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.

Two Write[-in]s Make One Wrong

They’re skeered.

The Republicans are skeered. They think Sparks is winning.

How, pray tell, do I know this?

If you want to know how someone (or some group of someones) feels, pay attention to what is coming out of his, her, or their mouth(s).

In the case of the Alabama Republican Party, the mouth would be the Mobile Press-Register, or one of the other Newhouse publications.

On page one of today’s edition, they have a story about a poll showing Bentley’s (alleged) poll lead over Sparks collapsing. But more indicative of GOP worry is another story, about a “grass roots” movement to get voters to write in some other candidate, rather than Sparks or Bentley. As the article states:

Calls for write-ins have come from across the political spectrum and throughout the state in recent days. Websites, including Face book [sic] and Twitter, have sprouted Alabama write-in pages, while [Birmingham talk radio persona Leland] Whaley and Jennifer Foster, a columnist for the Opelika-Auburn News, have suggested the write-in option to their listeners and readers, respectively.

Not content with the news story, the Press-Register has pushed the idea on its editorial page, as evidenced by today’s Sunday editorial cartoon, seen to the left.

And as if the print emphasis wasn’t enough, the Altman article is (as of 2:30 p.m. Sunday) the top-billed story on al.com’s state news home page. A screen cap of this posting is seen below. This, perhaps more than anything, shows the priority the Newhouse organization has given this story line. The story is at the top of the queue, despite having a timestamp in its dateline of 9:01 a.m. Normally, news stories on this page are time-sorted, with the most recent story appearing first. Advance Internet (the Newhouse online presence) maintains the option of “promoting” a story so that it remains in “first” place, so as to have more visibility. Normally, this is only done with stories of major breaking news import, such as an alien spacecraft landing in Selma, or an Alabama or Auburn third-string lineman spraining an ankle in practice. Or a story that Newhouse wants to push for political reasons. It takes a conscious editorial decision, presumably at an upper-level editorial or managerial desk, to do this. The write-in “story” didn’t land there by mistake. (I am thankful now for the practice I got in university, learning to read between the lines like this from deconstructing Правда.)

The Birmingham News has gotten into the promotion in a smaller way. Today’s column by John Archibald mentions write-ins, but in an allegedly humorous vein - offering up Cam Newton and others. But the News has pitched in by printing “grassroots” letters to the editor urging a write-in, such as this one.

What is the purpose of this push? For that, I turn to Marcus Tullius Cicero, the Roman orator and statesman, who made one phrase the centerpiece of his forensics in murder trials: cui bono? (Who benefits?) Looking at the push, and its internal emphases, this isn’t hard to figure out. The two names most often mentioned as “acceptable” write-ins are those in the Press-Register cartoon: Bradley Byrne and Artur Davis. Byrne has disavowed the entire scheme. (Davis is presumably still too busy pouting over his canceled anointment to do so.) The real operative fact here is that Byrne’s base was among Republican apparatchiks. However disappointed they may be that the chosen insider didn’t get the nomination, they are not going to desert their party. (Not to mention, they are betting the BCA money pumped into Bentley will keep him on the GOP reservation should he prevail.)

Sparks has solid support from the Party base, in basically every region of Alabama, and those voters are not susceptible to the write-in concept. On the other hand, there continue to be those who cannot believe St. Artur ascended into Heaven without being nominated. Others, not quite so blinded, got enough Davis Kool-Aid during the primary campaign to be worrisome. (Notice whose photo is included above the fold in the al.com screencap.) In those quarters, there might be a few hundred votes statewide who could be led into burnishing their self-images as “enlightened reformers” by writing in Davis. Simply put, any real benefit of this trend, while small, is going to Bentley.

Another ironic aspect that reveals the motive of this effort is its content, and the proffered excuse for not voting for Bentley. It’s because Bentley is claimed to be the hand-picked candidate of Dr. Paul Hubbert and AEA. And, as any good Christian reader of The Birmingham News knows, Dr. Hubbert is the Antichrist, for proposing “liberal” ideas like the proper funding of public education. Of course, any honest halfwit knows that Dr. Hubbert’s only love for Bentley arose from the fact his name isn’t “Bradley Byrne.” Never mind reality, the Hubbert-Bentley shtick allows the GOP to repeat its theme of “AEA BAD, GOP GOOD” where it will (they hope) do them some real good - in legislative races. You notice they don’t point to any of the real reasons for voting against Bentley: That he seems a little dense for someone who supposedly passed the USMLE. That he seems to have a problem coming up with plausible deniability on a number of issues. That he has gone on the payroll of the Business Council of Alabama, and is thus controlled by out-of-state corporate interests. That he criticizes Sparks’s lottery plan, while offering no ideas on his own to improve education and economic development. That he looks like Mr. Burns from The Simpsons.

So, how do we counter it? For starters, I am not sure the game is worth the candle. There are a couple of hundred scattered wine-and-cheese types who will fall for it, but I am not sure all of them planned to vote for Sparks in the first place. We may do better by merely using the obvious bias inherent in this coverage to shame those media outlets that are pushing the line. Even the most biased media feel compelled to quote a campaign or party spokesperson’s comment in such a story, so if that quote begins “Your paper’s bias is apparent because _____,” the story may well be stillborn. Or we can ju-jitsu this by pointing out the truth - they’re doing it because they’re skeered. They are losing ground fast, and they know it.

On the other hand, if we want to raise a little write-in mischief on our own, there are avenues to pursue. Voting blocs that will peel off Bentley. I’m just sayin’.

BREAKING DEVELOPMENT

At about 6:00 p.m. tonight, when I checked back, the al.com story had been “demoted” to its place in the chronological queue. Can we say “busted”?

Fair and Balanced? I’ll Take My Odds in the Bingo Hall Anytime.

Since its inception, the Fox News Network has promoted itself with the Orwellian phrase, “Fair and Balanced,” while being so far from either as to defy credulity. However bad Faux News is, it is at least kept in check by any number of other voices in the media. In Alabama, we are less fortunate, as media ownership is far more concentrated, especially in the print realm. The three newspapers owned by the Newhouse family - The Birmingham News, the Mobile Press-Register, and The Huntsville Times - are not only the three largest newspapers in Alabama; their combined circulation exceeds that of the other twenty-one daily newspapers in Alabama combined. When a media group with that much market power all gets on the same page of the editorial hymnbook, there’s not only temptation for questionable journalistic calls; there is a real danger of the political process becoming skewered in the direction of the dominant media source.

Once upon a time, if The Birmingham News got out of line, the Birmingham Post-Herald was there to offer a contrary perspective. Likewise with The Huntsville News, and the historically Democratic Decatur Daily used to circulate more widely in Huntsville. (Things were less helpful in Mobile, where the Mobile Press and Mobile Register were co-owned by Newhouse even before their 1997 consolidation.) Even in the absence of alternate news sources from the Internet, these correctives kept a significant number of voters aware of alternate perspectives and narratives. But we now live in the age of the one-newspaper town.

This dominant position by one news source has had a serious impact on the events of the last week, and on Alabama politics of the last decade in particular. The coverage of the current indictment of legislators and gaming-industry lobbyists and executives has overlooked one critical point. If not for the efforts of Republican Governor Bob Riley, and those of the GOP Legislative leadership in his hip pocket, there would have been no need for the gaming industry to go all-out in an effort to secure something as simple as the people’s right to vote on the issue. There is certainly reason to believe that Riley has been the beneficiary of millions of dollars of bribes, er, contributions, from out of state gambling interests, most notably the operators of Mississippi Choctaw casinos. This, of course, would give Riley all the incentive he needs to repay his political (and maybe financial) debts to the Choctaw casinos. The first leak of links between Riley and out-of-state gambling interests came in Congressional hearings in 2005, in which sworn testimony was given before a Congressional committee that the Choctaw had pumped $13,000,000 into Alabama to buy Bob Riley a house on South Perry Street.

This year, as Bush-appointed, and Obama-not-yet-fired U.S. Attorney Leura Canary continued her partisan witch hunt of Democrats, Bill Johnson, a former Riley cabinet member who was running for governor, asked to testify to the same grand jury that eventually produced last week’s indictment. He wanted to testify about the other side of the coin: Riley’s receipt of that Choctaw money. Johnson’s letter to Canary was specific enough to make any non-corrupt prosecutor drool:

Bill Johnson Canary Letter

Canary - whose husband managed Riley’s campaigns - refused to allow the grand jury to hear Johnson. In a normal world - say, New York or Minnesota or California - such an accusation about a sitting governor would set off a media feeding frenzy. (And did in Alabama, when that governor’s name was “Siegelman” and he had a “D” before his name.) But Alabama eschews normalcy. In order to determine how one-sided the coverage of gambling influence has been among the three Newhouse newspapers, I did a quantitative analysis. Beginning on the date of this post, I went back two years, in each of the three Newhouse outlets. I did a count of the number of stories that contained the words “Riley” and “Choctaw” in the same paragraph; and of those that contained the words “Democrat,” “Democrats,” or “Democratic” within the same paragraph as any of the words “investigate,” “investigation,” “indict,” “indicted,” or “indictment.” I performed the search on a library LEXIS account, as LEXIS allows root-expansion and proximity-restriction search parameters that are not available on Google, or the Newhouse internal search engine. The results pretty much speak for themselves:

Newspaper	“Riley” in same paragraph as “Choctaw”*	“Democrat/s/ic” in same paragraph as “indict/ed/ment” or “investigat-/e/ion”
	12	135
	7	719
	4	174

I may have to apologize to Fox News. Even they aren’t that one-sided in their coverage. I should point out that many of the handful of Riley-Choctaw hits were in letters to the editor or online comment hits - not on more widely-read front page stories, as most of the Democratic hits were. The Mobile Press-Register has not mentioned the Riley-Choctaw connection since April 10, 2010, even in any published letter to the editor. From the perspective of a political professional, this sort of coverage is nonexistent. A thorough reader of The Birmingham News is going to see one Riley-Choctaw reference every other month. That kind of repetition is not going to move voters away from Riley and the Republicans.

The implications for this kind of lopsided, biased emphasis are obvious. It’s not surprising that many Alabamians - who don’t have the time to dig for the truth - think the Democratic Party is corrupt, and the Republicans, including Bob Riley, are reformers riding white horses up Dexter Avenue to clean the State House of wickedness. Take the modest example of the front page of last Tuesday’s Press-Register, shown on the left. You will note it even has a story showing Bob Riley trumpeting his moral disgust at the evils of gambling. He should know. As Democrats, we don’t have the Choctaw money, and when we try to exercise our First Amendment rights to receive contributions from the other side of that fight, it’s a “bribe” and everyone gets indicted. All I can counsel for now is to stay mad, and do what we can to get even. One way to vent some steam this weekend would be to write letters to the editors of Alabama newspapers (even the Newhouse ones!) demanding to know why there isn’t more investigation - and coverage - of the Riley-Choctaw connection. The IT folks at the Alabama Democratic Party have put up a useful page here, which allows you to email your letters to the editor. Just remember to take an extra moment, to email each paper its own copy of a letter. Editors will deep-six a letter with a string of addresses of other papers. Knock on doors, and talk about Riley and Choctaws at every opportunity - canvassing, in the coffee shop, over the church lunch, wherever. A little paid TV about Johnson’s spurned testimony might not hurt, either. The TV newscasts might be embarrassed enough to cover it if ads during their programs keep mentioning it. In the long run, there is always the free market. I have always wondered why, if The Cullman Times can at least break even with 10,363 weekday readers, a daily in Birmingham couldn’t. It can’t cost that much to cover the Courthouse, City Hall, wrecks and murders, and keep one good reporter in Montgomery. And if a Birmingham paper (with a semi-decent web presence) scooped the News on a Riley corruption story, or something similar, the circulation gap would close quickly. If that doesn’t work, there are other solutions to market dominance available.

Before anyone posts a comment, yes, I know that we live in an online age, and a thousand journalistic flowers bloom online. But the fact remains, most Alabamians get their news from print or broadcast. And even those who do venture online tend to get their state and local news from al.com, the online presence of the Newhouse newspapers. The better “inside baseball” sources like Doc’s Political Parlor and Home of Lawn Mower Repair, and the tenacious Democratic/progressive sites like Legal Schnauzer and the Locust Fork News, just don’t have the page views that the mass media sites do. (Not that this blog does, either, but I’m not writing for a mass audience.)

* I do want to note that the numbers for “Riley”-“Choctaw” are less than the raw number of hits. However, I omitted those stories (about half the raw hits) that made the list by containing a reference to Choctaw County, Alabama, not the Indian tribe peddling influence in Alabama.