Saturday, September 7, 2013

Did Republican Judge Alison Austin Violate Ethical Rules? And Does The Huntsville Times Care?

If you read this week, or followed the local news in the Huntsville television market, you would have been treated to a story about Clarice Ragland, the wife of Tommy Ragland, the well-known Democratic probate judge of Madison County. You would have read that she was such a deadbeat that she had to be arrested for failing to pay a small debt. The order for her arrest was issued by District Judge Alison Austin, a Republican first appointed to the court by Bob “Choctaw” Riley. If you get all your news from, you would have been told that:
Ragland was ordered to appear for a July 23 show-cause hearing because she had not paid the $200. That order said Ragland would be arrested if she did not appear in court.
The problem is, the story you would have read bears little resemblance to the story that actually happened. (1) Ragland wasn’t ordered to appear for the July 23 hearing - “Chiropractic Care,” which was not identified as a corporation, partnership, or other entity, was. (2) The arrest order was not “because she had not paid the $200,” it was because Chiropractic Care had not answered discovery - the requirement that a party answer written questions, or produce requested documents. And (3), the order for the July 23 hearing did not warn Ragland she would be arrested, it told “Chiropractic Care” it would be arrested. (Come on, this is America, we know corporations can’t be arrested.) Three errors in two sentences is about par for Advance Publications (the owner of and The Birmingham News, The Huntsville Times, and The Mobile Press-Register). For those who would prefer to read for themselves the order of May 22, 2013, ordering Chiropractic Care to appear in court, here it is.

Now, Crestwood Medical Center did have a default judgment against Ms. Ragland for $200.00 and court costs. The story got that right. The story also got right that the suit appears to be over $200.00 in deductibles or copays for surgery, for which Ms. Ragland’s insurance had already paid over $40,000.00. Also, I understand that Ms. Ragland works at Chiropractic Care, and may be a part owner. (Corrections or clarifications based on personal knowledge on that point are welcome in the comments.) But an order to “Chiropractic Care” to do something is not the same thing as ordering Clarice Ragland to do something. Just like ordering Microsoft to do something isn’t the same thing as a court order to Bill Gates personally, unless he is also named in the order. Ask any lawyer you know about that.

With that in mind, let’s look at some more of the history of this case.

On January 22, 2013, Judge Austin ordered Chiropractic Care - a business - and not Ms. Ragland individually, to respond to discovery about what property it owned. Here is that order.

On May 22, 2013, Judge Austin issued her order, shown above, ordering Chiropractic Care – again, not Ms. Ragland – to appear in court on July 23. Under that order, Chiropractic Care could have sent Ms. Ragland, or it could have sent another employee, or even just a lawyer, and been in compliance with the order. The order didn’t require Ms. Ragland to appear personally, even if she was or is the sole owner of Chiropractic Care.

On June 13, 2013, Judge Austin entered an order denying a motion to compel filed by Crestwood, because its lawyer failed to comply with the Rules of Civil Procedure. It’s not clear what motion this order relates to, but this is a small claims case. Under Alabama Rule of Civil Procedure 26(dc) (on page 5 of the linked document), Crestwood should have gotten the court’s prior approval before serving its discovery in the first place. (Actually, many lawyers believe that you can’t get discovery in a small claims case even with court permission, because of Alabama Small Claims Rule G.) The case docket reflects that Crestwood did not get this permission; therefore all subsequent efforts to enforce that discovery are invalid, even against Chiropractic Care.

On July 31, 2013, Judge Austin entered an order for the arrest of Ms. Ragland, despite the fact there had never been an order to appear – or to compel discovery – addressed to her as an individual. That order is here.

On June 10, 2013, Judge Austin, a Republican, announced that she will be running for a circuit court judgeship being vacated by the retirement of Circuit Judge Billy Bell. If Judge Austin has an opponent in the GOP primary, she can only benefit politically from having embarrassed a prominent Democratic elected official.

One can reasonably ask why Ms. Ragland, at some point much earlier in these proceedings, hadn’t paid a $200.00 bill from the hospital and been done with it. Or even paid it before it got as far as court. Just as one can easily ask why Crestwood, which had already collected $41,000.00 from her insurance, didn’t write off the remaining balance, as it does every week for ER patients who can’t pay. No one, even someone with a default judgment, should be asked to pay a bill the hospital can’t explain, if it was in fact asked to do so.

The really troubling thing here is that the issuance of the writ of arrest violated any number of clear legal rules known to any second-year law student. This much was, or should have been, apparent not only to Crestwood’s lawyer, Raymond Waldrop, but to Judge Austin. You cannot cite for contempt, or order the arrest of, an individual who has not been personally made the subject of a court order. “In order to establish that a party is in criminal contempt of a court order, a contempt petitioner must prove beyond a reasonable doubt that the party against whom they are seeking a finding of contempt was subject to a lawful order of reasonable specificity.” L.A. v. R.H., 929 So.2d 1018, 1019 (Ala.Civ.App. 2005)(italics mine). Under Alabama Const., Art. I § 20, imprisonment for nonpayment of debt is supposed to be prohibited. If the letter of that law wasn’t violated here, the spirit certainly was.

On July 31, 2013, the same day Judge Austin entered her patently invalid arrest order, the Alabama Court of the Judiciary imposed a 90-day suspension without pay on Jefferson County Circuit Judge Dorothea Batiste for similarly abusing contempt powers against parties in civil actions, which it ruled was a violation of judicial ethics. Ms. Ragland would be well within her rights to file an ethics complaint against Judge Austin on the same grounds. (Ms. Ragland, if you are reading this, their complaint form is here.) If Judge Austin is routinely and improperly ordering the arrest of civil defendants, she should be punished as severely as Judge Batiste. If she is not, and the Ragland case is unique, the Judicial Inquiry Commission would be justified in inferring a political motive, and she should be punished even more severely than Judge Batiste. If the judicial ethics authorities don’t act, they will just prove the point of critics who said Judge Batiste was singled out because of her race. (Interestingly, Judge Batiste is a Republican.)

As for Mr. Waldrop, in addition to possible ethics violations, he has subjected himself, his client, and Sheriff Blake Dorning to civil liability for wrongful imprisonment and abuse of process. Judge Austin is saved from that lawsuit only on the basis of judicial immunity.

The voters of Madison County need to think long and hard before they promote Judge Austin to the circuit court, if this case is any indication of her legal skills. In his classic existential novel Der Prozeß (The Trial), Czech author Franz Kafka has K., his protagonist, shock the Examining Magistrate by saying in open court:
There can be no doubt that behind all the actions of this court of justice, that is to say in my case, behind my arrest and today’s interrogation, there is a great organization at work. An organization which not only employs corrupt warders, oafish Inspectors, and Examining Magistrates of whom the best can be said that is that they recognize their own limitations, but also has at its disposal a judicial hierarchy of high, indeed of the highest rank, with an indispensable and numerous retinue of servants, clerks, police, and other assistants, perhaps even hangmen, I do not shrink from that word. And the significance of that great organization, gentlemen? It consists in this, that innocent persons are accused of guilt, and senseless proceedings are put in motion against them.

This week, there have been far darker happenings in the Madison County Courthouse than in all of Kafka’s attics.

Thursday, June 13, 2013

Why Lowell Barron Will Walk Away a Free Man, or, Why Luther Strange Will Never Be Governor - Part II

In the early 1930’s, an Attorney General of Alabama prostituted his office to the cause of injustice, in an effort to propel himself to the Governor’s Mansion. Thomas E. Knight, Jr., of Greensboro personally took charge of the appeals, and the subsequent rounds of trials, of the Scottsboro Boys. Knight is one of the more execrable characters in Alabama’s history. As Attorney General, he secured affirmances of the convictions of the Scottsboro Boys, with the first round of opinions written by Alabama Supreme Court Justice Thomas E. Knight, Sr. Weems v. State, 224 Ala. 524, 141 So. 215, rev’d sub nom. Powell v. Alabama, 287 U.S. 45 (1932). Arguing against the audacity of the suggestion that blacks should be allowed to serve on Alabama juries, he declared that it was “an attack on the sovereignty” of Alabama, presaging the states rights rhetoric of the current incumbent. When asked by defense counsel to address the defendants as “Mr.,” as he had done for white witnesses, rather than by their first names, he stated that “I am not in the habit of doing that.” He became so invested in the prosecution that, after being elected Lieutenant Governor in 1934, he secured appointment as a special prosecutor to continue working on the case. In one of the stronger arguments for the existence of karma, he died at the age of 38 in 1937, without ever attaining the governorship he so badly coveted.

While the office of Attorney General has subsequently been ably filled with such forward-looking Generals as Bill Baxley and Don Siegelman, the present holder of that office is a full-bore regression to the disgraceful conduct of Knight. Once again, Scottsboro, which lies in the Eighth State Senate District, is involved. Luther Strange is just the sort of fellow the late, great Judge (and Senator) Howell Heflin had in mind when he coined the acid phrase, “the Grey Poupon Mountain Brook crowd, the Gucci-poochie-coochie shoe-wearing, Mercedes-driving, Rolex-wearing, polo-playing, Jacuzzi-soaking, Perrier-drinking, Aspen-skiing, ritzy rich, high-society Republicans who eat broccoli” to describe his 1990 opponent, Strange’s fellow Mountain Brookie, Bill Cabaniss. Like his predecessor Knight, Strange has stooped to prosecutorial misconduct by securing an unethical, fraudulent indictment of former State Senator Lowell Barron of DeKalb County, and Barron’s former campaign staffer, Jill Johnson, for political gain. The charges against Barron and Johnson are so weak that, despite the adage that a prosecutor can get a grand jury to “indict a ham sandwich, Strange could not – despite repeated efforts – secure an indictment in Jackson County. He had to shop the case to a grand jury in more-Republican DeKalb to get the indictment, and even that took several months. In a previous post, I explained why it is not a violation of the Alabama Ethics Act to pay a worker in your political campaign. In this post, I will show that it is also clearly not a crime under the Fair Campaign Practices Act (“FCPA”) to pay a campaign employee.

The Ethics Act provision made the subject of some counts of the Barron-Johnson indictment is relatively simple. By contrast, the FCPA provision charged in that indictment is anything but simple. The often-convoluted language is as follows:

(a) A candidate, public official, or principal campaign committee as defined in this chapter, may only use campaign contributions, and any proceeds from investing the contributions that are in excess of any amount necessary to defray expenditures of the candidate, public official, or principal campaign committee, for the following purposes:
(1) Necessary and ordinary expenditures of the campaign.
(2) Expenditures that are reasonably related to performing the duties of the office held. For purposes of this section, expenditures that are reasonably related to performing the duties of the office held do not include personal and legislative living expenses, as defined in this chapter.
(3) Donations to the State General Fund, the Education Trust Fund, or equivalent county or municipal funds. Donations to an organization to which a federal income tax deduction is permitted under subparagraph (A) of paragraph (1) of subsection (b) of Section 170 of the Internal Revenue Code of 1986, as amended, or any other charitable, educational, or eleemosynary cause of Section 501 of Title 26 of the U. S. Code.
(4) Inaugural or transitional expenses. Ala. Code § 17-5-7(a).

Put into simpler English, this code provision says that money contributed to a campaign can only be used for “necessary and ordinary expenditures of the campaign,” expenses of the inauguration or office, or donated to a government or charity. These uses of the money are permitted; any other use of the money is a criminal offense.

Obviously, the most relevant of these legal alternatives is “necessary and ordinary expenditures of the campaign.” If the payments to Ms. Johnson fit that peg, the game is over and there is no crime. If Strange’s assistants try to argue to the Court that Ms. Johnson did not work for the campaign, which would make payments to her some sort of “expenditures of the campaign,” they will find themselves in contempt, and sanctioned by the Alabama Bar, in short order. As far as the statute goes, the only question is whether the payments were “necessary and ordinary.”

Granted, $58,000.00 and even a used, high mileage campaign car, are generous compensation. (The Kelley Blue Book value of a 2007 Toyota Camry, which is the car named in the indictment, in fair condition, is $5,945.00. I understand this was a high-mileage campaign vehicle.) At first blush, Strange might argue that this compensation was not “necessary and ordinary.” If one follows the letter of the statute, and presumes that payments this large were not “necessary and ordinary,” you could argue that the statute was violated, and a crime committed. But the first thing you have to look at here is that the $50,000.00 payment was made after Barron lost the 2010 election, and this looks like nothing so much as a proper severance payment to a loyal staffer who had worked for Barron for years; running campaigns, coordinating community events, and handling constituent matters; and who was about to be unemployed.

Even more significant, as I pointed out in Part I of this post, is that Strange is nothing if not a blithering hypocrite. As I related there, in the 2010 election cycle, Strange paid Jessica Medeiros Garrison, a fellow Mountain Brook resident, and her corporation, MDM27 Holdings, Inc., the vastly princelier sum of $227,727.99. This sum seems even more extravagant when you consider that Strange’s expenditure disclosures reveal that he had specialist firms – media, polling, and so
forth – doing most of the heavy work of his campaign. If what Lowell Barron did was a crime, then the only proper thing for Luther Strange to do is turn himself in immediately at the nearest police station that has an orange jumpsuit to accommodate his 6’9” frame.

At this point, it’s pretty clear that the FCPA was not violated by Senator Barron’s payments to Ms. Johnson. Pretty clear, but a really biased Republican would still say that there is enough of a chance that a motion to dismiss the indictment should not be summarily granted; that there is enough of a remote chance that a jury might find that the payments to Ms. Johnson, being as large as they are, were not “necessary and ordinary” expenditures of the Barron campaign, so as to allow the case to go to trial. Sorry, Republican partisan, that argument fails. It fails because a court not only has to look at the statute in a criminal case, it has to determine whether that statute, as applied to the defendant, violates the Alabama and U.S. Constitutions. One of the best known parts of the U.S. Constitution is that part that makes it possible for bloggers like me to tell the truth about a corrupt, unethical Attorney General: the free speech clause of the First Amendment.

The Federal Election Campaign Act of 1971, Pub. L. 92-225, § 104, 86 Stat. 3, 5 (1972), placed dollar limits on the amounts candidates for federal office could spend on advertising and broadcast media. In the course of striking down those expenditure limits, the United States Supreme Court stated:

The First Amendment denies government the power to determine that spending to promote one’s political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign. Buckley v. Valeo, 424 U.S. 1, 57 (1976).

This language has been construed to be “a broad holding that government does not have the right to pass judgment on how or why a person expends campaign resources.” Homans v. City of Albuquerque, 366 F.3d 900, 915 (10th Cir. 2004).

Game over. The chickens have hatched and can be counted. The fat lady has sung. As long as campaign contributions are expended on the campaign, the First Amendment absolutely prohibits regulation of how they are spent, or how much is spent. Government may not prohibit political speech expenditures simply because they are “wasteful, excessive, or unwise;” neither may it require, as the FCPA purports to
dictate, that they be “necessary and ordinary.” If Senator Barron had chosen to spend his entire campaign fund to hire Hooters Girls at $10,000.00 apiece for the day, to wave his signs at voters at polling places on Election Day, he would have been guilty of questionable taste. He might have even become as big a joke as Shad McGill. (It being Alabama, I will refrain from speculating about whether Barron might thus have beaten him.) But as long as the Hooters Girls stayed 30 feet from the front door of the polling place, there would have been no crime. As with the Ethics Act charges, the FCPA counts of the indictment are also due to be dismissed.

The Barron and Johnson cases are in front of DeKalb County Circuit Judge Randall Cole. Cole, a Democrat, is the most senior circuit judge in the state, and was re-elected to his final term in 2012. (He will be ineligible for further terms due to age limits.) For years, Cole was selected by his fellow circuit judges to sit on the Judicial Inquiry Commission, which investigates ethics charges against judges. For much of his time on that panel, he was selected by its members to be its Chairman. Cole’s assignment to the case is fortuitous for Barron and Johnson. Cole need fear no political blowback from (properly) dismissing the charges before trial, even if such pedestrian concerns ever influenced his rulings. While Strange could appeal a dismissal to the Court of Criminal Appeals, that Court would be more reluctant to reverse such an eminent trial judge. Even more troubling to “the Criminals” is that they are themselves all
elected judges, and should be disinclined to issue a ruling that subjected them to potential indictment. Presiding Judge Mary Windom (left, front in the photo), for example, paid her campaign operative Bill Goolsby $17,500.00 in her 2008 campaign. Was that salary criminally “converted to [his] personal use” under the Ethics Act? She also paid Auburn Network, Inc., and the affiliated Network Creative Media some $107,700.40, and we all know to whose “personal use” that got “converted.” Were those “necessary and ordinary expenditures” of her campaign? Reversing a dismissal would create a precedent that could get these Republicans indicted.

This brings us back to the way Strange is channeling the ghost of Thomas Knight, Jr. This indictment is pure, dirty politics. At least some political pundits view Strange as a potential primary challenger to Governor Bentley in 2014.
Note Strange’s less-than-supportive posture and visage during Bentley’s 2013 State of the State Address, while others are shown applauding. Strange’s fraudulent indictment of Barron and Johnson is nothing more than an effort to throw red meat to the Republican base. An additional Republican political motive comes from rumors that Barron is contemplating either an effort to regain his Senate seat, or perhaps the Lieutenant Governor’s chair, in 2014. While Strange knows that these charges are fraudulent and won’t stick, he doesn’t care. To the low-information voter, “Barron” and “indictment” now have a subconscious association. To combat this, we Democrats have to put on our A-game after the charges are tossed, to keep the spotlight on Strange’s unethical behavior. From comments on to letters to the editor to statements by Party leaders, the drumbeat of Strange’s impropriety has to be maintained. Not only to make him suffer the consequence of his wrongdoing, but to undo the unjustified damage to the reputations of Senator Barron, Ms. Johnson, and the Party as a whole.

Before I close this Part II, I have to return for a moment to the petite, lavishly-paid Jessica Garrison, and her incredibly tall six-year-old son Michael. According to statistics maintained by the Centers for Disease Control, fewer than 5% of all boys are four feet tall at age six, and he’s obviously well past that.
Titian: David and Goliath
He’s going to make the basketball coach at Mountain Brook High School happy someday. Why, at this rate, he will grow up to be as tall as ... Goliath. Where did you think I was going with that, anyway??

Thursday, June 6, 2013

Why Lowell Barron Will Walk Away a Free Man, or, Why Luther Strange Will Never Be Governor - Part I

One of this year’s leading political news stories was the indictment of former State Senator Lowell Barron, shown here before his crippling tractor accident last year, and his former campaign employee Jill Johnson, on charges of violating the Alabama Ethics Act and the Fair Campaign Practices Act. As if on cue, media sources from across Alabama, which have never mentioned the corruption of “Choctaw Bob” Riley or Speaker Mike Hubbard, jumped on the story as an example of “corrupt Democrats.”

The relevant facts of this case are a matter of public record, fully disclosed in Barron’s campaign filings. Jill Johnson was a long-time political employee of Barron, and she is known all across his former district for her campaign and constituent services work. When Shad “Hands Off, He’s My Man!” McGill upset Barron in the 2010 general election, Barron had no further need of a campaign staffer. Like many grateful employers, Barron gave Johnson a well-earned severance bonus. He gave her title to the campaign’s high-mileage, four-year-old Toyota Camry, and two cash payments of $6,000.00 and $50,000.00. The indictment also charges Barron and Johnson for a payment of $2,000.00 during the campaign. I guess Republican Attorney General Luther Strange hasn’t practiced enough real law to know that it’s a crime under § 16 of the Fair Labor Standards Act (29 U.S.C. § 216) not to pay your employees their wages.

In fact, his lack of real legal experience notwithstanding, Strange knows that his indictment of Barron and Johnson is frivolous, perhaps to the point of being unethical conduct on his part as a member of the Alabama Bar. In this post, I am going to look at the Ethics Act charges against Barron and Johnson. In a future post, I will talk about the Fair Campaign Practices Act part of the indictment.

 When Alabama first adopted the Ethics Act in 1973, it was one of the first of its kind in the country. To be sure, over the years, it has provided the means for ridding Alabama politics of a number of unsavory political figures. Republican Governor Guy Hunt comes to mind. Sometimes, it has been criticized as being too strictly applied, as when the Ethics Commission has fined public employees for using the office fax machine for a local personal fax, at no cost to the taxpayers. In balance, though, the law has been beneficial for the state. It is Strange’s blatantly political use of the Act – in the year before an election in which Barron is rumored to be seeking to regain his Senate seat – that is so worthy of condemnation.

The provision of the Ethics Act that Barron and Johnson have been charged with violating is deceptively simple:

Contributions to an office holder, a candidate, or to a public official’s inaugural or transitional fund shall not be converted to personal use. Ala. Code § 36-25-6.

Now, the first thing anyone has to realize is that this part of the Ethics Law only reaches contributions to Barron’s campaign. This case does not involve one penny of taxpayer money. The second is, as noted above, that Barron properly disclosed these payments on his campaign disclosure reports, which are available to anyone online. Finally, according to lawyers involved in the case, Johnson reported receiving these payments on her income tax returns, and paid tax on them. I think we can safely assume that is true, because otherwise she would have been charged with tax evasion.

Let’s unpack the language of the statute. No one is denying that the funds were campaign funds, or, in the words of the statute, “contributions to an office holder [or] a candidate ...” The only question is whether the payments caused contributions to be “converted to personal use.” Now, if Barron had paid these funds to himself, there would be no question that the law had been violated. That is the thing – with inauguration contributions – that got Guy Hunt convicted. But none of the payments in the indictment were to Senator Barron. They were to Johnson. So, Barron and Johnson are only guilty of violating the Ethics Act if payments to her constitute “conversion to personal use.”

Obviously, that phrase “converted to personal use” is the key to these charges. The Ethics Act does not define “personal use.” This leaves no obvious answer to the question, whose “personal use” are we talking about? When it comes to the Alabama Ethics Act, I think it’s safe to say that no one knows more about it than the Alabama Ethics Commission, the independent agency that enforces it. Their staff spends a minimum of 40 hours every week thinking about it, and the Commissioners themselves spend countless hours studying it before and during meetings. In a 2005 opinion to Circuit Judge Joseph Brogden of Escambia County, the Commission had this to say about this statute:

Provided the disposition of excess campaign funds are not converted to the personal use of the candidate, a member of his or her family or a business with which he or she is associated, the disposition of excess campaign funds is controlled [only] by The Fair Campaign Practices Act, found in Title 17 of the Code of Alabama. Alabama Ethics Commission, Advisory Opinion No. 2005-15 to Hon. Joseph Brogden, p. 5 (April 6, 2005)(emphasis added)(approving transfer of surplus campaign funds to church of which officeholder was member, on proviso that he was not an officer or director, and advising that such a transfer was only subject to the FCPA).

In other words, if the transfer is not to the candidate/officeholder, his family member, or his business, Ala. Code § 36-25-6, which is what Barron and Johnson are charged with violating, does not apply to the transfer, and there is no crime. Yes, this Opinion adds words (“a member of his or her family or a business with which he or she is associated”) that are in the statute only by implication, limiting “personal use” to the candidate/officeholder or his family. But when you think about it, no other reading of the law makes sense. 

First, at some point, when campaign contributions are spent on the campaign, they are going to be “converted” to someone’s personal use. When a candidate buys a radio spot, the funds are “converted to the personal use” of the owner of the radio station. Purchase of a newspaper ad means campaign contributions are “converted to the personal use” of the owner of the newspaper. The newspapers that have been condemning Barron without a trial ought to think long and hard about what that interpretation means to their owners. And today, every campaign above the level of dogcatcher has at least one paid staffer. There is no real difference in the legitimate remuneration of a staff member, and the purchase of an ad in the media. If candidates are to exercise their First Amendment right to campaign, contributions to their campaigns have to be “converted to the personal use” of their staff and vendors. “If the First Amendment has any force, it prohibits ... fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 349 (2010). Hiring and paying a campaign staff member is “simply engaging in political speech.”

Secondly, the interpretation of the Ethics Commission makes even more sense when you think about the obvious purpose of this section. Both the Ethics Act and the Criminal Code have bribery provisions. This provision is just a backstop to them. If it weren’t there, a candidate or officeholder could evade a bribery charge by just having the bribing party make a contribution to his campaign, then disburse the funds to himself, rather than directly pocketing a bribe. That’s obviously not an issue when the money goes to a staffer who is not a candidate’s family member.

Finally, the Federal Election Campaign Act of 1971 has a very similar prohibition stating that a “contribution or donation described in subsection (a) of this section shall not be converted by any person to personal use.” 2 U.S.C.A. § 439a(b)(2). The Federal Election Commission has interpreted that statute to prohibit only transfers to the candidate or his family, and even then, allows such payments if the payment to a family member for campaign work is not “in excess of the fair market value of the services provided.” 11 C.F.R. § 113.1(g)(1)(H). Ms. Johnson, it goes without saying, is not a member of Senator Barron’s family.

In short, Senator Barron’s payment of compensation to his staffer, for work done, is not a violation of the Alabama Ethics Act. Attorney General Strange and his assistants know this, and should never have charged Senator Barron or Ms. Johnson. In fact, this law is so clear, that Attorney General Strange has probably violated Rule 3.8 of the Rules of Professional Conduct of the Alabama Bar, which states that a “prosecutor in a criminal case shall ... refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” A criminal defense lawyer I know recently pointed out to me that there have been many cases where both trial and appellate courts have thrown out convictions of even clearly guilty murderers because of intentional prosecutorial misconduct. He went on to tell me that he had searched the back issues of The Alabama Lawyer, in which all disbarments, suspensions, and reprimands of lawyers are published, and had never found a single case in which a prosecutor had been given a sanction for prosecutorial misconduct. (I welcome any correction to that observation in the Comments.) Not even when that misconduct was in a death penalty case. Perhaps this will be the case that changes that.
North Carolina disbarred Mike Nifong, the district attorney who brought bogus rape charges against members of the Duke University lacrosse team in 2006. At least Nifong had a witness who claimed to have been a victim of an actual crime. Perhaps someone with skin in the game will file a complaint with the Alabama Bar when these charges are disposed, and we can do as well as North Carolina.

There is another rule – this one a rule of common sense, involving glass houses and stones – that Attorney General Strange seems to have violated. Meet Jessica Medeiros Garrison. The photo below shows the petite Ms. Garrison next to the 6’9”, former college basketball player, Mr. Strange.
Like Ms. Johnson, Ms. Garrison spent 2010 working for a
candidate. In her case, the candidate was her fellow Mountain Brook resident, Luther Strange. She also owns a corporation, MDM27 Holdings, Inc., which tells the Secretary of State that its purpose is to provide “political marketing services.” As Strange’s 2010 campaign expenditure disclosures show, one of MDM27 Holding’s clients was his campaign. As calculated by the blog Legal Schnauzer, based on these compiled expenditure disclosures, Ms. Garrison and her corporation “converted to [her] personal use,” by Strange’s definition, some $227,727.99 of the campaign contributions to the Strange campaign - over three times what Senator Barron paid Ms. Johnson. You can review these reports, and a compilation of the sums paid Ms. Garrison, and check Legal Schnauzer’s math, here:

Ms. Garrison was paid for all this “work” while, as these reports show, Strange had different firms and consultants handling most of the parts of his campaign, such as media, polling, direct mail, and so forth. During part of the time in which she was getting these payments, she had joined the payroll of a white-shoe Birmingham law firm, Balch and Bingham, and couldn’t have been working full time for Strange. Nice work if you can get it.

Now, since the Attorney General is doing the exact same thing for which he indicted Senator Barron and Ms. Johnson, may we presume he will demand that he and Ms. Garrison be indicted, as well? That would, of course, be the honorable thing. And surely, the Attorney General is an honorable man. His fellow Republicans – Governor Bentley and Speaker Hubbard included – allowed contributions to their campaigns to be “converted to personal use” by their staffs.
Will Mr. Strange see to it they are indicted? That would be the honorable thing, and surely the Attorney General is an honorable man. So are they all, all honorable men.

I would ask that the readers of this post, and the coming post on the Fair Campaign Practices Act, do a service for their State, but more importantly, for Senator Barron and Ms. Johnson. Attorney General Strange has played this case for maximum political effect. His investigator arrested Ms. Johnson, and coordinated her arrival at the DeKalb County Jail with the news media. The major media in this state, especially our three largest newspapers and their joint website, have relied almost exclusively on the Attorney General’s office for the “facts” and “law” of this case, and have accurately reported neither as a result. What I want you to do, reader, is bookmark this post, and the coming Part II, in your browser. Keep your eyes on both the TV and newspaper coverage of this case as it proceeds. If you see a story about the case that does not point out the identical behavior of Mr. Strange and Ms. Garrison, or fails to point out the interpretation of the law by the Ethics Commission means there was no violation, get the reporter’s email, and send them a link to this post and/or Part II. Tell them you expect them to do better, since the information about the Attorney General and his “consultant” is also a matter of public record. Tell them you expect them to accurately report the law, as these posts set out, and attorneys for Senator Barron and Ms. Johnson will doubtless do in court. Send letters to the editor

This is not a criminal prosecution, because there has not been a crime. As a result, these charges will not stand up, regardless of what the media report. But if we can keep the media honest, not only will Senator Barron and Ms. Johnson walk away vindicated, the real criminal in this case – Luther Strange – will limp back to Montgomery with his dream of riding Barron and Johnson into the Governor’s Mansion in tatters. We can control the headlines with pressure on the media.

Before I close this Part I, let’s return to the cute, petite, pixyish Ms. Garrison. What on earth would Ms. Garrison do with that kind of money “converted to [her] personal use?” Well, it costs a lot to raise a proper Mountain Brook kid these days. Meet Michael Garrison, who just turned six in March, sitting next to Mommy, and, as you can see with your own eyes, already reaching her ears. Isn’t he a cute, tall six-year-old, growing like a weed on triple-13?

Stay tuned, friends, for Part II. And would someone get General Strange something to drink? He is not looking at all well over there.

Monday, June 3, 2013

I Do Not Want to Hear One Word of Complaint About Dr. Joe Reed. Not One.

Last Saturday, I attended the meeting of the State Democratic Executive Committee, of which I am not a member.

Which is more than 174 of the 285 members of that Committee did.

This was not a trivial or routine meeting. The office of Chairman - or “Chair,” as the amendment to the Bylaws adopted at that meeting now calls it - has been vacant since the resignation of Judge Mark Kennedy. That in itself was enough reason for any member to set aside any but the most pressing personal reasons to attend. Our Party has no one who can speak with the full authority of the office on any issue that presents itself to the public attention. There is no one in place to be making the long-term plans that are vital to any success we hope to have in 2014. Perhaps most importantly, there is not a permanent Chair in place to address the dire financial situation of the Party. As Acting Chair Nancy Worley noted, the Party’s balance sheet reflects insolvency. Outstanding debts exceed $500,000.00, and cash on hand is barely sufficient to pay the rent, phone, and power bills at the Party headquarters for another month or two. Unless this financial situation improves - and it will not so long as there is no permanent Chair - 2014 will resemble nothing so much as the surrender of the CSS Shenandoah

This meeting cannot be understood without accounting for the role in Party affairs of Dr. Joe Reed, head of the Alabama Democratic Conference and Vice Chair for Minority Affairs of the SDEC for far longer than the lifespans of the Millennials who make up the bulk of the Obama rank and file. Through fair means or foul, Reed controls the largest single bloc of votes on the SDEC. Of the numerous questions on which division of the house was called at Saturday’s meeting, every one went Reed’s way by a roughly 95-15 vote. Even if you assume, as I do, that Reed had almost all of his firm supporters present at the Embassy Suites, a bloc of 95 votes on a 285-member Committee is significant.

Reed has one thing in common with Justin Bieber: everyone seems either to hate him, or to love him. The dedication of his supporters is evident from the uniformity of the votes at Saturday’s meeting. On the other hand, it doesn’t tax Google’s servers to find withering criticism of his positions on issues, or his leadership style.

It is not my intention, in this post, either to bury Cæsar, or to praise him. Reed and I have been on the same side of many fights, and fought like rutting bucks on some issues. The important thing for consideration here is Reed’s role in the disgraceful attendance at Saturday’s meeting, even if it was not, strictly speaking, his direct fault.

As everyone following intraparty Democratic politics in Alabama knows, Judge Kennedy’s resignation as Chair was prompted by a dispute with Reed over Party management issues. Most notably, Kennedy had dismissed a Party staffer who was a Reed apparatchik, and opened an SDEC field office in Birmingham, which Reed opposed. After his resignation, Kennedy formed the Alabama Democratic Majority, a group with no legal ties to the Party, which says it wants to do grassroots work to rebuild the Party. Unkind public words have flown between Kennedy and his supporters on one hand, and Reed and Worley on the other.

Try as I might, I cannot blame the embarrassing number of empty seats at Saturday’s meeting on anything other than these hard feelings. Reed’s opponents on the Committee, perhaps persuaded they could not outvote him, simply stayed home by the score. Looking at the most current roster of the SDEC, I can easily count “scores” of members who generally oppose Reed’s positions on the Committee, who were not there.

To Dr. Reed and his supporters, I tip my hat. Had I been a member of the Committee, I probably would have voted against you on some issues that came before the Committee at that meeting. But you took your responsibility as holders of an elective office seriously, and showed up to fulfill your duty as holders of that office.

To the 15 or so Reed opponents who attended, and who taxed, almost to its limit, Acting Chair Worley’s encyclopedic knowledge of Robert’s Rules of Order,  I likewise raise my glass. Quixotic though your efforts may have been, you have earned the right to cuss Joe Reed to your heart’s content.

To the Reed opponents who were elsewhere Saturday - a large fraction of the 174 absentees - I direct your attention to the title of this post.

In a touchy-feely sense, the SDEC is not “the Party.” The Party consists of the hundreds of thousands of working Alabamians who share our belief in public education, equality, and the value of human dignity over corporate profits. But in the eyes of the Democratic National Committee, and in the view of the Code of Alabama, the SDEC is “the Party.” However valuable the contributions of the ADM, the Young Democrats, the College Democrats, the High School Democrats, the Alabama Federation of Democratic Women, the House and Senate caucuses, or, for that matter, Reed’s ADC, they are not the governing body of the Party. They will not be called on by the DNC to select Alabama’s representatives to it, or delegates to the 2016 Democratic National Convention. They are not charged by law with conducting the primary, or adjudicating election contests. (The Alabama Supreme Court has held that, “in hearing election contests, party committees sit as courts of special or limited jurisdiction.” Perloff v. Edington, 293 Ala. 277, 280, 302 So.2d 92, 95 (1974)(emphasis added).)

With that thought in mind,  can you imagine the outrage if a judge stayed home because he didn’t like what was on his court calendar that day? Or what would be said if a member
of the Legislature or a city council boycotted a session because they weren’t going to get their way - or simply because they had “other things” they wanted to do? To be a member of the SDEC is to hold an elected public office, and if you’re going to revel in your recognition as “our State Committeewoman” at the local Party club meeting, you need to respect that office, and its duties, as much as you would a seat on the city council or county commission.

I acknowledge that notices for this meeting were late getting out, and in a limited number of cases may not have reached the Committee members. That has to improve. Still, virtually everyone got their notice by the day before, and that was plenty of time to make arrangements to be there. As a member of that broader touchy-feely version of “the Party,” I am insulted if you thought the beach, or the golf course, or even (only one of several) of your child’s soccer games were more important. If you don’t want to do your duty as an elected official, step down and help us find someone from your district who will. I don’t blame the handful of absent members who were too ill to travel Saturday, or even those who might have been put to substantial expense to change flight or travel plans to make the meeting. But there is no way more than a handful of the 174 absentees had excuses that valid.

And if your absence was occasioned by your dislike of Joe Reed, and you expressed that dislike by sitting at home, I am even more upset. If our Party is worth supporting, it is worth fighting to put it back on a winning trajectory. Other than myself, and Dr. Reed, very few of the people present on Saturday have personal memories of the fight for control of the SDEC in 1974. Ironically, the “bad guy” in that fight was Governor George Wallace, the father-in-law of Judge Kennedy. Wallace sought to detach the Alabama Democratic Party from the national Party, and perhaps capture the Democratic presidential line on the ballot instead of the national nominee in the 1976 presidential election, as he had done in
1968. He was opposed in that effort by Judge Robert S. Vance, Sr., father of our 2012 Chief Justice nominee and the then-incumbent Chair, and his “loyalist” (as in “loyal” to the national Party) caucus. As a young lawyer, Vance was active on the right side of the early civil rights movement. His tenure as Chair saw the Party doing the right things in terms of minority representation on the SDEC, and holding a monopoly on statewide elected offices. In short, he was the best Chair the SDEC has ever had. (Coincidentally, the 1974 fight was one of those many instances where Reed and I were in agreement.)

Judge Vance, Sr., did not win that fight against Wallace in 1974 by sitting home on his backside, or by idly deprecating Wallace over beers at the lake. He did it by recruiting loyalist candidates for the SDEC in the 1974 primary, and organizing and turning them out for the organizational meeting at Birmingham’s unlamented late Parliament House Hotel like a well-oiled machine. To those who say “there’s no point in fighting Reed, so I’m not driving to Montgomery to try,” I point you to Judge Vance’s example. Reed had almost all of his troops present Saturday, and still only produced 90-95 votes on the typical issue. There is every chance that he can be outvoted if 200 or more members (including the Reed group) grace us with their presence, and engage in the slightest degree of organization and planning. Futility is no more valid an excuse for your absence than one of a dozen soccer games in your child’s season.

Has Joe Reed, like a certain British monarch, tragically stayed too long in his post, to the detriment of the realm? That is a topic far beyond the scope of this blog post. I will tell both sides of that fight, that we cannot beat the Republicans without the votes Joe Reed and his supporters represent. Neither can we beat them if we cannot reach beyond those voters. What I can say here, is that if antipathy - or even just apathy - have reached the stage where only 38% of the SDEC can be bothered to attend a critical meeting, we are in trouble. If that does not change, the Democratic Party in Alabama will soon be no more relevant than it is in Wyoming or Utah. The Bylaws of the SDEC (warning: Saturday’s amendments are not yet reflected in this link) make provision for removal of those who skip three successive meetings without excuse. It
is my hope that we do not have to enforce that rule to save the Party. I leave those who were on the golf course or lakefront Saturday to consider these thoughts. For me and mine, we will continue to remember the words of our 2000 standard bearer, which I echoed with the crowd in Legislative Plaza in Nashville on Election Night 2000, and “stay and fight.”


On a sadder note, I would be remiss if I did not note one SDEC member who was absent Saturday, as she passed away in a Tuscaloosa hospital that day. Barbara Bobo served for decades on the SDEC, served several terms as Mayor of Millport, and was perhaps best known as the unbashful and opinionated publisher of The West Alabama Gazette. Her frequent appearances as a panelist on Alabama Public Television’s For the Record were never pleasant for Republican guests, and never to be missed.  Requiescat in pace, serva bona et fidelem.