file a reply brief, and the Alabama Supreme Court will determine whether to schedule oral argument or decide the case based solely on the briefs.
New marshal installed at Alabama Supreme Court
In a packed Courtroom at the Supreme Court of Alabama on Wednesday, February 12, 2020, a historic “passing of the torch” ceremony was held to swear-in the Thirteenth Marshal of the Appellate Courts of Alabama, Earl Marsh, Jr., and to honor his beloved predecessor, Willie L. James, who retired January 1, 2020. James was appointed in 2001 as the first African-American Marshall of the appellate courts, and Marsh served as Chief Deputy Marshal since 2017.
Chief Justice Tom Parker welcomed Marsh’s recent promotion to Marshal: “Marshal Marsh has been a blessing to our whole building from when he first joined our Marshal’s Office in 2017. When our beloved Marshal Willie James retired at the first of this year, we turned to Marsh as the natural successor. Marsh brings the professionalism and dedication that we need for the essential duties of keeping the Heflin-Torbert Judicial Building safe and secure for our Courts, employees, and the public.”
Marshal Marsh was sworn in by Chief Justice Parker on January 27, but the Supreme Court of Alabama, members of the Court of Criminal Appeals and the Court of Civil Appeals, along with many friends and family of Marshal Marsh, and employees from throughout the Heflin-Torbert Judicial Building, gathered to witness the February 12 ceremony honoring both the new Marshal, Marsh, and the retired Marshal, James.
First, retired Marshal James was recognized by Senior Associate Justice Mike Bolin for his years of faithful and loyal service to the Courts and members of the judicial building, and for being “one of the best men I’ve ever known.” Marshal James, with many of his family members in attendance, was presented with two framed commendations — one from the Supreme Court Justices and one from Governor Kay Ivey — for his years of service in law enforcement, including his days with the Montgomery Police Department and his decades of service in the Marshal’s office.
Next, Marshal Marsh was sworn in with his wife Jennifer holding a Bible by his side. In brief remarks, Marsh thanked God, his family, and those in attendance for their support and for entrusting him to provide a “blanket of protection” around the Courts and personnel under his care.
Marshal Marsh, a native of Greenville, Alabama, served his country twice in the United States Army, and has served his state in various law enforcement roles. Marsh served in the Department of Corrections at Holman Prison, graduated from the Montgomery Police Academy, and served as a deputy in the Lowndes County Sheriff’s department.
Marshal Marsh and his wife, Jennifer, reside in Deatsville, Alabama. They are active members of their church, Big Union Christian Church in Lowndes County.
For more information about Marshal Marsh, see his bio on the Supreme Court’s website here.
Bills could improve access to diversion programs, report notes high fees and roadblocks
Bills recently introduced in the Alabama House and Senate aim to improve access to specialized courts and diversion programs, meant to get people the help they need and keep them from behind bars.
Even with more access to those programs and courts, however, many can’t afford the exorbitant fees to remain free, according to a report released this week by an Alabama nonprofit criminal justice reform advocacy group, which also found racial disparities and a lack of critical information on outcomes.
Sen Cam Ward, R-Alabaster, told APR on Wednesday that his bill would help provide access to those programs to people who live in smaller communities, which don’t have the money to afford them, by allowing judges to transfer municipal cases to circuit and district courts that do.
Each participant – the defendant, the municipal court and the county court – would have to agree to transfer a case, according to the legislation.
“You increase the opportunities for diversion, and smaller towns don’t have it,” Ward said. “It gives them a chance to avoid going to prison or going to jail.”
In order for a presiding circuit judge to transfer a case, all parties would have to agree to do so, and the defendant would have to qualify for the drug court, mental health court, veteran’s court or diversion program, according to the bills.
Rep. Jim Hill, R-Moody, introduced the House’s version of the bill. Attempts to reach Hill on Wednesday were unsuccessful.
The legislation promises a way out of serving time in county jails and prisons for low-level crimes, but even with more access, many of those programs are too costly for participants to afford, according to a report released Monday by Alabama Appleseed, which in 2018 and 2019 surveyed 1,011 people who had participated in those specialized courts and diversion programs.
What researchers at Alabama Appleseed found was that most people in those programs are poor, making less than $14,999 a year, and paid a median of $1,600 for those diversion programs, or more than 10 percent of their income.
“Close to half used high-cost payday or title loan,” according to the report. “More than eight in ten gave up a necessity like food, rent, or prescription medication.”
Carla Crowder, executive director of Alabama Appleseed, in a message to APR on Wednesday said that to the extent that the legislation expands access to diversion, it looks like a step in the right direction.
“But so much more is needed. Real reform of Alabama’s inconsistent patchwork of diversion programs means no one is excluded because they’re too poor to pay all the fees, or cannot take off work, or have small children to care for. And our research found all of these scenarios are far too common
Crowder said that there’s also concern that the change could create new revenue streams for the various entities involved, which could result in more hardships for vulnerable low-income people charged with crimes.
“Oftentimes new diversion programs spring up as a way to collect money from vulnerable people desperate to stay out of jail or prison. The last thing we need is more of that,” Crowder said.
Ward told APR that there are good points raised in the Appleseed report, and while he doesn’t agree with all of the report’s suggestions for fixes, he does believe there’s room for improvement.
Among the report’s recommendations for legislators is to “Establish and enforce uniform statewide standards for all diversion programs and alternatives to incarceration.”
Ward agrees, and said the state has “a sporadic nature of diversion programs. Some counties that work great, some not so much. Some, it’s a pay-to-play system.”
“I do think some of these are absorbing, so I think Appleseed was correct on that,” Ward said.
Ward also said there needs to be more uniformity among the many different specialized courts and referral programs, and he agrees with the report’s finding that there needs to be more transparency on the outcomes of such programs.
Read the full report here.
Among the the reports findings are:
Disturbing Racial Disparities
In 2018, the Alabama Department of Corrections had 20,585 inmates in its custody population. Of those, 43 percent were white, while 56 percent were black.
The same year the population of Community Corrections programs was nearly 60 percent white and 40 percent black.
“The disparity between the racial demographics of the population in custody, who must bear the violence, danger, and misery of Alabama’s prisons, and the racial demographics of those in Community Corrections, who enjoy a measure of liberty, is striking,” the report reads.
In Baldwin County, 18 months in a pretrial diversion program can cost a person $3,010.
The report notes that in Lee County, traffic cases can be disposed of through pretrial diversion for $673, DUIs are $1,183, while felony drug offenses cost $1,713.
“Participants deemed poor enough for an appointed attorney can be required to pay an additional $500 in appointed attorneys fees, pushing the total cost for a felony above $2,000,” the report reads.
Of those polled by researchers 57 percent said they’d gone without food to pay to remain in the programs, 30 percent said they’d forgone paying on medical bills or for medication to do so and 12 percent said they failed to pay child support due to the costly programs.
“42% admitted to committing a crime to pay diversion costs and fees; 29% sold drugs; 24% stole,” the report reads.
Lack of data, roadblocks to success
“Alabama does not maintain any data on drug courts. The state does not maintain information about demographics, cost to participants, criminal charges, recidivism rates, length of time in drug court before graduation or termination, or any other data that would permit researchers, legislators, judges or anyone else to assess the efficacy of its drug courts.”
Researchers noted in the report that there is an employee of the Administrative Office of Courts who is doing some of that research, but that it’s unclear if that data, if completed, will be made public.
The difficulty of getting to required drug court appearances is exacerbated because “people are required to plead in to and attend drug courts in the jurisdiction where they are charged, not the jurisdiction where they live.”
One man, whom researchers witnessed at a drug court in Marengo County, had to drive from his home in Etowah County to get to the court, a 364-mile round trip.
“For drug court participants who don’t have licenses or who lack access to a vehicle of their own, this is a terrible obstacle, even an impossible one,” the report reads.
Andrew Brasher confirmed to 11th Circuit Court of Appeals
Tuesday, the U.S. Senate voted to confirm former Alabama Solicitor General Andrew Brasher to the United States Court of Appeals for the 11th Circuit Court. U.S. Senator Richard Shelby, R-Alabama, voted for Brasher’s confirmation; but Sen. Doug Jones, D-Alabama, voted against.
“Andrew Brasher’s confirmation to sit on the U.S. Court of Appeals for the Eleventh Circuit is a testament to his vast legal ability and commitment to upholding the rule of law as it is written,” said Senator Shelby. “I believe Judge Brasher has served with impartiality, integrity, and purpose as a district judge, and I am confident he will continue to do so in this new capacity. I commend President Trump on his decision to nominate Judge Brasher to the Eleventh Circuit and know that his dedication to justice will contribute to the respected standards of our nation’s judicial system.”
Brasher was nominated by President Donald J. Trump (R) in November 2019.
Alabama Attorney General Steve Marshall (R) praised the U. S. Senate for its confirmation of Judge Brasher.
“The Senate’s confirmation of Judge Andrew Brasher to the U.S. Court of Appeals is a victory for the rule of law,” said AG Marshall. “Judge Brasher’s deep record of public service, combined with his impeccable legal credentials, more than qualify him for a seat on the 11th Circuit Court of Appeals. I am especially proud of his contributions as Solicitor General for the State of Alabama, where he successfully argued cases before the Alabama Supreme Court, the 11th Circuit Court of Appeals and the U.S. Supreme Court. Without a doubt, Judge Brasher will bring a renewed focus to upholding the law as he assumes his new position on the federal appeals court.”
U.S. Senator and former Texas Solicitor General Ted Cruz, R-Texas, said, “One of the most important legal developments of the last quarter-century is the rise of state solicitors general. State attorneys general are recruiting top-tier legal talents and empowering them to have a significant impact on major constitutional issues being litigated across the country. Unsurprisingly, that top-tier legal talent is more and more being looked to for judicial nominations.”
Brasher’s confirmation raises the number of former state attorney generals appointed to the federal bench by Pres. Trump to 26.
“They’re all outstanding lawyers with remarkable academic records and were distinguished practitioners long before they came to the attorney general’s office,” Marshall said. “But beyond that, solicitor generals were involved in the most significant constitutional cases around the country, which is, I think, a perfect training ground for individuals who ultimately make those decisions.”
Republican Attorney General Association (RAGA) Chairman and Louisiana Attorney General Jeff Landry saod, “If you really want to impact policy—which is kind of sad when you think about it—really, AGs have been able to impact policy greater than anybody of the legislature right now, because of the litigious nature of our [political] environment. So it’s been a great way to actually get some things done.”
RAGA Executive Director Adam Piper added, “When you have folks who for eight years were the last line of defense for our nation and the rule of law, it’s a pretty good predictor [that] these folks are rock solid, making them one heck of a farm team and a pretty easy call-up. It’s not a risky move as we saw with frankly a lot of the Bush judges. You were taking folks up and kind of like shaking a Magic 8 Ball hoping they’re gonna be conservative judges.”
Brasher has served as a district judge for the Middle District of Alabama since May 2019, having been first nominated by President Trump in April 2018. Prior to his time as a district judge, he served as the solicitor general of the state of Alabama. In this capacity, he argued cases in front of the U.S. Supreme Court, the U.S. Court of Appeals for the Eleventh Circuit, and the Alabama Supreme Court. Brasher tried cases in Federal and State courts, during which he won two “Best Brief Award” honors from the National Association of Attorneys General. Before his appointment as Solicitor General in 2014, he served for several years as Deputy Solicitor General.
Prior to joining the Alabama Attorney General’s office, Brasher practiced in the litigation and white collar criminal defense practice groups in the Birmingham office of Bradley Arant Boult Cummings LLP. Brasher also served as a law clerk to Judge William H. Pryor, Jr., of the U.S. Court of Appeals for the Eleventh Circuit after earning his Jaw degree from Harvard Law School, where he graduated cum laude. During his time at Harvard, he was a member of the Harvard Law Review and winner of the Victor Brudney Prize. He was also the first of his family to graduate from law school. Judge Brasher received his Bachelor of Arts with honors from Samford University in Birmingham, where he graduated summa cum laude and currently serves on the Board of Overseers.
Brasher’s confirmation was opposed by many in the Senate.
U.S. Senator Chris Coons, D-Deleware, said in opposition to Brasher’s confirmation, “Voting rights are at the very foundation of civil liberties and civil rights in our society, and we should be doing everything possible to protect and defend them. I’m gravely concerned that Judge Andrew Brasher, if confirmed to the Eleventh Circuit, would only continue the efforts to roll them back. Judge Brasher’s record and lack of candor during his confirmation hearing show that he is unfit for this appellate judgeship in the Eleventh Circuit, and I will be voting no.”
Andrew Gillum is a former Mayor of Tallahassee and was the 2018 Democratic nominee for governor of Florida and is a fellow at People For the American Way.
“I am deeply, deeply disturbed about the nomination of Andrew Brasher to the Eleventh Circuit Court of Appeals,” Gillum wrote in opposition. “This nomination is being engineered by the Trump White House and Senate Republicans with a very specific agenda in mind. This nomination is a very deliberate nail in the coffin of voting rights in the Eleventh Circuit, at a very deliberately chosen time in our history.”
Benard Simelton is the President of the Alabama State Conference of the NAACP.
“From Selma to Shelby County, Alabama is ground zero for voting rights,” Simelton said. “Andrew Brasher has been on the wrong side of every voting rights case he has touched. His nomination is a slap in the face to African Americans, and in particular to our heroes like John Lewis and Dr. Martin Luther King, who risked their lives to get us the vote. As we celebrate the 55th anniversary of Selma, we call upon every senator to honor those who marched by voting against Brasher’s confirmation.”
U.S. Senator Doug Jones, D-Alabama, was a “No” vote on Brasher’s confirmation.
Sen. Jones said recently, “In To Kill a Mockingbird, Atticus Finch said, “The one thing that doesn’t abide by majority rule is a person’s conscience.” All along, my conscience has been my guide. But voting my conscience does not require courage — it simply requires doing what I know is right.”
“Another good, solid conservative judge has been confirmed, yet Doug Jones voted no. Just the latest reminder that we MUST #DumpDoug!” Senate candidate Congressman Bradley Byrne, R-Montrose, said on social media. “In the Senate, I’ll vote to confirm President Trump’s judges and work to make sure our Constitution is protected against activist judges.”
Report: Cost to operate county jails, sheriff’s departments increased by $93 million since 2014
The Association of County Commissions of Alabama (ACCA) released an updated research publication yesterday showing that the cost to operate county jails and sheriff’s departments statewide increased by $93 million from 2014 to 2019.
The research publication, named “Alabama’s Unresolved Inmate Crisis,” was updated from its initial release back in December to include data from the 2019 fiscal year from Alabama county governments. ACCA’s research highlights the growth of state inmates in county jails over the past five years.
“Funding the growing needs of county jails and sheriff’s departments since 2015 has been done by reducing other services at the local level, ” ACCA Executive Director Sonny Brasfield said in the report. “For counties, that’s really the only option available.
“At this point, we’re very concerned that counties will soon have to look at reducing law enforcement costs to pay for the parole and probation violators and Class D felons who — since 2015 — now have to sit in the county jail, where taxpayers pay for their medical care, lawsuits and housing.”
Based on the recent data collected from a January 2020 survey of all 67 counties, the publication’s most significant findings show:
- County jail operation costs increased by $43 million from 2014 to 2019, which is nearly three times the rate of inflation during that time period.
- County sheriff’s department operation costs increased by $50 million from 2014 to 2019, more than two and half times the rate of inflation.
- Combined county jail and sheriff’s department operation costs increased by $93 million from 2014 to 2019, nearly three times the rate of inflation.
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