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

If you read al.com 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 al.com, 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 al.com 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.

05-22-2013 Order on Sanctions Against Chiropractic Care by PubliusIX

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.

01-22-2013 Order Compelling Chiropractic Care to Answer Interrogs by PubliusIX

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.

07-31-2013 Order for Writ of Arrest by PubliusIX

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.

Alabama's 5th District - The Home of the Blues Should Be Painted That Color

In Florence, Alabama, there sits a log cabin, the birthplace and childhood home of William Christopher ("W.C.") Handy, known as the Father of the Blues; today, it serves as a museum and monument. Florence sits in Alabama's 5th Congressional District, which has been a focus of national attention since the soon departed, and never regretted, Congressman Parker Griffith switched to the Republican Party in a "Christmas Surprise" in December 2009. Griffith was bounced by his new party in the June primary, and the general election contest will be between Democrat Steve Raby and Madison County Republican Commissioner Mo Brooks. And now, the 5th District is being subjected to another round of - are we ready? The CONVENTIONAL WISDOM.

If you're like me, after a few decades of working in Alabama Democratic affairs, the phrase "conventional wisdom" engenders a reflexive flinch. Because by now, we know what the Conventional Wisdom is going to be. "The district is white-majority, it's in Alabama. A Democrat can't win it." As George and Ira Gershwin, so clearly influenced by Handy, wrote, "It Ain't Necessarily So." In the case of what is today the 5th District, the last time a Republican won a general election to this seat as such, that Republican was John Benton Callis, and most of the votes were counted by his recent comrades in blue uniforms. (After his one term in Congress, Callis moved back to Wisconsin.)

True to form, inside the Beltway, this district is being referred to as some sort of likely Republican hold. CQ/Roll Call refers to the district as "Leans Republican." What did CQ/Roll Call have to say about the Democratic primary?

The apparent Democratic frontrunner is former Alabama Board of Education member Taze Shepard, an attorney who is the grandson of the late Sen. John Sparkman (D).

That would be the same Taze Shepard who got an impressive 22.7% of the vote, to Raby's 61.7%, in the primary. (I'm not sure to whom CQ/Roll Call was talking. It wasn't me.) The New York Times gives them one-up, calling the seat "Solid Republican." (The Washington Post's politics page simply refers to the seat as "open," without offering a forecast at this time. Interestingly, they do the same thing with the black-majority 7th District, which has exactly zero chance of going Republican. It's interesting how such "labels" make a Republican takeover appear more likely ...) Let's see if we can't help CQ/Roll Call and these other folks get a better handle on the reality on the ground in the 5th.

The numbers. I understand that an understaffed editorial office in Washington has trouble keeping track of 435 Congressional districts, while at the same time trying to follow 100 Senate seats, 50 governorships, the White House, and the occasional embryonic Presidential campaign. But ignoring 140 years of voting history, and important voting metrics, is hard to justify. Part of the problem is faulty methodology. Especially when an incumbent is not in the mix, most of these sources take time to look at one metric, the district's Presidential vote. This in itself is unwise. 83 House districts are currently held by members whose party failed to carry their district in the 2008 Presidential election. A disproportionate number of those 83 members of Congress are Southern Democrats, reflecting a longstanding Southern history of states and districts splitting their ballots, voting Republican in the Presidential election, but Democratic in Congressional and local races.

Slavish devotion to the "Presidential metric" presupposes that someone who votes for one party for President will follow that party down the ballot. While there is strong and well-accepted empirical evidence of a correlation, that does not always hold, especially in non-Presidential years. In the case of the 5th District, a look at downballot voting patterns reveals that it is fundamentally a Democratic district, which happens to vote Republican in most Presidential elections. (And a passing note, the "Southern" Democratic tickets headed by Clinton and Gore from 1992-2000 carried many of the counties in this district.)

If you want to know how folks vote in the 5th District for Representative, you will get a better view if you look to see how they vote for Representative. State Representative in 2006, that is.

District	Party	Candidate	TOTAL IN 5TH CD
State House 01	DEM	Irons	8,410
State House 02	DEM	Curtis	7,704
State House 03	DEM	Black	9,585
State House 04	DEM	Mitchell	5,988
State House 05	DEM	White	7,071
State House 06	DEM	Schmitz†	7,202
State House 07	DEM	Letson	7,680
State House 08	DEM	Dukes	7,833
State House 09	DEM	Grantland	6,349
State House 18	DEM	Morrow	2,357
State House 19	DEM	Hall, A.*	10,449
State House 21	DEM	Hinshaw	6,063
State House 22	DEM	Hall, L.	6,100
State House 23	DEM	Robinson	7,969
			100,760
TOTAL % D IN 5TH CD		13 Seats	59.0%
State House 01	REP	Smith	4,511
State House 02	REP	Pettus	4,115
State House 04	REP	Hammon	8,097
State House 05	REP	Coffman	5,277
State House 06	REP	Stiles	3,960
State House 07	REP	Robinson	2,475
State House 09	REP	Stone	4,895
State House 10	REP	Ball	9,041
State House 20	REP	Sanderford	13,859
State House 21	REP	Wiggins	3,861
State House 25	REP	McCutcheon	9,983
			70,074
TOTAL % R IN 5TH CD		4 Seats	41.0%

* Currently held by Taylor (D) after 2007 special.
† Currently held by Williams (R) after 2009 special.

While the Republicans have taken one seat since the election in which this chart was compiled, that takeaway happened in a special, making it a poor model for altering observations from a cycle more like the one in progress, than like a low-turnout special.

Another metric one might prefer to the Presidential vote, in predicting a Congressional vote is ... the Congressional vote. Let's look at this district since Bud Cramer's first election in 1990, with a couple of points in mind:

* No Republican nominee

First, is the pure and simple fact that this district has a solid Democratic voting record in Congressional races - an average of 69.5% over nearly two decades! This is even better than the Democratic totals in state legislative races, and remains so even if Cramer's unopposed 2006 re-election is factored out. It's painful to watch knowledgeable people rate such a Democratic district as Republican-leaning.

But a more subtle, and perhaps more important phenomenon revealed by the above chart is the distinction between the Democratic performance in the 5th in presidential and gubernatorial election years. The Democratic nominee in this district gets a boost in gubernatorial years of an average of 4.6%, an effect that is understated by the inclusion of the 1994 gubernatorial cycle in this calculation. (The national Democratic Congressional vote hit record lows that year, a fact that was reflected in the 5th.) So, even if you make a presumption that the 52%-48% Democratic majority from 2008 is some sort of more "current" norm than the modern historical average, that baseline should look more like 56% or 57% Democratic in 2010. Suffice it to say, if you want to find an "objective number" that makes this district look Republican, you have to go looking for the Presidential totals.

A passing word is in order about that 48% GOP showing in 2008. Not only did it take place in a presidential year (remember, that means a ~4.6% GOP swing), that swing was exaggerated by the racial polarization against Obama at the top of the ticket. Statewide exit polling data indicate that Obama got about 10% of the white vote in Alabama, and that was acutely felt in the 5th. Another factor to consider is that the 2008 general election campaign brought out serious dirt on then-Democrat Griffith, including allegations that he had deliberately low-dosed cancer patients to prolong their chemo regimens, to make more money. (Griffith was an oncologist before entering politics.) This charge was the subject of a 3,000+ GRP media buy by the RCCC, and doubtless cost Griffith several points. No one has ever whispered that sort of dirt about Raby. In fact, Taze Shepard, his primary opponent, made a strong effort to go negative on Raby in the primary. The best dirt he could find - and he made it the subject of a TV buy of at least 1,500 GRP, maybe more - was an accusation that Raby - horror! - donated to Republicans! Now, the truth was and is, Raby did so for his lobbying clients, who also need GOP votes on the Hill. But the only real effect of this media blitz was to immunize Raby from any accusation by Brooks that he's a liberal party hack. I am sure Shepard's thank-you card from Raby is in the mail.

The candidates. Raby. The Democratic nominee is Huntsville lobbyist and consultant Steve Raby. This is Raby's first venture on the ballot in his own name, but he is no stranger to the game. He served for years as a top aide to the late Senator Howell Heflin, and doubtless learnt a thing or two from "The Judge" about winning Alabama elections. Most of Raby's business is centered on the sprawling Army/NASA complex at Redstone Arsenal, and among its large contracting community.

This boosts Raby in two ways. First, his clear ties to the defense industry immunize him from the inevitable canned ads calling him a "Pelosi Liberal." Secondly, it gives him a superior entree to the substantial contributions those contractors always bestow. Both Raby's fundraising savvy, and the belief of those local contractors that Raby is the favorite, are evidenced by the fact that Raby was one of only four Democratic challengers nationally to outraise a Republican incumbent in the first quarter. (This is especially impressive if you consider the RCCC/leadership largess that was being lavished on Griffith in an effort to save his seat.) Raby grew up in cotton farming country outside Huntsville, and despite his time in D.C. and around Huntsville's rocket scientists, he retains a folksy manner and direct speech that go over well in the rural areas on the district's eastern and western ends. Raby is a multi-generational native of the district, and in the parts of this district that aren't NASA-dominated, that is an important consideration. From his long career with Heflin, Raby can tell you anecdotes at the drop of a hat, about places in the district with names like Town Creek, Center Star, Skyline Mountain and Capshaw, that would leave Brooks fumbling over his map and note cards.

Brooks. The Republicans have fielded Mo Brooks, who at first looks to have a modestly successful political record. However, at closer look, his several elections to the Alabama House, and to the Madison County Commission, have all been in districts that were carefully drawn to be safe Republican districts. More precisely, districts drawn to suck as many Republican votes as possible out of swing districts. His wins in contested primaries there show little more than his acceptability to reliable Republican voters. The one time Brooks has been on a countywide general election ballot in Madison County, after he was appointed district attorney by then-Governor Guy Hunt, he lost badly to Democrat Tim Morgan, 54%-46% - and Madison County is historically the strongest Republican region in the district. Before his win over Griffith, the last time Brooks was on the GOP primary ballot across the district was for his unsuccessful 2006 run for the Republican nomination for Lieutenant Governor. Despite the fact he was the "local" candidate (his two opponents were from 90 and 180 miles away), the "Friends and Neighbors" vote only got Brooks 49% of the vote in the counties in the 5th District. (That such a lukewarm primary candidate could trounce Griffith so badly in the GOP primary should be an object lesson for any would-be party switchers, anywhere.)

Brooks is no Ronald Reagan behind the lectern, but he does reliably, if dryly, recite the mandatory GOP line about abortion, guns, and taxes. However, in a district where the largest employer by far is the Federal government, there is a lot of sentiment for not cutting taxes too far. More problematic for Brooks is his somewhat offputting affect, which may have explained his 2006 showing. Like many alumni of Duke - of which Brooks is one - he leaves you with the distinct impression that he wants you to know that, as much better than your school as Duke is, he could have gotten in someplace even more selective had he wanted. (I already know from whom I will get the hate mail on that one.) If Brooks is to have a chance to win, he will have to make substantial inroads in - or carry - the bedrock Democratic counties on the eastern and western ends of the district. In the blue-collar towns and farmlands of those counties, aloof doesn't sell well.

Other factors. Of course, the national media line is that this is going to be a bad, bad year for Democrats. To be sure, there is some truth to that, even if the repetition of the mantra is not always borne out by facts in the real world. Special election wins by Democrats in places like the Pennsylvania 12th this year, and New York 23rd last December, keep stepping on that story line. Of course national trends will be felt here, but the terrain on which they will play out - as shown above - is much more Democratic than thought inside the Beltway.

An interesting piece caught my eye in The New York Times last week, and I instantly thought of the 5th. Citing some fairly solid statistical evidence, it stated that the anti-incumbent-President effect is less in districts where the economy is doing better, and more in places it is worse. It posited that many of the battleground districts (among which it isn't yet counting the 5th) are faring better economically than the nation as a whole, which may result in unexpected good news for Democrats in November. Add the 5th to those economic high-performers. The 2005 Defense Base Re-Alignment and Closure (BRAC) process resulted in a net inflow into Redstone Arsenal of 4,700 jobs, not counting the associated jobs with outside contractors and suppliers, families, and the "multiplier effect." Huntsville even had to open a special website for workers moving in. Those newly-employed people are only arriving in numbers this year, and local business is feeling the benefits. Houses are being built, restaurants are opening and hiring, and schools are hiring teachers. The unemployment rate in Madison County was only 7.5% and dropping in May, well below the state average of 10.5%. When Brooks tries to work the local meat-and-three cafe with talk of the bad economy, he's apt to be greeted with the excuse that his listener has to be on time to her new job.

One other factor that I have talked about elsewhere is the top of the Democratic ticket. Raby took two wins on primary day - his race and the gubernatorial primary. He will not be dealing with the prospect of Artur Davis polarizing the electorate along racial lines (see, Obama, 10%, supra), and the head of his ticket will be Ag Commissioner Ron Sparks - whose Fort Payne home is a mere 15 miles outside the district. The Tennessee Valley has not had a native son in the Governor's Mansion since 1971, and Sparks's nomination is apt to have a lot of the Democratic base here excited. This should have an especially strong turnout impact in Jackson County, the Democratic stronghold that adjoins Sparks's native DeKalb. (The GOP gubernatorial nominee will be from either 130 miles (Bentley) or 360 miles (Byrne) away from Huntsville.) As I have noted elsewhere, solid empirical evidence has demonstrated that the "Friends and Neighbors" vote first identified by V.O. Key continues to have effects in the South, even on candidates downballot from the "neighbor." These anecdotal factors indicate that the historical 4.6% gubernatorial-year Democratic boost in this district should be even greater, given this lineup.

Gambling, as everyone in Alabama has been told by now, is a uniquely Democratic Party sin. Pray that you can resist its temptation. But if you must yield, whatever you do, don't bet on the Alabama 5th going Republican this November.