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.

Ex Cineribus Non Resurgit - Parker Griffith Tries Again in Alabama’s Fifth District

Friday the 13th has long been noted for scary and unusual happenings. I am not sure how scary they all were, but several eleventh-hour filings (on Friday the 13th) to run in this March’s primaries were certainly surprises. I have already noted some of those in the Sixth Congressional District GOP primary. In this post, I want to gaze north to the Tennessee Valley at the Alabama Fifth District.

Two years ago, party switcher Parker Griffith lost the Republican primary in this district to perennial candidate, then-Madison County Commissioner Mo Brooks, by a resounding 50.8%-33.4% margin, with Herman Cain wannabe Les Phillip getting 15.8%. As I have noted frequently happens to party switchers.

With that kind of walloping, one would have presumed Dr. Griffith would have headed off to Florida, or at least to K Street, and stayed there. But on Friday, he caught everyone off guard by filing to run for his former seat in the GOP primary. Against the same incumbent who beat him by 17.4% less than two years ago.

I am not sure what the overall statistics are for defeated members of Congress attempting to regain their seats, but at least one early scholar of the scenario noted that, “One would tend to assume that a candidate, defeated for Congress in a regular election, would under ordinary circumstances be subject to similar results in running against the same opponent two years later,” and found that the data bore out his supposition.

The specific facts on the ground here do not indicate that we should expect Griffith to come any closer in this primary than he did in the 2010 round. Of course, Brooks has had the last year to work the GOP rubber chicken circuit as an incumbent Congressman. At least in Madison County, he has been known as a Republican activist for nearly 30 years, a fact which helped him defeat Griffith in 2010.

Geography also works against Griffith. In the 2011 GOP-run reapportionment, the Fifth District was stripped of both predominantly Democratic Colbert County, and parts of Lawrence, in an effort to protect Brooks from a Democratic challenge this year. In the 2010 primary, Colbert gave Griffith a 1,947-673 margin over Brooks. Griffith’s 66.5% in Colbert was his best showing in any county in the district. The removal of Colbert was compensated by some population gain in Madison County, and by the addition of that part of Morgan County not previously in the district. In the part of Morgan County that was in the Fifth in 2010, Brooks beat Griffith by a 48.2%-36.6% margin. Because the overall geographic pattern was that Brooks did better in the central part of the district, it’s probably safe to presume the newly-added part of Morgan County would have voted in a similar fashion - and will this time.

Griffith is a retired physician, and has substantial business interests. He has the ability to self-finance to a fair extent, if he’s willing to write the large checks. He reported giving his own campaign $180,000.00, and personally guaranteeing loans to his campaign of an additional $250,000.00, in the 2010 primary. He’s going to need to write himself a much larger check than that this time. His current campaign reports the princely sum of $316.00 cash on hand. No, I didn’t mess up the decimal point. In 2010, Griffith’s pre-primary report showed total contributions of $2,856,969.83, and would need to spend a very large fraction of that this time to challenge an incumbent. But that total was raised not only by an incumbent Congressman, but an incumbent who was aided by a major fundraising visit from now-Speaker John Boehner. I am not looking for either that visit, or that total from contributors, to happen again. Brooks, by comparison, reported $339,965.76 cash on hand at the end of the third quarter in 2011, and presumably was dialing for dollars in the fourth quarter, and is even more diligently doing so now.

Unlike the ethically-challenged Spencer Bachus in the Sixth District, Brooks has done nothing in his half-term in the House that would hurt him politically - at least not in a Republican primary. True, he stated that “I will do anything short of shooting” illegal immigrants; until HB-56 passed, that was Alabama’s best-noted echo of Bull Connor in 2011. He also was forced to withdraw from the record, after a point of order was made, his remark referring to “socialist” Democratic members of Congress. Brooks’s political style has always consisted of sloganeering and bomb throwing. While these remarks are embarrassing to Alabama, are definitely counterproductive to business recruitment, and certainly don’t accumulate Huntsville any brownie points for future budget fights over Redstone Arsenal operations, they are the exact sort of thing the dim lights, bigoted souls, and fossilized minds of the Republican primary electorate love to hear. Don’t look for them to create any problems for Brooks in the primary.

A small corrective is needed for the media-anointed “experts” who have tried to talk up Griffith’s chances a notch, on the rationale that he will not be subjected to the imaginary tidal wave of angry Democrats who supposedly crossed over to vote for Brooks in 2010. While someone may have anecdotal evidence of a few incensed individuals who did so, it simply didn’t happen in statistically significant numbers. There was a quite active Democratic primary that day throughout the district for both the gubernatorial nomination, and the Congressional nomination to oppose Brooks. Most counties in the district also had local Democratic primaries for courthouse offices. None of these Democratic primaries were noted for depressed turnout. As a final nail in this idea’s coffin, Griffith actually did his best in the three most Democratic counties in the district in the 2010 primary; Lauderdale (60.9%), Colbert (66.5%) and Jackson (55.9%).

In my previous post on the Sixth District, I noted that the Democratic Party would benefit from the coming knife fight in the GOP primary in that district. This race promises to add to that effect in the northernmost counties of Alabama. These two guys really, really don’t like each other, and both will probably have enough money to go negative. Whatever remote chance Griffith has depends on it. How Griffith can effectively go negative is an interesting question. You can’t outflank Brooks on the right. Griffith’s best strategy will be to argue that you can be firmly conservative without rendering yourself an ineffective member of Congress by keeping your flamethrower on the highest setting all the time. This line of attack will hurt not only Brooks, but also other Tea Party pods in the Huntsville/Decatur and Florence media markets. Griffith, for his part, remains popular with a certain part of Huntsville’s elite Twickenham community, normally a reliable GOP bloc. Attacking him may cost Brooks some support there.

Among other early Christian writers, Saint Isidore of Seville wrote of the mythical Phoenix in his Etymologiarum sive Originum, that “de cineribus suis resurgit.” (L. XII, 22). Many of these writers likened the Phoenix, rising from its own ashes, to the resurrected Christ. While Griffith definitely crashed and burned in 2010, don’t look for him to rise from his own ashes this year. Who knows, maybe the good Doctor’s expectations will be reasonable enough this time, that he can make it to his own election watch party to deliver a concession speech.