IN THE CIRCUIT COURT

OF LEE COUNTY, ALABAMA

STATE OF ALABAMA )

)

)

)

v. ) CASE NO. CC-2014-000565

)

)

MICHAEL GREGORY HUBBARD, )

)

Defendant. )

STATES RESPONSE TO HUBBARDS MOTION TO DISMISS

CHALLENGING THE CONSTITUTIONALITY OF

THE ALABAMA ETHICS ACT

ELECTRONICALLY FILED9/21/2015 4:40 PM

43-CC-2014-000565.00CIRCUIT COURT OF

LEE COUNTY, ALABAMAMARY B. ROBERSON, CLERK

DOCUMENT 369

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TABLE OF CONTENTS

INTRODUCTION ............................................................................................................... 1

BACKGROUND FACTS ................................................................................................... 3

ARGUMENT ...................................................................................................................... 7

I. Hubbards Legal Challenges to the Ethics Act Fail. ............................................................... 7

A. The Alabama Ethics Act is not unconstitutionally vague because it clearly gives

notice of the conduct that is prohibited. ........................................................................... 7

B. The Rule of Lenity Does Not Apply Here. .................................................................... 10

C. The Ethics Act Is Not Overbroad. .................................................................................. 12

II. Hubbards Challenges to Counts I-IV of the Indictment Fail Because the Ethics Act Can and Should Be Applied to State Party Chairs and Vice Chairs to Prevent Them

From Converting Money Given to Support Political Parties and/or Campaigns to

their Own Personal Benefit. .................................................................................................. 16

III. Hubbards Arguments Related to Counts 5-23 of the Indictment are Improper Pretrial Sufficiency-of-the-Evidence Challenges or Arguments Concerning Mixed

Questions of Fact and Law. Either Way, These Issues Are Properly Determined, If at

All, at Trial by a Jury. ............................................................................................................ 21

A. Counts 5 and 6 charging Hubbard with voting for legislation that would have

resulted in his client APCI being the sole PBM for Medicaid in Alabama, a clear

conflict of interest, and with receiving $5,000 per month from APCI are legally

sufficient. ....................................................................................................................... 24

i. Although it is ultimately a question to be decided by a jury, under Count 5,

Hubbard had a conflict of interest when, while being paid $5,000 per

month by APCI, he voted on a budget with language APCI drafted which

was designed to make APCI the sole PBM for Alabama Medicaid. ...................... 26

ii. The non-binding Todd opinion does not provide Hubbard a defense to

Count 5 since it was issued years after Hubbard entered into the contract

with APCI meaning he could not have relied upon it in taking the actions

he took, and is clearly distinguishable. In any event, Hubbards arguments involve mixed questions of fact and law which can only be decided at trial. ........ 30

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TABLE OF CONTENTS (continued)

iii. The non-binding Ross opinion does not provide Hubbard a defense to

Count 6 because it, like the Todd Opinion, was issued years after Hubbard

entered into the contract with APCI meaning he could not rely upon it in

taking the actions he took, and is clearly distinguishable. In any event,

Hubbards arguments involve mixed questions of fact and law which can only be decided at trial. .......................................................................................... 32

B. Counts 79 charging Hubbard with using his office to obtain personal gain, namely $12,000 per month, from SEAGD and lobbying the Governor and

Department of Commerce on SEAGDs behalf are legally sufficient. .......................... 34

i. Hubbards arguments that he complied with the terms of the letter from the Ethics Commission present factual questions for a jury to decide. ........................ 37

ii. Hubbards self-serving argument that he has a fundamental right to lobby, or more accurately a fundamental right to get rich lobbying while serving

as a public official, is absurd and wholly ignores the rights and interests of

his constituents, other public officials who do not seek to use public office

to get rich, and the people of the State of Alabama. .............................................. 38

C. Count 10 charging Hubbard with accepting a thing of value from Edgenuity, a

principal, is legally sufficient. ........................................................................................ 43

i. Hubbards construction of the pays full value exception would transform it into the they got a good deal exception, an exception that would swallow the rule. ..................................................................................................... 47

ii. Since the circumstances do not make it clear that Edgenuity compensated

Hubbard for reasons unrelated to his service as a public official, especially

since Edgenuity listed him as its contact for House Speakers in all 50 States

and he secured a contract for it by calling the Speaker of South Carolina,

the non-governmental business exception does not apply. .................................... 48

D. Counts 11 through 14 charging Hubbard with using his office for personal gain

by accepting money from Robert Abrams, representing Abrams and his

businesses before the Governor and Secretary of Commerce, and using state

resources to benefit himself and Abrams are legally sufficient. .................................... 50

E. Counts 1519 charging Hubbard with soliciting or receiving investments in his failing business from lobbyists and principals are legally sufficient. ............................ 59

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TABLE OF CONTENTS (continued)

i. The Craftmaster investments are not exempted from being things of value under the non-governmental business activities exception to the Ethics Act because Hubbard repeatedly emphasized they were necessary

for him to keep his Speakership and avoid political ruin. ...................................... 66

ii. The application of the pays full value exception of the Ethics Act to the Craftmaster scheme created by Brooke because Hubbard could not obtain

financing for Craftmaster due to a previous bankruptcy and on-going cash

flow problems is a fact question that must be determined, if at all, by a jury. ....... 67

iii. Brooke, Rane, and Burton are principals under the Ethics Act because they

are high-level executives with decision making authority in corporations

that employ lobbyists.............................................................................................. 68

F. Counts 2023 charging Hubbard with accepting things of value from lobbyists Bob Riley, Minda Riley Campbell, William Canary, and BCA principal Will

Brooke are legally sufficient. ......................................................................................... 70

i. Hubbards emails with Riley, Campbell, Canary, and Brooke demonstrate that they did not assist him in finding clients solely out of friendship. .................. 84

ii. The assistance in finding clients that Riley, Campbell, Canary, and Brooke

provided to Hubbard clearly qualifies as a thing of value since it is a gift, benefit, favor, service or other item of monetary value. ........................ 85

CONCLUSION ................................................................................................................. 86

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INTRODUCTION

Just nine months after the effective date of the Ethics Law1 amendments

passed during the 2010 special legislative session, Speaker Mike Hubbard, the

defendant in this case, complained to former Governor Bob Riley that he wanted to

be hired by the lobbying firm Riley opened after leaving office [e]xcept for those

ethics laws. Who proposed those things?! What were we thinking? AG0670566,

attached as Exhibit 64A to States February 27, 2015 Response to Hubbards

Motion for More Definite Statement (Feb. 27th 2015 Response). While we dont

know what every legislator who voted on the laws was thinking, based on his

Motion to Dismiss: Unconstitutionality of the Alabama Ethics Act filed August 21,

2015, it is clear that Hubbard was thinking that the ethics laws he designed and

shepherded through to passage would not apply to him or to his multiple-

thousands-of-dollars-per-month consulting contracts because those very laws were

unconstitutional. See Motion at 5 (Michael G. Hubbard , by and through the

undersigned counsel, hereby petitions this Court to enter an order dismissing the

indictment based on the unconstitutionality of the Alabama Ethics Act, Ala.

Code 36-25-1 et seq. ) (emphasis added).

In other words, Hubbard believed the laws to be great politically because

they helped his party take over the Alabama Legislature, and great legally because

1 In this brief, the State refers to the Alabama Ethics Act, Ala. Code 36-25-1 et seq., as

the Ethics Act or the Ethics Law.

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they would have no legal effect. Without effect, those laws could not be used to

stop him from personally benefiting from his elected position to the tune of tens of

thousands of dollars per month for representing the interests of a select few willing

to pay that priceon top of the salary he received from the state treasury for,

ostensibly, representing the interests of all Alabamians and those in his legislative

district. See Inside Alabama Politics, Volume 30, Number 19, August 3, 2015

(quoting Mark White as saying Speaker Hubbards support of the Alabama Ethics

Law hed voted for had been politicalnot legal,).

Strikingly, Hubbard does not deny in his Motion that he did any of the

things alleged in the indictment. See also Kim Chandler, Indicted House Speaker

Challenges Ethics Law; Says It Doesnt Apply to Him, The Republic, Sept. 11,

20152 (quoting Mark White as saying Everything the speaker did was entirely

appropriate.). It is also notable that the actions charged in the indictment began as

soon as the law went into effect in early 2011 meaning Hubbard had no hesitation

in taking the actions that he took. Instead, his argument is that he should get away

with doing all of them, including lining his pockets with millions of dollars while

he was state GOP chair and House Speaker, because, according to him, he has a

constitutional right to funnel party money to businesses he controls and to get paid

2 Available at:

http://m.therepublic.com/view/story/5c0b3cd4a58d4d679d90d0e163e534f2/AL--Indicted-

Speaker-Ethics-Challenge.

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tens of thousands of dollars each month by private interests on top of his legislative

salary for performing the job which the voters of House District 79 and his fellow

House members elected him to do.

The logical result of his arguments is that any law that infringes on a public

officials ability to receive (a very large) something extra on the side from

private interests willing to pay that person for performing their official duties is

unconstitutional. The Ethics Law expressly prohibits such blatant corruption

which is why Hubbard now seeks to invalidate it even though it was a key reason

he was elected Speaker and was the central focus of Hubbards war on

corruption campaign in order to restore the publics trust in government.3 As

the State demonstrates below, Hubbards extreme self-serving attacks on the Ethics

Law fail.

BACKGROUND FACTS

Ironically, the Ethics Act that Hubbard now seeks to overturn was a key

reason why he was elected Speaker. During the 2010 election cycle, Hubbard,

then the Alabama Republican Party Chairman, engineered a campaign strategy to

end 136 years of Democratic control of the State Legislature. This strategy

centered on the Hubbard designed Republican Handshake with Alabama, which

3 Republicans say Davis a latecomer on his ethics plan, Sebastian Kitchen,

MONTGOMERY ADVERTISER, April 10, 2009, available at:

http://southunionstreet.blogspot.com/2009_04_01_archive.html.

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aimed to, among other things, implement reforms to the Alabama Ethics Act,

36-25-1, et seq. Ala. Code (1975). GOP Chairman Hubbard explained that these

reforms were not possible unless and until the Republicans obtained a majority in

the Legislature:

Thankfully, Gov. Bob Riley and Republicans in the Legislature have

already proposed substantive anti-corruption legislation. The war on corruption has many enemies, but Republicans are committed to

the fight and we are determined to restore the publics trust in government. Unfortunately, Democrats will not allow our anti-

corruption bills to pass therefore a Republican majority is the only way for true ethics reform to become a reality in Alabama.

Republicans say Davis a latecomer on his ethics plan, Sebastian Kitchen,

MONTGOMERY ADVERTISER, April 10, 2009; see also It's Easy to Tell Who

REALLY Supports Ethics Reform...And Who DOESN'T!, Mike Hubbard, January

6, 2010 (During this 2010 election cycle, I urge you to vote to put Republicans in

office so we can implement the reforms that the Democrats refuse to seriously

consider. It is the only way to combat corruption and implement the ethics statues

our state has needed for too long.).4

Unveiled a few months before the 2010 election, the Handshake with

Alabama agenda made specific campaign promises focused on Ending

Corruption in Montgomery. GOP Chairman Hubbard claimed that if Republicans

were able to obtain majority control of the Legislature, then the Ethics Laws would

4 Available at: https://auburnrepro.com/Articles/Article.aspx?ai=34.

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be reformed in response to recent corruption scandals involving Democrats.

Legislative leaders unveil 2010 Republican Handshake with Alabama, Hank

Richards, EXAMINER.COM, August 17, 2010.5

In his book, Storming the State House, Hubbard elaborated on the

corruption cases involving Democrats and how these criminal prosecutions played

a key role in the 2010 election cycle and the subsequent passage of changes to the

Ethics Law. See Hubbard, Mike, Storming the State House, The Campaign that

Liberated Alabama from 136 Years of Democrat Rule, pp. 169-70, New South

Books, 2012 (There is no doubt the Democrats long history of corruption and the

fact that their legislative leadership consistently killed Republican-sponsored ethics

reform proposals would be a central focus during Campaign 2010.); see also id. at

p. 289 (Because of the laws passed in the special session and proudly signed into

law by Governor Riley, Alabama ethics laws are now among the strongest in the

nation. I firmly believe the dramatic reforms will be an important part of

Governor Rileys legacy. It is my hope that future historians will say that this was

the legislature that brought the reforms Alabama had needed for so long and that

fundamentally changed how state government operates.)

5 Available at: http://www.examiner.com/article/legislative-leaders-unveil-2010-

republican-handshake-with-alabama.

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Shortly after Republicans obtained their new majority in the Legislature,

then-Governor Bob Riley called a special session to pass reforms to the Ethics

Act.6 The Legislature then passed numerous changes to the Ethics Act, which

Governor Riley signed into law.7 These changes included two new provisions to

the Ethics Act.8 First, Section 36-25-1.1 was added, which prohibits members of

the Legislature from lobbying executive departments or agencies for money. See

Indictment, Counts 8-9, 12-13 (charging Hubbard with being paid by the Southeast

Alabama Gas District and Bobby Abrams businesses to illegally lobby the

Governors Office and Secretary of Commerce). Second, Section 36-25-5.1 was

added, which prohibits public officials from soliciting or receiving things of value

from lobbyists and principals. See Indictment, Counts 6, 10, 15-23) (charging

Hubbard with soliciting or receiving lobbyists and principals for things of value,

including $600,000 in Craftmaster investments and approximately $525,000 in

consulting contract payments).

6 Alabama special session on ethics to begin today, Kim Chandler, AL.COM, December

8, 2010, available at:

http://blog.al.com/spotnews/2010/12/alabama_special_session_on_eth.html.

7 Alabama Gov. Bob Riley signs seven bills on ethics and campaign finance, David

White, AL.COM, December 20, 2010, available at:

http://blog.al.com/spotnews/2010/12/hold_for_daves_call_alabama_go.html.

8 In addition to the new provisions, changes were also made to 36-25-1, 2, 3, 4, 7, and

27.

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Shortly after they were passed, Hubbard explained that these new provisions

were enacted to limit the influence of lobbyists: This place used to be run by

lobbyists. Now, it is run by lawmakers, and that's how it ought to be. There's no

question the stricter laws are a big reason for that.9 Less than four years later,

Hubbard now claims these and other provisions of the Ethics Act are

unconstitutional because they infringe on his fundamental constitutional right to be

a well-paid lobbyist and lawmaker at the same time. See Hubbards Motion to

Dismiss, at p. 31.

ARGUMENT

I. Hubbards Legal Challenges to the Ethics Act Fail.

A. The Alabama Ethics Act is not unconstitutionally vague because it

clearly gives notice of the conduct that is prohibited.

Hubbards first attack on the Ethics Act that he previously characterized as

being first in the nation10 is that it is unconstitutionally vague meaning it was

so poorly drafted by the Legislature he leads that it fails to give notice of what

9 Alabama's new ethics law fails to stop exemption requests from lobbyists and public

officials, Kim Chandler, AL.COM, November 6, 2011, available at: http://blog.al.com/spotnews/2011/11/alabamas_new_ethics_law_fails.html.; see also Hubbard,

supra p. 5, at p. 286 ([S]trengthening the ethics law would send a loud and clear message to the people of Alabama, and to the special interest groups that had run Montgomery for decades,

that things would be different from here on out.)

10 Alabama Voices: Legislature took historic steps in special session, Mike Hubbard,

MONTGOMERY ADVERTISER, December 18, 2010, available at:

http://archive.montgomeryadvertiser.com/article/20101219/OPINION0101/12190304/Alabama-

Voices-Legislature-took-historic-steps-special-session.

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conduct it prohibits. Motion at 5-6. As shown below, however, the Ethics Act is

not unconstitutionally vague.

The vagueness doctrine protects a defendants Fourteenth Amendment due

process rights against prosecution under a statute that contains insufficient

warning of what conduct is unlawful. Hicks v. State, 153 So. 3d 53, 64 (Ala.

2014) (internal quotation marks omitted); see also United States v. Hariss, 347

U.S. 612, 61718 (1954). The doctrine means that if a person could not

reasonably understand that his contemplated conduct is proscribed, he cannot be

criminally liable. Hicks, 153 So. 3d at 53. The vagueness doctrine protects against

statutes that fail to give adequate notice of how to avoid their penalties, are not

sufficiently focused to warn citizens of their reach and coverage, and may trap

the innocent by not providing fair warning. Id. In other words, a statute does not

violate the Fourteenth Amendments due process clause if it gives fair notice to

ordinary people of what conduct is unlawful.

Even when a statute could have been drafted more precisely or when it has

some inherent vagueness, it can still pass constitutional muster. Id. at 65 (internal

quotation marks omitted). The fact that a statute has more than one reasonable

interpretation does not make it vague. Id. Otherwise, there would be no need for

canons of statutory construction. Instead, courts should only invalidate a statute

under the vagueness doctrine if it is so incomplete, so irreconcilably conflicting,

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or so vague or indefinite, that it cannot be executed, and the court is unable, by the

application of known and accepted rules of construction, to determine, with any

reasonable degree of certainty, what the legislature intended. Id. (internal

quotation marks omitted).

Hubbard fails to show that Sections 36-25-5(a), (b), and (c); 36-25-5.1(a);

and 36-25-1.1 of the Ethics Act, the statutes he is charged with violating, are

unconstitutionally vague. Indeed, the vagueness section in his Motion merely

recites vagueness law principles without offering any explanation as to how they

apply to these statutes. The reason for his lack of explanation is obvious: all of

these statutes provide clear notice that the actions that form the basis for the

charges against him, actions that he does not dispute he took, are prohibited under

the Ethics Act. Indeed, vagueness challenges to the Ethics Act have repeatedly

been rejected by Alabamas appellate courts. See State v. Turner, 96 So. 3d 876,

880-82 (Ala. Crim. App. 2011) (reversing trial courts judgment that Ala. Code

36-25-5(a) is unconstitutionally vague); Hunt v. State, 642 So. 2d 999, 1026-29

(Ala. Crim. App. 1993) (rejecting claim that prior version of Ala. Code 36-25-

5(a) was unconstitutionally vague); see also Hunt v. Tucker, 875 F. Supp. 1487,

1517-18 (N.D. Ala. 1995), affd 93 F.3d 735 (11th Cir. 1996) (same); Hunt v.

Anderson, 794 F. Supp. 1557, 1564 (M.D. Ala. 1992), affd 976 F.2d 744 (11th

Cir. 1992) (same); Dill v. State, 723 So. 2d 787, 809-10 (Ala. Crim. App. 1998)

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(rejecting argument that Alabama Ethics Act is unconstitutionally vague and

noting that [t]he constitutionality of the Ethics Act . . . has repeatedly been

upheld. (citing Comer v. City of Mobile, 337 So. 2d 742, 750 (Ala. 1976);

Langham v. State, 662 So. 2d 1201, 1206-07 (Ala. Crim. App. 1994)). Hubbard

offers no reason for this Court to deviate from those holdings.

B. The Rule of Lenity Does Not Apply Here.

Although he does not explain how it would impact his case, Hubbard asserts

that the canon of statutory construction known as the rule of lenity applies and

requires the Court to construe the Ethics Act narrowly. Motion at 6-8. But the rule

of lenity is not a get-out-of-prosecution-free card. It is a canon of statutory

construction that applies only when a statute is ambiguous and other canons of

statutory construction do not resolve that ambiguity. See Kasten v. Saint-Gobain

Performance Plastics Corp., 131 S. Ct. 1325, 1336 (2011). That is, to show the

rule of lenity applies, Hubbard must show that the Ethics Act he and his fellow

legislators passed is so ambiguous that no matter what rules of statutory

interpretation are used, it remains unclear.

Thus, for the rule of lenity to apply in the first place, there must be actual

statutory ambiguity. In determining whether the Ethics Act is ambiguous, the

Court is not required to abandon common sense. Hicks, 153 So. 3d at 5859.

Rather, when interpreting criminal statutes, courts should give statutory words

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their ordinary meaningthis is the first and foremost canon of statutory

construction. Ex parte Pate, 145 So. 3d 733, 738 (Ala. 2013). In so doing, courts

should also ascertain and effectuate legislative intent expressed in the statute,

which may be gleaned from the language used, the reason and necessity for the act,

and the purpose sought to be obtained. Id.

As explained above, the sections of the Ethics Act that Hubbard is charged

with violating are not vague. Nor does Hubbard demonstrate that they are

ambiguous. Their ordinary meaning gives notice to public officials and employees

that conduct of the type Hubbard is charged with committing is prohibiteda fact

recognized by this Court in its recent Order denying the defendants Motion for

More Definite Statement. See September 4, 2015 Order. And the legislative

intent, expressed in the statute, reflects that the Ethics Act exists because public

officials should be independent and impartial, governmental actions should be

taken through the governmental structure, [n]o public office should be used for

private gain, public confidence in the integrity of government is important, and

the public interest requires appropriate ethical standards to govern public officials

and employees. Ala. Code 36-25-2(a). These statements of legislative intent are

consistent with the States recognized strong interest in preventing corruption or

the appearance of corruption, and the way the statutes are being applied to

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Hubbards conduct as charged in this case. See Fed. Election Commn v. Natl

Conservative Political Action Committee, 470 U.S. 480, 49697 (1985).

Accordingly, since the statutes Hubbard is charged with violating are clear,

and their application to Hubbard in this case furthers the legislative intent

underlying their passage and the States strong interest in preventing corruption or

the appearance of corruption, the rule of lenity does not apply in this case.

C. The Ethics Act Is Not Overbroad.

Hubbards argument that the Ethics Act is unconstitutionally overbroad

because it infringes on his so-called First Amendment right to lobby while serving

as a public official is not only legally deficient, but also would repeal virtually all

of the Ethics Act, since its basic point is that public officials can never be stopped

from being paid to lobby for private interests while holding public office.11

Motion

at 810. In other words, Hubbards overbreadth argument is itself so overbroad

that it would undo not only the amendments to the Ethics Act he shepherded

through the Legislature but all laws designed to prevent public officials from being

11

Under the logic of Hubbards argument, no limitations could be imposed on the ability of private interests to give public officials things of value to secure a public officials time and attention meaning that the provisions of the Ethics Act limiting lobbyists to spending $25 per

meal and $150 per year and principals to spending $50 per meal and $250 per year on a public

officialcornerstones of the ethics reforms Hubbard spearheadedwould also be written out of the Ethics Act as unconstitutional. See Mike Hubbard, Alabama Voices: Legislature took historic steps in special session, MONTGOMERY ADVERTISER, December 18, 2010. (Legislation that lowered the amount lobbyists and their clients may spend on entertaining public officials

from $250 a day to $250 a year, a dramatic decrease which will lessen special interest influence

on the political process.).

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influenced by outside entities who give them things up to and including tens of

thousands of dollars every month.

An examination of the overbreadth doctrine reveals that it clearly cannot be

used to shield corruption as Hubbard argues it should. The overbreadth doctrine is

an exception to the typical rule that someone challenging a statute as facially

unconstitutional must show that there is no set of circumstances under which the

application of the statute would be valid. Fla. Assn of Professional Lobbyists, Inc.

v. Div. of Legislative Info. Servs., 525 F.3d 1073, 1079 n.7 (11th Cir. 2008). A law

is overbroad if, instead of aiming specifically at evils the State can control, it

reaches activities that typically constitute protected speech. Id. at 1079.

The Alabama Supreme Court has explained that the overbreadth doctrine

voids statutes and regulations that achieve their object by sweep[ing]

unnecessarily broadly and thereby invad[ing] the area of protected freedoms.

Westphal v. Northcutt, ___ So. 3d ___, 2015 WL 3537484, *8 (Ala. 2015) (internal

quotation marks omitted). The relevant question is whether the Legislature could

have accomplished its goals with a more narrowly tailored law that does not

broadly stifle fundamental personal liberties, most often those protected by the

First Amendment. Id. In the First Amendment context, courts should evaluate the

challenged statutes possible direct and indirect burdens on speech, and only

invalidate a law that inhibit[s] the exercise of First Amendment rights if the

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impermissible applications of the law are substantial when judged in relation to the

statutes plainly legitimate sweep. Butler v. Ala. Judicial Inquiry Commn, 802

So. 2d 207, 213 (Ala. 2001); see also Dowling v. Ala. State Bar, 539 So. 2d 149,

151 (Ala. 1988).

Hubbard has not shown that any portion of the Ethics Act is

unconstitutionally overbroad. Nor could he, since the Ethics Act is carefully

tailored to prevent public officials from being influenced to act contrary to their

obligations of office by the prospect of financial gain to themselves or infusions of

money into their campaigns, Fed. Election Commn, 470 U.S. at 497, without

infringing on constitutionally protected speech. The Ethics Act does not prohibit

public officials from listening to constituents, private interests, or even lobbyists.

It also does not prohibit constituents, private interests, or lobbyists from

communicating with public officials. The Ethics Act similarly does not prohibit

public officials from lobbying each other on particular issues as part of their

official duties.

Instead, the Ethics Act prevents public officials from being paid tens of

thousands of dollars per month over and above their legislative salaries to lobby on

behalf of private interests in the guise of performing their official duties. The

Constitution does not give public officials the right to enrich themselves by

accepting substantial compensation from private interests in exchange for insuring

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that those private interests receive red carpet lobbying treatment. Nor does the

Constitution give public officials the right to only hear the voices of paying

interests while ignoring the voices and concerns of ordinary people who only pay

public servants through taxpayer funded legislative salaries. Boiled down to its

essence, Hubbards argument is that he has a constitutional right to be a legislator

lobbyist, or perhaps a lobbyist legislator, who earns an extremely handsome living

by catering to the interests of his powerful lobbying clients and using his public

position to advance their goals ahead of those of the average citizens who elected

him to that position.12

Unsurprisingly, no court has adopted Hubbards untenable position that

would gut the notion of representative democracy and shake the foundations of

good government to their core. The Ethics Act uses reasonable means to prohibit

public officials from using their office for personal gain. Likewise, the law serves

to achieve the legitimate and compelling interests of ensuring that the voices of the

people are not drowned out by the voices of the powerful few, and that public

officials elected by the people actually represent the peoples interests. Clearly,

then, the Ethics Act does not chill any protected speech so as to prevent a public

official from exercising his First Amendment free speech rights. Rather, it is

12

If Hubbard truly believed he was exercising his First Amendment right to lobby when

he violated the Ethics Laws, he could at least have registered as a lobbyist so his lobbying

clients, constituents, fellow legislators, and other public officials would know it. Ala. Code 36-

25-18 to -19.

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carefullyand wiselydesigned to prevent, deter, and punish those who would

abuse their public position for personal enrichment.

II. Hubbards Challenges to Counts I-IV of the Indictment Fail Because the Ethics Act Can and Should Be Applied to State Party Chairs and

Vice Chairs to Prevent Them From Converting Money Given to

Support Political Parties and/or Campaigns to their Own Personal

Benefit.

In the first four counts of the indictment, the grand jury charged Hubbard

with using his position as Chairman of the Alabama Republican Party to obtain

personal gain for himself and his businesses. Hubbard does not dispute that he and

his businesses did in fact benefit from his position as Chairman. See Feb. 27th

2015 Response at 7-10 (detailing how Hubbard used his position as Chairman to

funnel approximately $1,012,444.00 in ALGOP money to his printing and media

businesses both directly and through intermediaries). Instead, he twists and

distorts the Ethics Act to manufacture an argument that it cannot be applied to state

political party chairs and vice-chairs. Motion at 10-16. Hubbards argument fails,

however, and this case illustrates why the Ethics Act can and should be applied to

political party chairs and vice chairs in order to prevent them from converting

money raised to support political parties and/or campaigns for their own personal

benefit.

Hubbards argument consists largely of straw men that misread the clear

provisions of the Act. For example, Hubbard argues that, because the Alabama

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Republican Executive Committee and the ALGOP are businesses with which the

party chair and vice chair are associated, the Ethics Act criminalizes them using

their official positions to obtain personal gain for those businesses. Motion at 12-

14. The Ethics Act does no such thing since it explains that [p]ersonal gain is

achieved when the public official, public employee, or a family member thereof

receives, obtains, exerts control over, or otherwise converts to personal use the

object constituting such personal gain. Ala. Code 36-25-5(a) (emphasis added).

In other words, this provision of the Ethics Act does not prohibit party chairs and

vice chairs from using their positions to benefit the Alabama Republican Executive

Committee or the ALGOP; all it does is prevent chairs and vice chairs from

converting party money to personal benefit as Hubbard did to the tune of over one

million dollars when he was ALGOP Chair.

Similarly, Hubbards discussions of Sections 36-25-5(c) and 36-25-8 are

smokescreens designed to deflect attention away from his misuse of his position as

ALGOP chair. Motion at 13. As an initial matter, Hubbard is not charged with

violating either of these provisions as ALGOP chair, which means they are

irrelevant to the present proceeding. Setting aside their irrelevance, an

examination of them reveals, yet again, that Hubbard distorts their language to

support his failing argument. Section 36-25-5(c) prohibits public officials from

using or causing to be used equipment, facilities, time, materials, human labor, or

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other public property under his or her discretion or control for the private benefit or

business benefit of the public official, public employee, any other person, or

principal campaign committee, which would materially affect his or her

financial interest. (emphasis added); see also Count 14 (charging Hubbard with

illegally using state resources under his discretion for the benefit of himself and

Bobby Abrams businesses) . In other words, party chairs and vice chairs are free

to use equipment, facilities, time, etc., to benefit their political parties candidates,

but not to personally enrich themselves.

The other provision Hubbard cites, Section 36-25-8, prohibits public

officials from using or disclosing confidential information gained by virtue of

their public position in any way that could result in financial gain other than his or

her regular salary as such public official or public employee for himself or herself,

a family member of the public employee or family member of the public official,

or for any other person or business. Elsewhere, the Ethics Act defines

confidential information to mean [a] complaint filed pursuant to this chapter,

together with any statement, conversations, knowledge of evidence, or information

received from the complainant, witness, or other person related to such complaint.

Ala. Code 36-25-1(7). In other words, Section 36-25-8 is narrow in scope

meaning Hubbards attempt to broadly construe it fails.

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19

Besides his easily refuted straw men, the only other arguments Hubbard

raises against the applicability of the Ethics Act to party chairs and vice chairs is

that it infringes on the officials and their parties First Amendment rights of

association and free speech. Hubbard claims it infringes on the right of association

because it purports to establish rules governing a political partys internal affairs

by prohibiting its chairs and vice-chairs from engaging in particular conduct.

Motion at 14. Of course, the only thing the Ethics Act prohibits is party chairs or

vice chairs from using their position and party money for personal gain, a

prohibition that is clearly consistent with the States recognized strong interest in

preventing corruption or the appearance of corruption. See Fed. Election Commn

470 U.S. 480, 49697 (1985).

Hubbards related argument that the application of the Ethics Act to party

chairs or vice chairs violates their right to free speech fails for the same reason that

his associational rights argument fails. The Ethics Act does not prohibit or

otherwise regulate a political partys expenditure of funds, except to prevent party

chairs or vice chairs from converting the funds for personal gain. Hubbards claim

that the First Amendment protects the manner in which political parties choose to

use their privately raised funds is true up to a point, but, just as the First

Amendment does not protect a political parties right to use privately raised funds

to commit voter fraud, bribery, or any number of other criminal offenses, neither

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20

does it protect the rights of party chairs or vice chairs to enrich themselves using

party funds.13

See Dun & Bradstreet, Inc. v. Greenmoss Bldrs., Inc., 472 U.S. 749

(1985) (plurality opinion) ([S]peech on matters of purely private concern is of less

First Amendment concern.).

In sum, Hubbard is not charged with using his office as party chair to benefit

the Alabama Republican Party. He is charged with using his position as chairman

to obtain personal gain by funneling party money to his own businesses. The

charges against Hubbard are unrelated to the Alabama Republican Party, except

insofar as he illegally converted Party money for his personal gain. Neither the

Ethics Act, nor the State through this prosecution, seeks to influence how political

parties organize or govern themselves, or how they choose to lawfully spend funds

they raise. Instead, the Ethics Act and this prosecution are focused on ensuring

that party chairs and vice chairs do not abuse their position by illegal converting

13

To the extent Hubbards arguments rest on a notion that party chairs and vice chairs should not be classified as public officials, the State notes that the Alabama Legislature correctly and properly brought such persons within the ambit of the Ethics Act, as those persons

exercise broad and important public powers affecting the citizenry at large. For example, only

political parties as defined by law generally, parties receiving 20 percent of the general election vote or submitting a list of signatures of at least three percent of the voters (a definition that

clearly includes the ALGOP) are eligible for ballot access on a party basis. Ala. Code 17-6-22 & 17-13-40. A partys candidates do not make it on the ballot, however, unless they are certified by the party chair. Ala. Code 17-6-21(a) & 17-9-3. And the party can actually

disqualify such a candidate, or the candidate could withdraw, and if that happens too close to

election day, the persons name would remain on the ballot but none of the votes cast in their favor would count. Ala. Code 17-6-21(b). Instead, even though citizens would have gone to the

polls and voted overwhelmingly in favor of that person, the party would have the power to hand

pick a different unelected person to take office. Id. In this way, pre-election, party officials effectively exercise the appointment powers the governor would exercise post-election.

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party money to their own personal benefit as Hubbard did when he was chairman

of the Alabama Republican Party.14

III. Hubbards Arguments Related to Counts 5-23 of the Indictment are Improper Pretrial Sufficiency-of-the-Evidence Challenges or

Arguments Concerning Mixed Questions of Fact and Law. Either

Way, These Issues Are Properly Determined, If at All, at Trial by a

Jury.

Hubbards arguments related to Counts 5-23 of the indictment are nothing

more than sufficiency-of-the-evidence challenges or arguments concerning mixed

questions of fact and law. In either instance, they are issues to be determined, if at

all, by the jury at trial. Since they are not purely legal questions, then they have

nothing to do with whether the indictment is legally sufficient under Ala. R. Crim.

P. 13.5(c)(1).

Under Alabama law, an indictment is legally sufficient if it tracks the

language of the statute. State v. Davis, 2015 WL 3448085, at *2 (Ala. Crim. App.

May 29, 2015) (Thus, [a]n indictment is sufficient if it charges an offense in the

language of a statute, and it need not set up proof necessary to a conviction. Ex

parte Behel, 397 So. 2d at 165 (citing Finley v. State, 181 So. 123 (1938)). . . .

14

As an additional matter, Hubbards argument that ALGOP is a business with which Hubbard is associated makes no sense. His position as ALGOP chair made him a public official

under the Ethics Law, just like his position as a State Representative does. The Legislature is no

more a business with which Hubbard is associated than the Alabama Republican Party. All 23

Counts charge Hubbard with benefiting himself, Craftmaster, or Auburn Network, both of which

are undisputedly businesses with which Hubbard is associated. See Motion at 8 (Since Hubbard is an owner of Craftmaster and the Auburn Network, both qualify as a business with which

Hubbard is associated.).

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22

The particulars as to manner, means, place or circumstances [of the offense]

need not in general be added to the statutory definition. Smith v. State, 797 So.

2d 503, 514 (Ala. Crim. App. 2000) (quoting People v. Soto, 141 Cal. Rptr. 343,

346 (1977), quoting in turn People v. Britton, 56 P. 2d 494, 496 (1936))); see also

State v. Walker, No. CR-14-0765 (Ala. Crim. App. Sept. 18, 2015) (Slip. Op.) at 5

(reversing dismissal of indictment and finding indictment could not be dismissed

under Rule 13.5(c)(1) as insufficient or as failing to charge an offense when it

charged an offense and tracked the language of the statute defining the offense,

which prescribes with definiteness the essential elements of the offense.). This

Court has already determined the indictment is legally sufficient when it issued its

order denying the motion for more definite statement. See September 4, 2015

Order, at pp. 1-3. Hubbards arguments related to Counts 5-23 provide no reason

for this Court to reconsider that ruling.

Even though Hubbard couches his arguments directed to Counts 5-23 in

terms of legal sufficiency, his arguments are really improper sufficiency-of-the-

evidence challenges about whether the State can present sufficient evidence to

sustain a conviction. Alabama courts have repeatedly held that Rule 13.5 does not

allow trial courts to dismiss an indictment based on insufficient evidence, or a

possible lack of evidence. State v. McClain, 911 So. 2d 54 (Ala. Crim. App. 2005);

State v. Foster, 935 So. 2d 1216 (Ala. Crim. App. 2005); State v. Robertson, 8 So.

DOCUMENT 369

23

3d 356 (Ala. Crim. App. 2008); State v. Bethel, 55 So. 3d 377 (Ala. Crim. App.

2010). Thus, Hubbards arguments regarding Counts 5-23 are due to be denied

since they raise factual issues related to elements of each offense to be resolved

by a jury. June 13, 2014 Order, State v. Felix Barry Moore, CC-14-226.

The Court may under certain circumstances rule on a pure question of law

before trial, Ankrom v. State, 152 So. 3d 373, 378-79 (Ala. Crim. App. 2011), but,

as demonstrated below, Hubbards challenges raise, at best, mixed questions of law

and fact which are not proper for decision under Ankrom. See State v. Walker, No.

CR-14-0765 (Ala. Crim. App. Sept. 18, 2015) (Slip. Op.) at 7 (reversing dismissal

of indictment and finding Ankrom exception inapplicable because question of

defendants intent did not present the circuit court with a pure question of law, but

rather a mixed question of law and fact that could only be decided by a jury).

All of the challenges Hubbard makes to the sufficiency of the indictment require[]

proof of facts by the State so entwined with the merits of the case that a decision as

to whether [they] ha[ve] been proved should not be made before trial but should be

postponed until trial. State v. Edwards, 590 So. 2d 379, 380 (Ala. Crim. App.

1991).

Hubbard has raised factual issues for the jury to decide and not purely legal

questions for this Court to resolve pretrial. And the facts he discusses are

disputed, making pretrial resolution impossible and premature. As a result, this

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24

Court should consider Hubbards arguments at the conclusion of the States case,

not before trial. The State therefore objects to any pretrial evaluation of the

sufficiency of the States evidence. Equally, the State objects to any pretrial

evidentiary hearing designed to permit this Court to evaluate or determine the

sufficiency of the States evidence. Such a procedure is unavailable under

Alabama as explained above.

The State also objects to Hubbards presentation of facts not in evidence.

While the State declines to make any proffer of the sufficiency of its evidence

before trial, the State has responded to Hubbards factual arguments with selected

documents, illustrating disputed issues of material fact that must be resolved at

trial. In doing so, the State does not invite this Court to resolve any of those

factual issues. This Court should reject Hubbards sufficiency-of-the-evidence

challenges masquerading as sufficiency-of-the-indictment challenges on their face.

All 23 Counts should be tried before a jury and not dismissed.

A. Counts 5 and 6 charging Hubbard with voting for legislation that

would have resulted in his client APCI being the sole PBM for

Medicaid in Alabama, a clear conflict of interest, and with

receiving $5,000 per month from APCI are legally sufficient.

Counts 5 and 6 of the indictment relate to Hubbards interactions with

APCI. Count 5 charges Hubbard with voting for Senate Bill 143 of the 2013

Regular Legislative Session that would have made APCI the sole Pharmacy

Benefit Manager (PBM) for Medicaid in Alabama, a clear conflict of interest, in

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violation of Section 36-25-5(b) of the Alabama Code. Count 6 charges Hubbard

with soliciting or receiving a thing of value, namely $5,000 per month, from APCI,

who employed a lobbyist and was therefore a principal under the Ethics Act, in

violation of Section 36-25-5.1(a) of the Alabama Code. Hubbards Motion does

not actually challenge the legal sufficiency of Counts 5 and 6. Motion at 16-24.

Instead, it challenges the sufficiency of the States evidence related to these counts

based on his contention (a) that he did not have a conflict of interest when, while

being paid $5,000 a month by APCI, he voted on a budget that included language

drafted by APCI and submitted for inclusion in the budget by Hubbards chief

legal advisor designed to make APCI the PBM for Alabama Medicaid; (b) that an

advisory opinion from the Ethics Commission to Rep. Patricia Todd related to her

work advocating on behalf of the LGBT community issued years after his contract

with APCI expired validates his actions underlying Count 5; and (c) that an

advisory opinion from the Ethics Commission to Rep. Quinton Ross allowing Ross

to enter into a consulting contract to help Montgomery celebrate and commemorate

the 50th

anniversary of the Selma to Montgomery March issued years after

Hubbards contract with APCI expired validates his actions underlying Count 6.

Since these arguments are evidence-based challenges, they do not permit Hubbard

to avoid trial as a matter of law.

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26

i. Although it is ultimately a question to be decided by a jury, under Count 5, Hubbard had a conflict of interest when,

while being paid $5,000 per month by APCI, he voted on a

budget with language APCI drafted which was designed to

make APCI the sole PBM for Alabama Medicaid.

Between August 2012 and December 2013, APCI paid Hubbard

approximately $95,000 under a consulting contract. See APCI Contract,

AGdoc0107456, attached as Exhibit 10 to States Feb. 27th 2015 Response. In

February 2013, APCI provided language to then-Rep. Greg Wren for inclusion in

legislation that would set standards for an entity to be a PBM provider for Alabama

Medicaid that only APCI could meet. Feb. 27th

2015 Response at 12. After

attending meetings with Wren regarding the language, Hubbard directed his staff

to add the language to the Medicaid portion of the General Fund Budget, resulting

in his Chief Legal Advisor emailing the APCI language to the head of the

Legislative Fiscal Office for inclusion in the General Fund Budget Bill.

AGdoc0223151, attached as Exhibit 13 to States Feb. 27th 2015 Response.

Shortly thereafter, the APCI drafted language became a part of the House of

Representatives substitute version of the General Fund Budget (AGdoc0232108-

09, attached as Exhibit 14 to States Feb. 27th 2015 Response), which prompted

APCI president Tim Hamrick to send a thank-you letter to Hubbard. AG0170228,

attached as Exhibit 15 to States Feb. 27th 2015 Response. Indeed, APCI knew the

Speaker [was] on board as early as March 27, 2013 and used Hubbards support

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27

of the legislation to assist their lobbyist in influencing other legislators to vote in

favor of APCIs language. AGdoc0088791, attached as Exhibit 1; see also March

15, 2013 Email from Ferrell Patrick to Hubbard, AG0169699, attached as Exhibit 2

(Patrick compliments Hubbard on being a hero with the pharmacy leaders).

Hubbard himself actually took APCIs lobbying efforts a step further by personally

assisting Patrick in lobbying Dr. Don Williamson by authorizing Patrick to use

info in [a] document that contained a proposal [that] was shared with several

legislative leaders. March 16, 2013 Email from Ferrell Patrick to Hubbard,

AG0169701, attached as Exhibit 3.15

On April 23, 2013, the substitute version of the General Fund Budget was

voted on and approved by the House of Representatives. Hubbard voted yes on

the bill even though it contained the APCI drafted language that would make

APCI, for whom Hubbard was a retained consultant, the exclusive PBM for

Medicaid. AGdoc0232147, attached as Exhibit 16 to States Feb. 27th 2015

Response.

In doing so, Hubbard voted for legislation in which he knew or should have

known that he had a conflict of interest, violating Section 36-25-5(b) of the

Alabama Code. While Hubbard tries to play semantics with the definition of

15

Six months earlier, Hubbard sent Dr. Williamson a letter advocating APCIs position, which was drafted in large part by APCI and Patrick. See AG0166383, attached as Exhibit 12 to

States Feb. 27th 2015 Response (Patrick writes to Hubbard: This is essentially the message, but I didn't want to be so presumptuous as to put into your words.); see also AGdoc0091972-74, attached as Exhibit 4 (APCI emails regarding: Draft of Letter to Williamson from the Speaker)

DOCUMENT 369

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conflict of interest in the Ethics Act, Motion at 16-22, the Act clearly defines a

conflict of interest as a conflict on the part of a public official . . . between his or

her private interests and the official responsibilities inherent in an office of public

trust. Ala. Code 36-25-1(8). His vote for legislation that included language

drafted by and designed to guarantee a monopoly for APCI a business that was

paying Hubbard $5,000 per month to be a consultant and was run by a president

who thanked Hubbard personally for adding the necessary language to the 2014

General Fund Budget, AG0170228 attached as Exhibit 15 to States Feb. 27th

2015 Response. After Hubbard voted in favor of the legislation, APCIs lobbyist

confirmed in an email to APCIs president that the bill passed the House with our

language. AG0170321, attached as Exhibit 5; AGdoc0232147, attached as Exhibit

16 to States Feb. 27th 2015 Response. All of this meets the conflict of interest

definition, since Hubbards private interest in continuing to be paid $5,000 per

month by APCI would obviously conflict with the official responsibilities inherent

in representing all of his constituents and the people of Alabama who have an

interest in legislation. The need for bills being passed by unbiased legislators is

particularly true in this case, since the APCI language creates a monopoly for

Hubbards employer.

The Ethics Acts further explanation of what a conflict of interest involves

further supports the indictment. In the same section setting forth the just-quoted

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29

conflict of interest definition, the Ethics Act further explains that a conflict of

interest involves any action, inaction, or decision by a public official in the

discharge of his official duties which would16 materially affect his financial

interest in a manner different from the manner it affects the other members of

the class to which he or she belongs. Ala. Code 36-25-1(8). Hubbards action

in voting on a budget as part of his official duties as a legislator that contained

language drafted by a private interest paying him $5,000 per month meets this

definition. As far as the State is aware, no other official who voted on the budget

was being illegally paid $5,000 per month by APCI meaning that Hubbards

support of the legislation, which was recognized as a job well done for APCI,

materially affected his financial interest in a manner differently from all other

legislators.

In sum, Hubbards improper attempt to challenge the sufficiency of the

evidence showing that he had a conflict of interest when he voted on a budget

including language APCI drafted and designed to make it the monopoly PBM

provider for Alabama Medicaid fails. It also highlights why the grand jury indicted

him under Count 5 in the first place and why only a jury can decide whether he is

guilty or innocent.

16

Hubbards focus on the meaning of would in this definition in terms of the degree to which the legislation cleared the way for APCI to have a monopoly misses the mark. Motion at

14-15. The question under Ala. Code 36-25-1(8) is whether Hubbards financial interest not that of APCI would be materially affected in a manner different from his fellow legislators.

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30

ii. The non-binding Todd opinion does not provide Hubbard a defense to Count 5 since it was issued years after Hubbard

entered into the contract with APCI meaning he could not

have relied upon it in taking the actions he took, and is

clearly distinguishable. In any event, Hubbards arguments involve mixed questions of fact and law which can only be

decided at trial.

Failing to offer any convincing argument that he did not have a conflict of

interest in voting for the budget that would have made one of his paying

consulting clients the exclusive PBM for Alabama Medicaid, Hubbard argues

that the Ethics Commissions recent Advisory Opinion No. 2015-14, issued on

August 5, 2015, regarding Rep. Patricia Todd, excuses his actions. Motion at 20-

22. The Todd Opinion is not the get out of jail free card Hubbard suggests,

however, for multiple reasons. While the Ethics Commission has the authority to

issue advisory opinions, those opinions protect only (1) the person requesting them

or (2) people who rely on those opinions in good faith and in a materially like

circumstance. Ala. Code 36-25-4(a)(9). Ethics opinions do not protect any

person relying on the advisory opinion if the reliance is not in good faith, is not

reasonable, [or] is not in a materially like circumstance. Id.

The most obvious reason the Todd opinion does not aid Hubbard is that it

was issued three years after Hubbard entered into his consulting contract with

APCI and years after that contract ended. As a result, he could not possibly have

relied upon the Todd opinion in taking the actions underlying Count 5 meaning it

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31

provides him no defense on that count. See 36-25-4(a) (9) (The written advisory

opinions of the commission shall protect the person at whose request the opinion

was issued and any other person reasonably relying, in good faith, on the advisory

opinion in a materially like circumstance from liability to the state, a county, or a

municipal subdivision of the state because of any action performed or action

refrained from in reliance of the advisory opinion.) (emphasis added).

Additionally, even if the Todd opinion had been issued in time for Hubbard

to rely upon it, his reliance would not be in good faith or reasonable, including

because the Todd opinion does not cover materially like circumstances to Count 5.

The Todd opinion simply says a legislator may vote on issues espoused by a public

interest advocacy organization even when the legislator is employed by that

organization. The Todd opinion does not endorse a legislator voting to set contract

rules that ensure that the organization will be the only bidder to qualify for the

contract. In other words, while the Todd opinion takes the position that Rep. Todd

may advocate and lobby on behalf of LGBT issues while serving as the Director of

the Human Rights Campaign of Alabama (HRC Alabama), it does not say Todd

may vote on legislation that would ensure that HRC Alabama was a monopoly

provider of some service to the State or a state agency.

Thus, even if the Todd opinion had existed when Hubbard took the actions

he did, it still would not support his attempt to make APCI the exclusive PBM for

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Alabama Medicaid while receiving $5,000 per month from APCI. Hubbards

arguments are not purely legal questions and are, in fact, mixed questions of fact

and law, such as, what Hubbard did, whether that is similar to the Todd facts,

whether he could have relied on the Todd opinion in good faith and reasonably,

whether he did so rely, and whether the Todd opinion represents a correct

interpretation of the law.17

Such questions are not purely legal questions, and

therefore must be deferred until trial

iii. The non-binding Ross opinion does not provide Hubbard a defense to Count 6 because it, like the Todd Opinion, was

issued years after Hubbard entered into the contract with

APCI meaning he could not rely upon it in taking the

actions he took, and is clearly distinguishable. In any event,

Hubbards arguments involve mixed questions of fact and law which can only be decided at trial.

Hubbard is incorrect when he argues that Count 6 should be dismissed in

light of the Ethics Commissions Advisory Opinion No. 2014-04, issued on

October 1, 2014 regarding Senator Quinton Ross. That opinion takes the position

that Ross could enter into a consulting contract with the City of Montgomery

related to youth activities planned for the 50th

anniversary of the Selma to

17

In fact, although this Court need not wade into the issue since Hubbard could not have

reasonably relied on the Todd opinion in taking any of the actions with which he is charged due

to its recent issuance and the materially different factual circumstances out of which the Todd

opinion arises, the Attorney General and the District Attorneys Association, on behalf of every prosecutor in the State of Alabama, have jointly requested that the Ethics Commission reconsider

and withdraw the Todd opinion because it incorrectly interprets the Ethics Law. See AG, DAs protest chiseling of Alabama Ethics Law, John Archibald, AL.com, September 14, 2015, available at: http://www.al.com/opinion/index.ssf/2015/09/ag_das_protest_chiseling_of_al.html.

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33

Montgomery March. Motion at 22-24. Count 6 charges Hubbard with soliciting or

receiving $5,000 per month from APCI, a principal under Ala. Code 36-25-5.1(a).

Hubbards argument that the Ross opinion is a defense to Count 6 fails for

the same reason that his argument based on the Todd opinion fails. First, the Ross

opinion was issued on October 1, 2014, years after Hubbard entered into the APCI

contract meaning he could not have relied upon the Ross opinion when he entered

into that contract. Second, the Ross opinion does not arise out of similar

circumstances to Hubbards APCI contract because the contract covered by the

Ross opinion was for a one-off historic special event, not an on-going

representation of a private client for thousands of dollars per month. Accordingly,

given the clearly different circumstances involved in the Ross opinion, even if

Hubbard could have relied upon it, his reliance would not be in good faith or

reasonable meaning it could not provide him a defense to Count 6.18

At the very

least, as with his arguments regarding the Todd opinion, Hubbard presents no

questions of pure law and merely argues mixed questions of fact and law, and

therefore must be deferred until trial.

18

Hubbard is incorrect to suggest that the Ross opinions failure to address whether the City of Montgomery was a principal and therefore barred from hiring legislators means the

opinion approves of such arrangements. Motion at 19-20. As he notes, the opinion did not

address those facts. Id. In any event, the opinion is distinguishable from the Hubbard facts,

because using ones legislative position to secure a contract for a paymaster, as Hubbard did, is very different from helping a municipality commemorate a civil rights event, as Ross did.

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34

B. Counts 79 charging Hubbard with using his office to obtain personal gain, namely $12,000 per month, from SEAGD and

lobbying the Governor and Department of Commerce on

SEAGDs behalf are legally sufficient.

As charged in the indictment and further detailed in the States Motion for

More Definite Statement Response, from March 2012 to August 2013, Hubbard

was paid $12,000 per month by the Southeast Alabama Gas District (SEAGD) to

work as an economic development consultant. Feb. 27th 2015 Response at 15.

In all, Hubbard received $208,848.88 during that time period. Id. SEAGD obtained

a letter from Hugh Evans, General Counsel for the Ethics Commission, related to

Hubbards arrangement with SEAGD. AGdoc0063381, attached as Exhibit 19 to

States Feb. 27th 2015 Response. The letter advised SEAGD that the Ethics Act

mandated that the Speaker may not use his position or the mantle of his office to

assist him in obtaining consulting opportunities or providing benefits to his

consulting business or his clients. Id.

One obvious reason for that admonition is to ensure that all constituents are

represented equally, and that Hubbard not be able to receive (a very large)

something extra on the side to give the red carpet level representation to a select

few some of whom were not even his constituents or Alabamians. Hubbard was

being paid his legislative salary to represent his district as a legislator and all

Alabamians as Speaker. He was told in express terms by the Ethics

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35

Commissions counsel not to use his office for the personal benefit of himself,

his businesses, or his clients.

Contrary to that warning, Hubbard repeatedly violated the restriction in the

Ethics Commission letter, as shown on monthly activity reports he submitted to

SEAGD. In those reports, which contained Hubbards explanation for why

SEAGD was paying him $12,000 monthly, Hubbard reported that he had in fact

used his position and the mantle of his office to benefit himself, his businesses, and

his clients. He had done his best to ensure that SEAGDs interests were promoted

extra special before state government authorities.

Hubbard stated that he:

(a) met with Commerce Secretary Greg Canfield regarding the relocation of a truck plant from Pennsylvania to the Abbeville area (AGdoc0051085,

attached as Exhibit 20 to States Feb. 27th 2015 Response);

(b) met with Secretary Canfield on several occasions to discuss projects in Abbeville and Ozark (AGdoc0051086, attached as Exhibit 21 to States Feb. 27

th 2015 Response);

(c) met with Governor Bentley about the Abbeville project and outlined to the Governor what the State would need to provide to land the project (AGdoc0051088, attached as Exhibit 22 to States Feb. 27th 2015 Response);

(d) arranged a meeting for July 19, 2012 with Governor Bentley and others to discuss the relocation of a business from Miami to the Dothan Airport

(AGdoc0051090, attached as Exhibit 23 to States Feb. 27th 2015 Response);

(e) met with Governor Bentley and his Chief of Staff, David Perry, on July 12, 2012 to discuss recruiting an industrial refurbishing business,

Commercial Jet, to relocate its business operations to the southeast

Alabama area and the commitment the State of Alabama would need to

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36

make as well as funding sources (AGdoc0051091, attached as Exhibit 24 to States Feb. 27th 2015 Response);

(f) set up and led a meeting on July 18, 2012 with Governor Bentley and others regarding the Commercial Jet project (Id.);

(g) described coordinating a second meeting with Governor Bentley regarding Commercial Jet on August 31, 2012, where he also noted the

attendance of numerous state and local officials (AGdoc0051092,

attached as Exhibit 25 to States Feb. 27th 2015 Response);

(h) participated in a conference call with Governor Bentley, Greg Canfield and David Perry in September 2012 regarding the incentive package the

State would offer for the Commercial Jet deal, where he stated he

continue[d] to be a cheerleader for the project and point[ed] out the obvious economic and political benefits created by the successful

recruitment of the company and that he had received a commitment that the state will provide the necessary incentives (AGdoc0051093, attached as Exhibit 26 to States Feb. 27th 2015 Response);

(i) received a suggestion from an executive with Hankook Tire that Hubbard travel to South Korea to meet with him and who believed Hubbards role in government would mean a great deal and put Alabama at the top of the list if I were to visit (AGdoc0051094, attached as Exhibit 27 to States Feb. 27th 2015 Response); and

(j) spoke with Secretary Canfield in October 2012 and ensured that our area is considered and we are included in the mix (Id.).

In addition to these instances documented in reports Hubbard submitted to

SEAGD, Hubbard also violated the restriction that he not use his position or the

mantle of his office to assist SEAGD when he wore a name tag identifying himself

as Speaker of the House while on a SEAGD funded trip to the Paris Air Show in

June 2013. (See AGdoc0047918, AGdoc0047921, Invoices, etc., attached as

Exhibit 28 to States Feb. 27th 2015 Response; AG0742807, AG0742802, photos,

attached as Exhibit 29 to States Feb. 27th 2015 Response; see also AG0742798

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37

Email from lobbyist Minda Riley Campbell to Hubbard, attached as Exhibit 30 to

States Feb. 27th 2015 Response.).

Count 7 charges Hubbard with using his office for personal gain by seeking

compensation from and being compensated by SEAGD for his activities as a

public official, and Counts 8-9 charge Hubbard with acting as a paid representative

for SEAGD in his dealings with the Alabama Department of Commerce and the

Office of the Governor for the State of Alabama.

Hubbard does not contest that he did any of the above actions in his Motion.

Instead, in his Motion, Hubbard asserts that the Ethics Commission letter shields

his actions from prosecution under Counts 7-9, Motion at 25-27, 29-31, 34-35, and

that he has a fundamental right to lobby that shields him from prosecution under

Counts 8-9. Motion at 31-34. The first assertion is nothing more than an improper

sufficiency of the evidence argument, while the second finds absolutely no legal

support.

i. Hubbards arguments that he complied with the terms of the letter from the Ethics Commission present factual

questions for a jury to decide.

The Evans letter provides no protection for Hubbard because he failed to

follow the Ethics Commissions General Counsels guidance. That is, the

indictment alleges Hubbard illegally used his position as a legislator and/or

Speaker and/or the mantle of his office to benefit himself, his businesses, or

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38

SEAGD. Hubbards contrary contentions that his actions did somehow abide by

the terms of the letter are wrong, in the States view, but they are ultimately factual

questions requiring jury determination at trial, not legal questions properly

presented in a motion to dismiss the indictment.19

At the very least, they are mixed

questions of fact and law (not purely legal), and therefore must be deferred until

trial.

ii. Hubbards self-serving argument that he has a fundamental right to lobby, or more accurately a fundamental right to

get rich lobbying while serving as a public official, is absurd

and wholly ignores the rights and interests of his

constituents, other public officials who do not seek to use

public office to get rich, and the people of the State of

Alabama.

Hubbards argument that Counts 8 and 9 charging him with lobbying the

Governor and the Secretary of Commerce while serving as a public official and

being paid $12,000 per month by SEAGD violate his right to lobby on behalf of

his or his business clients under the First Amendment is extreme and legally

unsupported. Motion at 31.

To the States knowledge, this argument has never been made by any public

official in a corruption prosecution and Hubbard cites no authority for his novel

argument. This is unsurprising since it defies logic to argue that a public official

has a constitutional right to get paid extra above and beyond their legislative

19

Hubbards argument based on the Ross opinion is unavailing for the reasons detailed in Section III.A.iii above.

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salary to provide extra, red carpet lobbying services for those willing to pay them

and their businesses directly.

This is not a case about campaign contributions. This is a case about money

paid directly to Hubbard or his businesses because he serves as the Speaker of the

House. Under Hubbards view, other Ethics Law provisions, like the revolving-

door prohibition, would be a dead letter if legislators can simultaneously be paid

lobbyists. Likewise, Hubbards consulting contract legislator lobbyist exception

would render the 2010 reforms limiting the influence of lobbyists and principals

meaningless. Indeed, Hubbards argument advances such an untenable legal

position that it would nullify virtually every provision in the Ethics Law. Surely,

then, Hubbards motion to dismiss is due to be denied.

Here, the statues at issue are not facially invalid, nor have they been

improperly applied to Hubbard. The Ethics Act prohibits legislators from

representing any person, firm, corporation, or other business entity before an

executive department or agency for a fee. Ala. Code 36-25-1.1. The statute does

not prohibit Hubbard from representing himself, his constituents, or some other

person before an executive department or agency as part of his official duties for

which he receives a salary paid for by the people of Alabama or in his capacity as a

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citizen of Alabama. It only narrowly prohibits him from doing these things for a

fee. Thus, the statute does not infringe upon his right to free speech.20

Hubbard also similarly argues that Section 36-25-1.1 is unconstitutionally

overbroad because it bans lobbying for a fee in all cases, not just where there is

found to be a conflict of interest. Motion at 33-34. Hubbard cites no authority for

the proposition that conflict of interest must be an element of every ethics law

applying to legislators. Moreover, there is obviously no need to include the words

conflict of interest in Section 36-25-1.1, because a legislator lobbying for a fee

presents a per se conflict of interest. The conflict will be present in all cases.

A fundamental and irreconcilable conflict of interest exists when a

government official elected by popular vote to serve and represent the interests of

the public at large receives thousands of dollars per month on top of his public

salary from private interests and entities to lobby on their behalf and represent

them before the government in which the official serves.

Hubbards arguments here focus solely on vindicating his ability to enrich

himself with lucrative lobbying fees while holding public office. But Hubbard

20

Since the statute does not infringe on Hubbards First Amendment rights, there is no justification for subjecting it to strict scrutiny. Motion at 28. Nevertheless, even if it were

subjected to strict scrutiny, it would clearly still be constitutional since its prohibition is narrowly

drawn to only prohibit legislators from lobbying an executive department or agency for a fee

over and above their legislative salary, and supports the States recognized strong interest in preventing corruption or the appearance of corruption. See Fed. Election Commn, 470 U.S. at 49697.

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ignores the obvious reasons why governmental officials should be restricted from

being paid to represent people and entities before governmental agencies and

officials. For starters, his constituents have a strong interest in the restriction

because without it their interests would necessarily take a backseat to the interests

of Hubbards paying clients. The law also serves the interest of other public

officials who should know whether they are meeting with a legislator, a lobbyist,

or a legislator lobbyist. Finally, the States strong interest in preventing corruption

or the appearance of corruption also supports the constitutionality of the law. This

interest is served through the legitimate means of restricting elected officials from

serving their lobbying clients over the interests of the people who elected them.

Indeed, the legislative findings contained in the Ethics Act illustrate why the

protection of Hubbards constituents, other public officials, and the State requires

such a restriction. The six legislative findings supporting the Ethics Act, Ala.

Code 36-25-2, followed by the States brief explanations of how they support the

restriction contained in Section 36-25-1.1, are as follows:

(1) It is essential to the proper operation of democratic government that public officials be independent and impartial.

a. Such independence and impartiality clearly are impossible if public officials are paid to represent the interests of the well-heeled before

all others.

(2) Governmental decisions and policy should be made in the proper channels of the governmental structure.

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a. Proper channels of governmental structure are impossible if a government composed of public officials elected by the voters

channel their decisions and policy through their paymasters.

(3) No public office should be used for private gain other than remuneration provided by law.

a. Legislators receive a salary to do their legislative work which includes lobbying the executive branch.

(4) It is important that there be public confidence in the integrity of government.

a. Public confidence in governmental integrity is impossible if the government is composed of public officials responsive primarily to

those with the resources and ability to buy their time and attention.

(5) The attainment of one or more of [these ends] is impaired whenever there exists a conflict of interest between the private interests of a public

official and the duties of the public official.

a. A clear conflict of interest exists if a public official is being paid to represent the interests of a few when his official duties require him

to represent the interests of all of his constituents.

(6) The public interest requires that the law protect against such conflicts of interest and establish appropriate ethical standards with respect to the

conduct of public officials in situations where conflicts exist.

a. The prohibition against legislators representing any person before an executive department or agency, for compensation above and

beyond their legislative salary, is a clear way to protect against a

conflict of interest and to establish appropriate ethical standards.

Thus, restricting legislators from representing interests for an extra fee above and

beyond their public salaries is fully consistent with the legislative findings

underlying the Ethics Act.21

21

Hubbards brief mention that the statute does not provide fair warning as to what constitutes representation similarly fails. Motion at 30. Section 36-25-1.1 is titled Lobbyists and defines what constitutes lobbying. The section then prohibits members of the Legislature

from representing, for a fee, reward, or other compensation, in addition to that received in his or her official capacity any person, firm, corporation, or other business entity before an executive

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C. Count 10 charging Hubbard with accepting a thing of value from

Edgenuity, a principal, is legally sufficient.

Similar to his contract with APCI, Hubbard was paid $7,500.00 per month

from another principal, Edgenuity, Inc. and/or E2020, beginning in April 2012.

That company, like APCI, employed lobbyist Ferrell Patrick in Alabama and had

active interests in state government. See March 31, 2013 Email from Patrick to

Michael Humphrey, AG0169842, attached as Exhibit 6 (The political and

educational landscape have aligned with a unique opportunity for Edgenuity to

explode its [sic] presence in Alabama. To maximize this opportunity, I must

engage personally and dedicate all the resources at my disposal. To this end, I

propose you retain The Patrick Company at a fee of $10 thousand per month.). In

fact, Patrick offer[ed] tutorials to Hubbard learn more about what [Edgenuity]

do[es]. AG0165120-21, attached as Exhibit 7.22 Hubbard was therefore

prohibited from accepting things of value from Edgenuity under Section 36-25-1.1

while he held public office. See Count 10.

department or agency. Reading the statute as a whole and looking to its plain meaning, it is clear

that representation includes Hubbards actions on SEAGDs behalf before the Alabama Department of Commerce and Office of Governoractions he included in his monthly activity reports back to SEAGD, which were used to justify his work for the money he was paid.

.

22

Less than five months later, Patrick also arranged for at least $20,000.00 in political

contributions to PACs affiliated with Hubbard from two of Patricks lobbying clients, Compass Learning and APCI. See August 2, 2012 Email from Hubbard to Minda Riley Campbell,

AG0543145, attached as Exhibit 9.

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Even though Hubbard was prohibited from taking things of value (i.e., the

$7,500.00 per month) from Edgenuity because it was a principal, Hubbard took the

money and his consulting activities directly involved his public office. Edgenuitys

internal emails show that Hubbard served as the companys contact for House

Speakers in all 50 states. AGdoc0158228, attached as Exhibit 32 to States Feb.

27th 2015 Response. Hubbard knew that his position as Speaker was central to his

work for Edgenuity, as he acknowledged in an email to the President of

Edgenuity, Michael Humphrey: I was just in Alaska for the National Speakers

Conference. It is a great opportunity to spend time with and establish a relationship

with fellow speakers. AG0166226-28, attached as Exhibit 8.

In fact, Hubbards original contract with Edgenuity made clear that he would

act as their lobbyist until Patrick emailed Humphrey with suggested edits to to

eliminate the suggestion that [Edgenuity was] hiring [Hubbard] as a lobbyist.

Email from Patrick to Humphrey attaching document entitled Mike Hubbard

Lobbyist.docx, AG0164813, attached as Exhibit 1023; see also Email from

Humphrey, AG0164808-10, attached as Exhibit 11 (Here is the proposed lobby

contract for Mike Hubbard. Mike is the current Speaker of the House in

Alabama.my thought in using him would be for intros into House and Senate

23

See also Email from Patrick to Humphrey, AG0166376, attached as Exhibit 14 (Hope it's okay with you, but I made [a] change to Mike [Hubbard] and me to reflect work outside the

state of Alabama. I know that this is an internal doc, but in the wrong hands could prove to be a

nuisance, since we don't have to register in AL.) (emphasis added).

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leadership in states where we do not have lobby support (and even states where we

do, when necessary)..) (emphasis added).

At one point, Hubbard emailed Humphrey to report that he assisted

Edgenuitys lobbying efforts with the South Carolina Speaker of the House, Bobby

Harrell. Hubbard emailed Humphrey and said: I hope the contract in Charleston

you were having issues with a while back is still going well. I know Speaker

Harrell got involved in that one following my call to him. AGdoc0158088,

attached as Exhibit 33 to St