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.

Who Is Watching the Watchdogs?

What a wonderful, hot, lazy August it’s been. It is almost a shame to ruin it by actually writing a post. So as not to give myself a heatstroke, I will serve up something I wrote earlier in the month, and just add a few lines of mis-en-scene so it makes sense.

Thomas Jefferson made a notable observation about the role of the newspaper in a democracy:

The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. -- Letter to Edward Carrington, 1787.

On August 6, The Montgomery Advertiser ran an editorial in which it attacked the Republicans for violating the so-called “ethics reforms” Bob Riley ran through with the new GOP Legislature as his parting gift to Alabama. Fair enough. But they succumbed to the journalistic weakness of being unable to condemn the murderer without heaping equal opprobrium on the jaywalker. In other words, they had to say some bad things about the Democrats. Which is fair enough, if what they said had been accurate. Not only was it inaccurate, but they only had to look to their own front pages of a few months earlier to see it was inaccurate.

Silly me, I thought if I shot a letter to their editor, pointing out this problem, they would print it, with perhaps an editorial note trying to defend the editorial. No chance. I guess the lesson here is that if you want to write the Advertiser, it’s best not to prove them so wrong that their fragile egos won’t let the truth see daylight.

One of the joys of blogging is that you are not dependent on the whim of a mendacious editorial board to have your say. Without further ado, here is the letter the Advertiser could not find a reason to print:

Dear Editor:

Your editorial, “PAC Debate Hypocritical,” of August 6, 2011, is correct to call out the Alabama Republican Party for violating the so-called ethics reforms they enacted in the waning days of the Riley Administration. However, to accuse the Alabama Democratic Party of “hypocrisy” because, in your words, “they killed PAC-to-PAC reform year after year when they controlled the Legislature,” is to make a plain misstatement of fact. It adopts and repeats a Republican lie that was used in several campaigns by that party.

Consider the fate of House Bill 85 in the 2010 (Democratic-controlled) Regular Session. This bill, sponsored by Democratic then-Representative Jeff McLaughlin of Guntersville, would have banned PAC-to-PAC transfers, period. As you reported in a story on January 24, 2010, quoting Democratic then-Senator Zeb Little, “the Democratic caucus supports a ‘true PAC-to-PAC ban,’ but there are always people, including business organizations and the political parties, that want exceptions.”

That is indeed what happened to House Bill 85. The Republican minority in the Senate filibustered, blocking that bill and other ethics reforms passed by the Democratic House, because Senate Democrats refused to carve out exceptions for “religious” and other groups that overwhelmingly support Republicans. The Democratic votes were there to pass it, but it died at the hands of GOP filibusters. The Republicans then ran an election campaign calling Democrats “anti-reform,” largely unchallenged by the fact-checking function of the news media. I ask you, in the future, not only to avoid sacrificing editorial accuracy in the name of balance, but to have the news pages more closely check to see that the Republicans’ deeds match their rhetoric.

I don’t want anyone to walk away from this post with the idea that we shouldn’t write letters to the editor - or even that we shouldn’t write them to the Advertiser. On the contrary, what this shows is that we need to write more of them. The Advertiser did not print a single letter (that I saw) taking issue with its misleading editorial. One reason for that may be that mine was the only one they received. The dynamics of editorial boards are such that it is difficult for them to ignore a large volume of letters calling the paper out on a given issue. Your letter might not be printed, but it might lead to a similar letter from another Democrat making the paper. The Advertiser is not, like some newspapers in this state, a hidebound rubber stamp of the Republican Party. It may be that they just need some encouragement to be more careful in the future. So by all means, make good use of the emailing links on the right of this page, and let your voice be heard!

What We’ve Got He-ah Is ... Failure to Communicate

No, the post’s title does not refer to the idyllic past to which the Alabama Republican Party wants to return the Department of Corrections, though I wouldn’t be surprised one bit if they would take it several steps in that direction if they could. Instead, I am thinking of another opportunity we Democrats have to move from our B Game to our A Game.

I am thinking rather of communications - and not the general concept of communications, which embraces everything from paid media to shoe-leather canvassing. I am thinking of “communications” in the sense it is usually used in the professional political world. In that sphere, the “communications” function is usually referring to the campaign’s or party’s point person for media relations. Of course, the state Party has for years had a communications director on board during election years, as have gubernatorial campaigns and other major campaigns. In both election and off years, the Party chairman and executive director have also undertaken part of this function, and the state Party has overall done a good job of it for some time.

Unfortunately, the state Party has to focus most of its attention on the major metropolitan dailies, the television news, the Associated Press, and to a lesser extent, the dailies in mid-sized cities like Anniston and Dothan. This leaves a big gap in an area where we Democrats have been getting our clock cleaned the last couple of cycles, and have to do a better job: smaller cities and rural counties outside the Black Belt. Across the Tennessee Valley, down the eastern and western borders of Alabama, and in a few pockets like Walker and Talladega Counties, these counties used to be part of our base. Now they are battlegrounds where we are barely holding our own. The immutable math of Alabama politics for the next decade looks a lot like this: we’re going to win the inner cities and the Black Belt. We’re going to lose in the white flight suburbs like Shelby, Baldwin, and Autauga Counties. If we’re going to regain legislative influence, and win statewide races, we have to regain ground in the mid-size and rural counties in the rest of the state. And a big part of that is going to be influencing the media atmosphere in those counties.

Now, I am not going to name names here. Or preach. But what I want to do is illustrate the sort of effort I have in mind. In trying to figure out how well local Parties have been getting the Democratic message into the news, I spent some time looking, with the help of Google and the search functions of several newspapers’ individual websites. I found a great article in The Demopolis Times, which ran during the 2008 Democratic National Convention.

The 2008 Democratic National Convention.

I don’t claim to have checked every non-metropolitan paper, and I won’t name the ones I did (as I am not finger pointing), but I was not able to find a story quoting a county Democratic chairperson in any non-metropolitan daily newspaper during the 2010 election cycle. (I spot-checked about 15 or 16 smaller dailies and larger weeklies.) Now, anyone is welcome to post a link in the comments, showing me one I missed - and I hope someone does. I want to recognize those local chairs who are doing a good job. But anything short of 100 links I somehow missed won’t change my conclusion: I should have found such a story in every paper I checked.

We are going to have to do a better job of presenting our case on the front pages of these non-metropolitan newspapers if we are going to overcome the Republican bias of Fox News and the Newhouse papers in Birmingham, Mobile and Huntsville. Fortunately, this is something that doesn’t take a significant amount of money, and really doesn’t consume that much time. It doesn’t take a county Democratic chair that long to say “The Republican Legislature has shown its true colors by refusing to take the sales tax off food.” - and that makes a great quote on page one.

Our new state chairman, Judge Mark Kennedy, has begun one thing I like. He has started releasing statements on a more regular basis than any of his predecessors, on a wide range of current issues. Not every one makes the lead story in the news, but some do. Do I expect county chairs to call their local papers daily? No, at least not until fall of 2012. But we can make some hay during the legislative session, and begin to posture ourselves for 2012 and beyond.

There are a few points to keep in mind in raising the local-media profile of your county Democratic Party:

• Cultivate a regular contact. You don’t want to avoid anyone on the small staff of a local paper, but, as a local Democratic leader, you probably have a good idea who is the most sympathetic - or at least the least unfair - member of the staff. Your talking point has a much better shot at page one if it goes through such a writer.
• Take the initiative. This is probably the most important point of all. Media folks are like the rest of us; they never have enough time for everything. This is even truer as media outlets reduce their staffs in the wake of the Bush Recession. If you wait for them to call you for a quote, the Democratic message will be unread in your county. Call your contact at least once a week during the legislative session, and every day during the general election campaign. Even if you don’t have a point to push (and you should), they may have a political story they’re working on, and that would give you the perfect chance to work the Democratic position into the story. Be ready with something worth saying, and the Democratic message will be read in your county.
• Be confident. I know some people, even Party leaders, who don’t feel comfortable in the limelight. First and foremost, I promise you, no local Democratic chair is going to face a lectern like the one in this photo. Raising the Party’s media image is a matter of a phone chat, or talk over coffee, with a local reporter whom you already know well. If you absolutely, positively don’t feel comfortable doing this sort of thing, designate a vice chair or other person as your local communications director. Just keep in mind, at the local level, it is the chair the local media wants to quote.
• Coordinate the message for repetition. I am hoping that one of the things Judge Kennedy will be able to do is establish some sort of message tree - based on email or text - out of the Party office in Montgomery. Ideally, this would send out “today’s talking point” on one issue or another. Repetition increases the effect of any message. If a voter hears our Supreme Court nominee say something on WSFA or reads Judge Kennedy’s comment in The Montgomery Advertiser, then reads the same point made by a local chair when turning to The Alexander City Outlook or The Troy Messenger for their local news, it’s a lot more apt to stick.
• Tie in to the lead news story. This point is closely related to the previous one; it is likely that any coordinated effort will be closely linked to the lead story in that day’s news. But even in the absence of a lead from the state, a local leader should be alert for local opportunities. A perfect example is the story linked above from The Demopolis Times. If you look at it, you will note that it is essentially an Associated Press story, re-written by a local writer with a few localized quotes from Chairman Coplin. (If you closely read your local paper, you will see that is a common writer’s way of getting a long story with little work.) A story about the Democratic Convention that probably wouldn’t have made the local paper got in, because of what I suspect was good work by the Marengo County Party to make it happen.
• Don’t forget local radio. This is a tricky one. A lot of smaller cities now have local news/talk radio outlets, and some of them actually have fair Arbitron ratings. On the other hand, this is a medium that the loony right has claimed as its own, and the demographics of that listener base may make it unworthy of a big investment of time. The important thing to avoid is giving them the chance to say “the Democrats wouldn’t come on the air with us.” On the other hand, if the issue is one where that audience might be receptive - the GOP refusal to rescind the legislative pay raise they ran against comes to mind - it might be worth calling in, or making yourself available in the studio.

In his play The Critic, British poet and Member of Parliament Richard Brinsley Sheridan had one of his characters say, “The newspapers! Sir, they are the most villainous, licentious, abominable, infernal— Not that I ever read them! No, I make it a rule never to look into a newspaper.” As Democrats, we often feel this way about our local papers. A big part of putting our Party back in its historic position of leadership is doing our part to turn that image of the media around - or, more precisely, turning around our image in that media.

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.