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DOCUMENT 369

ELECTRONICALLY FILED
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43-CC-2014-000565.00
CIRCUIT COURT OF
LEE COUNTY, ALABAMA
MARY B. ROBERSON, CLERK

IN THE CIRCUIT COURT


OF LEE COUNTY, ALABAMA

STATE OF ALABAMA

v.

MICHAEL GREGORY HUBBARD,


Defendant.

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CASE NO. CC-2014-000565

STATES RESPONSE TO HUBBARDS MOTION TO DISMISS


CHALLENGING THE CONSTITUTIONALITY OF
THE ALABAMA ETHICS ACT

DOCUMENT 369

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

ii

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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 multiplethousands-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

Available at:
http://m.therepublic.com/view/story/5c0b3cd4a58d4d679d90d0e163e534f2/AL--IndictedSpeaker-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

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 anticorruption 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.)

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

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
Hubbards Legal Challenges to the Ethics Act Fail.

I.
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

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/AlabamaVoices-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 36-255(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 3625-18 to -19.
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carefullyand wiselydesigned to prevent, deter, and punish those who would


abuse their public position for personal enrichment.
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.

II.

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 1214. 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
17

DOCUMENT 369

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.

18

DOCUMENT 369

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
19

DOCUMENT 369

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 17-622 & 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.
20

DOCUMENT 369

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.).
21

DOCUMENT 369

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-theevidence 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.
22

DOCUMENT 369

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
23

DOCUMENT 369

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
24

DOCUMENT 369

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.

25

DOCUMENT 369

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 (AGdoc023210809, 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
26

DOCUMENT 369

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)
27

DOCUMENT 369

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
28

DOCUMENT 369

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.
29

DOCUMENT 369

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 2022. 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
30

DOCUMENT 369

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
31

DOCUMENT 369

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 50 th 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.
32

DOCUMENT 369

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.
33

DOCUMENT 369

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

34

DOCUMENT 369

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. 27th 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. 27 th 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
35

DOCUMENT 369

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
36

DOCUMENT 369

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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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 revolvingdoor 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 States Feb. 27th 2015 Response (emphasis added).
Likewise, Hubbard contacted Thom Tillis, the Speaker in North Carolina at
Humphreys request to lobby him about virtual charter schools. See July 16, 2012
Email AG0165927, attached as Exhibit 12.
Hubbard challenges the factual sufficiency of Count 10 in three separate
arguments, none of which are proper under a motion to dismiss the indictment and
all of which present questions that should be resolved, if at all, by a jury.
Hubbards first argument is that his actions are covered by communications from
the Ethics Commission similar to the Evans letter discussed in Sections III.B &
III.B.i. above. Motion at 34-35.

As discussed in that section, however, this

argument presents numerous factual questions for the jury, including whether
Hubbard complied with the terms of the Ethics Commission communications.

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While Hubbard claims the communications excuse his actions because he


only did work for Edgenuity outside of the State of Alabama, as shown above,
Edgenuity listed Hubbard as the contact for House Speakers in all 50 States which
would obviously include Alabama. Further, even assuming Hubbards work for
Edgenuity was all out of state (which the State disputes and is a question for the
jury), the offense charged (soliciting or receiving a thing of value from a principal)
occurred in Alabama. The above instances demonstrate, therefore, that Hubbard
did not follow the terms of the communications which means that Hubbard cannot
use them to excuse his actions. It is for a jury to decide these facts. At the very
least, Hubbards arguments are not pure questions of law and instead present
mixed questions of fact and law, which means they must be deferred until trial.
Hubbards other two arguments regarding Count 10 constitute attempts to
distort two statutory exceptions the full value exception and the nongovernmental business activities exception to fit the facts of his case. These
arguments are, again, fact-bound challenges that are not appropriate for a motion to
dismiss the indictment meaning they do not allow Hubbard to avoid trial.
Nevertheless, as shown in the sections that follow, they are also meritless.

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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.

The Ethics Act provides that the term thing of value does not include
[a]nything for which the recipient pays full value. Ala. Code 36-251(34)(b)(9).

Hubbard twists this exception to cover his actions on behalf of

Edgenuity by claiming that his actions resulted in Edgenuity making a profit


more than it paid him through his $7,500 per month consulting contract. Motion at
36-37.
Hubbards construction of the pays full value exception is contrary to
everything the Ethics Act stands for and would create an unworkable exception
that would swallow the rule. The pays-full-value exception applies if an individual
pays face value for things like tickets to a football game. It does not apply to the
situation where a private company pays a public official thousands of dollars a
month and ends up making more money based on that officials lobbying efforts
than it expended on the official. In other words, the pays full value exception is
not the Edgenuity got a good deal exception or the Hubbard was a good
legislator lobbyist exception.
The complete absurdity of Hubbards construction of the pays full value
exception is illustrated by a simple example of how it would apply.

Two

legislators enter into the exact same contract with the exact same private entity and
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DOCUMENT 369

receive the exact same compensation under the contract. One of the legislators is
able to secure profit for the private entity in excess of the amount the entity pays
him under his contract, while the other legislator is unable to secure a profit for the
private entity in excess of his compensation. Under Hubbards construction of the
pays full value exception, the first legislator the profitable one gets off scotfree but the second legislator the one who did not make as much money for his
paymaster is guilty of a felony.
Of course, the Ethics Act should not and does not turn on whether a public
official is able to generate sufficient profit for a private interest so that the private
interest makes money off paying the public official. Accordingly, Hubbards
illogical construction of the pays full value exception, which would gut the
Ethics Acts prohibition on legislators getting paid more than their legislative
salary to lobby on behalf of paying clients, must be rejected.
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.

The Ethics Act states that the term thing of value does not include
[c]ompensation and other benefits earned from a non-government client in
the ordinary course of non-governmental business activities under
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circumstances which make it clear that the thing is provided for reasons unrelated
to the recipients public service as a public official.

Ala. Code 36-25-

1(34)(b)(10). Hubbard argues that this exception applies to the $7,500 per month
he received from Edgenuity as a consultant because, he says, his assistance with
securing NCAA approval for an Edgenuity contract24 and his assistance with a
project in South Carolina were unrelated to his public office. Motion at 37-38.
Edgenuitys payments to Hubbard were not specifically tied to these two
projects, however, meaning that they are not the exclusive lens through which the
applicability of the exception must be judged. Indeed, Edgenuity listed Hubbard as
its contact for Speakers in all 50 States which would clearly include Alabama
where his public position is Speaker and Edgenuity has interests in state
government. Consistent with that fact,

24

Notably Hubbard began his financial relationship with Edgenuity in April 2012, but did
not do anything regarding the NCAA until January 2013. Further, after he was contacted by
APCIs Alabama lobbyist Ferrell Patrick regarding the NCAA project, Hubbard openly admitted
that he had no contacts with the NCAA and instead had to solicit individuals inside Alabama
for help setting up a meeting between APCI and the relevant NCAA decision-maker. See
AG0168495-98, attached as Exhibit 13. Obviously, Hubbard was not paid $67,500 between
April and January for non-existent contacts with the NCAA. Instead, as the State intends to
prove to a jury at trial, he was paid, at least in part, because he was Speaker of the House.
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see
also AG0164779-80, attached as Exhibit 15 (Humphrey writes: I am considering
a deal with the House Speaker in Alabama as you know.he can get us in front of
any speaker in the country regardless of party.but way more influence with the
RsI think this would help us in states that we do not have a lobby
presence.) (emphasis added).
Thus, the circumstances do not make it clear that Edgenuity was paying
Hubbard for reasons unconnected to his public position, but in fact seem to
indicate just the opposite. Regardless, the issue is fact intensive (not purely legal)
and must be decided, if at all, by a jury at trial.
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.

Counts 11 through 14 arise out of Hubbards contract with Bobby Abrams


and his businesses operating under CV Holdings, LLC. Hubbard solicited Abrams
in September 2012 to have Abrams hire Auburn Network, Inc., to help his plastic
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DOCUMENT 369

cup company with sales, even though Hubbard candidly admitted that he did not
know anything about the cup business. AG0541121, attached as Exhibit 34 to
States Feb. 27th 2015 Response. In October 2012, Abrams through his plastic cup
company, Capitol Cups, Inc., hired Hubbard as a Consultant for $10,000.00 per
month. AGdoc0119880, attached as Exhibit 35 to States Feb. 27th 2015 Response.
As charged in Count 11, Hubbard once again used his position or the mantle
of his office to perform activities for which he was compensated by Abrams
company, in violation of Ala. Code 36-25-5(a). Hubbard also used state
equipment, facilities, time, human labor and other public property under his control
for the private benefit of himself and his client, Abrams, in violation of Ala. Code
36-25-5(c); (Count 14).
For example, in July 2013, CV Holdings requested Hubbards assistance
with a patent for which Abrams had applied. AGdoc0120055, attached as Exhibit
36 to States Feb. 27th 2015 Response. Hubbard directed his Chief of Staff, Josh
Blades, to assist Abrams with speeding up the patent process. See AGdoc0197873
(phone records of Blades call to the U.S. Patent Office), attached as Exhibit 37 to
States Feb. 27th 2015 Response. Hubbard also made calls on Abrams behalf to the
Patent Office. AGdoc0016221-22, attached as Exhibit 38 to States Feb. 27th 2015
Response. With Blades assistance, Hubbard successfully helped Abrams obtain
the patent, which was issued in August 2013. Hubbard then commented to Abrams
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that he hope[ed] [his] calls and pushing [had] help[ed] speed it up a bit.
AGdoc0119931, attached as Exhibit 39 to States Feb. 27th 2015 Response.
Hubbard also used his position for personal gain by assisting Abrams with
lobbying the Alabama Department of Commerce and the Office of the Governor to
build a training center for workers that could be hired by Abrams company. See
AGdoc0119901, attached as Exhibit 40 to States Feb. 27th 2015 Response.
Hubbard personally spoke with Secretary Canfield and Governor Bentley on
Abrams behalf on that issue. Id. Hubbard also utilized another state employee
under his control, Kristen Hull, to arrange meetings with Canfield regarding
Abrams businesses. AGdoc0119904, attached as Exhibit 41 to States Feb. 27th
2015 Response. As a result, as with his activities for SEAGD, Hubbard was
charged as acting as a paid representative for Abrams in his dealings with the
Department of Commerce and the Governors Office, in violation of Ala. Code
36-25-1.1; (Counts 12-13).
Hubbard also used his official position for personal gain by reporting to
Capitol Cups that, while attending a legislative conference in Scotland, Hubbard
was able to meet with Georgia State Senator Don Balfour, who is an executive
with Waffle House. July 10, 2013 from Hubbard to Tina Belfance,
AGdoc119989, attached as Exhibit 16. While Hubbard was acting in his official
capacity as a legislator at a conference, he and Sen. Balfour discussed the dead
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DOCUMENT 369

end Hubbard hit with Waffle House. Balfour pledged to break through for
Capitol Cups and Hubbard. Id. Hubbard then reported to Capitol Cups his
activities, in which he wore the mantle of his office, to justify the money he was
receiving. In other words, Hubbard violated Section 36-25-5(a) and the clear
advice from the Ethics Commission because he use[d] 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. Letter from Hugh Evans, General
Counsel, Alabama Ethics Commission, January 27, 2012.25
In challenging Counts 11-14, Hubbard returns to many of his previous
arguments that the State has already shown are not proper for a motion to dismiss
the indictment but are instead jury questions, and are meritless. Specifically,
Hubbard argues that the Ethics Commission letter he received for his SEAGD
contract excuses his $10,000 per month consulting contract under Count 11.
Motion at 39-40. This argument is farcical since, as shown above, Hubbard did not
follow the explicit guidance from the Ethics Commission. Again, a jury should
resolve this question because it is not purely legal, but clearly factual.
Similarly, Hubbard returns to his previous argument that the Ethics
Commissions advisory opinion regarding Quinton Ross issued on October 1, 2014
excuses his conduct. Motion at 40-41, 46. As set forth in Section III.A.iii above,

25

Attached to Hubbards Motion as Exhibit E.


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however, Hubbard cannot use the Ross opinion as a defense since it was issued
over two years after he entered into his Capitol Cups consulting agreement,
meaning he could not have relied on it in taking the actions underlying the charges
in the indictment, and because the circumstances underlying the Ross opinion are
materially different.
Hubbard once again falls back on his fundamental-right-to-lobby argument,
which was completely debunked in Section III.B.ii above, to argue that he cannot
be prohibited from being paid $10,000 per month to represent Abramss interests
before the Governor or the Secretary of Commerce, or to use state resources to
lobby the Patent Office on behalf of Abrams. Motion at 43-46. Hubbard has no
constitutional right to lobby for a fee on behalf of Abrams and Hubbards argument
to the contrary only underscores the States point.
Abrams does not live in Alabama meaning he cannot vote for Hubbard. He
does have business interests in Hubbards district, however, and is a successful
enough businessman that he was able to pay Hubbard $10,000 per month to
represent his interests both in Alabama and in front of the U.S. Patent Office.
Further, his payments not only secured Hubbards time, they also secured
Hubbards staffs time as shown by Hubbard directing his Chief of Staff to work
on the patent issue on Abrams behalf.

In other words, by paying Hubbard

$10,000 per month, Abramsa non-Alabamianwas able to ensure that Hubbard


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would prioritize Abrams personal and business interests over the interests of the
people living, working, and voting in Hubbards district and in this State, and that
Hubbard would divert the resources at his disposal away from serving those people
in order to service Abrams.
Besides these failed re-tread arguments, Hubbard raises three other equally
non-meritorious arguments. First, he argues Counts 11-14 should be dismissed
because neither he nor Auburn Network had business relations with Robert
Abrams d/b/a CV Holdings, LLC as charged in these counts. Motion at 38-39.
While Hubbard is technically correct that the consulting contract for him to be paid
$10,000 per month was with Capitol Cups and not Robert Abrams d/b/a CV
Holdings, LLC, he also concedes that Capitol Cups is an affiliate of Abrams and
CV Holdings. See Motion at 38.Thus, not only does Hubbard clearly know exactly
what contract Counts 11-14 concerned, it also does not matter which of Abrams
businesses paid Hubbard since they are all controlled by Abrams and operate under
the CV Holdings umbrella.26 That is, Hubbard took money from Abrams and used
his public position to lobby the executive branch, illegally use state resources, and
Hubbard otherwise wore the mantle of his office to benefit himself, Abrams, or
26

Since Hubbard clearly knows the basis for Counts 11-14, even if this did constitute a
technical defect in the indictment, it would still not be sufficient for dismissal. See Ala. Code
15-8-4 (An indictment must not be held insufficient . . . by reason of any defect or imperfection
in any matter of form which does not prejudice the substantial rights of the defendant on the
trial.); see also Ala. R. Crim. P. 13.5(c)(2) (No charge shall be deemed invalid for any
defect or imperfection in the charge that does not tend to prejudice the substantial rights of the
defendant upon the merits.).
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their respective businesses. Thus, the indictment is legally sufficient and any
factual disputes will be resolved by a jury at trial.
Second, Hubbard argues that Ethics Commission advisory opinions to
former Representatives April Weaver and Oliver Robinson shield his actions from
prosecution. But Hubbard asserts, and documents show, that Hubbard signed the
contract with Capitol Cups in 2012. Mot. to Dismiss (Unconstitutionality) at 40.
The Weaver opinion was not released until August 6, 2014. As a result, Hubbard
could not have relied on that opinion. Based on these undisputed facts, the Weaver
opinion does not apply in this case. But even if that opinion were somehow
relevant, whether Hubbard complied with its requirements or those outlined in the
Robinson opinion are factual questions.
In Advisory Opinion 2014-02, the Commission concluded that former Rep.
Weaver could accept a multi-county position with the Baptist Health System, but it
warned that she could not: vote, attempt to influence, or in any manner participate
in the legislative process regarding that entity or that issue; use her office or the
mantle of her office to obtain business opportunities for her employer; or be
personally and directly involved in any aspect of a transaction with public entities
within her sphere of influence, including but not limited to, the solicitation or
negotiation of contracts, as well as personally making contact with public entities,
regardless of the means of contact, as her direct contact with those public entities
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DOCUMENT 369

would be a use of office for personal gain. Advisory Op. No. 2014-02 at 7. And
the Commission required the Baptist Health System to file with the Ethics
Commission any contracts to be paid even in part with state, county, or municipal
funds. Id.
Former Rep. Robinson had an ownership interest in an advisory investment
firm focused on state and local government bonds. Advisory Op. 2000-20 at 3.
The Ethics Commission concluded that Robinson could not be personally and
directly involved in any aspect of a transaction with public entities within his
sphere of influence, including solicitation or negotiation of contracts as well as
personally making contact with public entities; and he could not exert influence
over public entities which receive funding or other appropriations from the
legislature or were within his sphere of influence to obtain business. Advisory
Op. 2000-20 at 78. Like Weavers employer, Robinsons firm was required to
submit any contracts paid in whole or in part by state, county, or municipal funds
to the Ethics Commission for review. Id. at 8.
Whether Hubbard relied on Advisory Opinion 2000-20 to former Rep.
Robinson, and whether that reliance was in good faith and in materially like
circumstances, are jury questions.

See Ala. Code 36-25-4(a)(9).

Whether

Hubbard actually complied with the Ethics Commissions requirements set forth in
either opinion is a factual question for a jury to resolve at trial. A jury should
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decide whether Hubbard used his office to obtain benefits for Capitol Cups when
he arranged several meetings with the Governor and the Secretary of the
Commerce Department in order to facilitate the development of a training center
CV Holdings could use. A jury should decide whether Hubbard personally and
directly contacted these members of the executive department and whether he used
his office for personal gain as a result.
Lastly, Hubbard argues that he did not use his office for personal gain as
charged in Count 11 because Abrams did not reach out to him because of his
public position. Motion at 43. Of course, the issue under Count 11 is not whether
or why Abrams contacted Hubbard; the issue is whether Hubbard used his public
office for personal gain. This question should only be resolved by a jury.
Further, Hubbards argument yet again twists and distorts the Ethics Act in
absurd ways. Under his argument, as long as a private client did not initially enter
into the contract with the public official based on the officials position, the official
would have carte blanche permission to use his office to benefit himself and the
private client afterward in order to maintain the contract, keep the client happy,
and keep the money flowing to the official without ever violating the Ethics Act.
As with his argument concerning the pays full value exception in Section III.C.i
above, a simple hypothetical illustrates how unworkable and extreme Hubbards
position is. Two legislators enter into the same consulting contract with the same
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client for equal pay. The only difference between the two legislators is that one
was obviously hired because of his public position while the other was not. After
they were hired, each legislator uses his office to benefit the client, keep the client
happy, and keep the money flowing to themselves. Under Hubbards view of the
Ethics Act, the one hired because of his public position would be guilty of a felony
while the other would not, even though they both used their office after being
hired for personal gain. Unsurprisingly, his position finds no support in the
Ethics Act, case law, or common sense.
E.

Counts 1519 charging Hubbard with soliciting or receiving


investments in his failing business from lobbyists and principals
are legally sufficient.

Counts 15-19 charge Hubbard with soliciting or receiving things of value


from lobbyists or principals in his efforts to raise $1,500,000.00 in capital for his
printing company Craftmaster. Specifically, Hubbard solicited and received a
$150,000.00 investment from ten individuals four of whom have active interests
in state government, employ lobbyists, and are otherwise considered principals
under Alabama law. Those four individuals are (1) Will Brooke, a Board Member
and 2011 Chairman of the Business Council of Alabama (BCA); (2) Stern Agee,
an investment firm led by then-President and CEO, James Holbrook; (3) Jimmy
Rane, President of Great Southern Wood; and (4) Rob Burton, President of Hoar
Construction. See Counts 16, 17, 18, 19. In all, Hubbard solicited and received
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$600,000.00 from these principals. Hubbard also solicited lobbyist Dax Swatek to
participate in the Craftmaster investment scheme, but Swatek declined to invest.
See Indictment, Count 15.
The Craftmaster investment scheme arose out of Craftmasters failure to pay
employee withholdings taxes to the federal government in 2011 and its
accumulation

of

large

amount

of

debt.

See

Regions

Amendment,

AGdoc0187173-76, attached as Exhibit 42A to States Feb. 27th 2015 Response;


Regions Extension Agreement, AGdoc0187308-19, attached as Exhibit 42B to
States Feb. 27th 2015 Response. Previously, in 2005, Craftmaster filed for Chapter
11 bankruptcy protection. See AGdoc0187174, attached as Exhibit 42A to States
Feb. 27th 2015 Response. Much of the debt that caused Craftmaster to file for
bankruptcy, however, was forgiven and the company was allowed to exit
bankruptcy and restructure its business. See id.
Craftmaster experienced cash flow problems again in 2008. Id. As
Craftmasters revenues slowed, their operating expenses outpaced the cash
flowing back into the operation and, as a result, Craftmaster remained undercapitalized and continue[d] to struggle with cash flow and debt service. Id.
Craftmasters financial problems were compounded by its failure to pay employee
payroll taxes to the federal government. See id. ([D]ue to the cash flow shortage
during FY2011, the borrower slowed in payroll tax payments and is currently,
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DOCUMENT 369

delinquent for approximately $350[,000]. This situation has been turned over to
their outside CPA for appropriate action to repay and settle any fines or penalties.
The borrower is now paying its ongoing payroll taxes.).
Craftmasters failure to pay these taxes also caused the company to default
on its $600,000.00 loan from Regions Bank. See AGdoc0187308, attached as
Exhibit 42B to States Feb. 27th 2015 Response (Various Events of Default
have occurred under the Loan Documents, including without limitation, the failure
of [Craftmaster] to pay all payroll withholding taxes to the IRS). This loan was
personally guaranteed by Hubbard. Id.
Due to the tax and loan issues, Hubbard approached Brooke, a financial
advisor for Harbert Management Corporation and BCA Board member, for advice
on Craftmasters financial problems. Hubbard expressed to Brooke, among others,
that his financial problems had the potential to ruin him personally and politically.
See AGdoc0221903 (Hubbard email to Brooke), attached as Exhibit 44 to States
Feb. 27th 2015 Response (I will be anxious to hear your thoughts, but I believe if
I take the reins of the business, rIse [sic] the capital necessary to eliminate the debt
and most importantly take care of the tax debt I can turn [Craftmaster] around.
Failure is not an option as it means personal and political ruin.) (emphasis
added); see also Nov. 21, 2012 Email from Hubbard to Minda Riley Campbell,
AG0758375, attached as Exhibit 17 (Hubbard writes: Ive just been running
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around trying to keep Craftmaster from going bankrupt! Thats had me on the run
for the past three months.).
Hubbard also explained that he needed financial favors from Brooke in order
to avoid resigning his position as Speaker and member of the House of
Representatives:
Personally, however, my employment with IMG, Auburns multi-media
rights holder, ends at the end of this month As you know, my concern is
financial and the fact that serving as Speaker consumes a enormous
amount of time and generates virtually no income. I have been in
discussions with Governor Riley and believe I would have an opportunity to
work with him and his company if I were to give up being Speaker and
resign from the Legislature. Although I believe I am making positive
changes in Montgomery, I need to think of my obligations to my family.
Please keep me in your thoughts as I make this decision.
AGdoc0221916-17 (Hubbard email to Brooke), attached as Exhibit 45 to States
Feb. 27th 2015 Response (emphasis added).

Brookes response to this email

indicated that he was interested in helping Hubbard fix his money problems to
ensure that Hubbard would keep his job as Speaker:
There should be a solution to this. I have spoken to many business people
about it, and have found no answer. I even spoke to Governor Riley about it,
and he told me that you two had discussed it and were working on some
options. I did not realize that path would lead to your resignation but, on
reflection, I guess that is a given. It is quite a quandary.
Id.
After Hubbard made clear to Brooke in the course of these and other emails
that the financial problems of Craftmaster, among other things, could ruin Hubbard
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personally and politically and might even cause Hubbard to resign as Speaker
Brooke provided a solution. Brooke gave Hubbard a free financial investment plan
and advised Hubbard to raise $1,500,000.00 in capital from ten investors at
$150,000.00 per person. In exchange for the money, each investor would be given
preferred stock in Craftmaster, which would pay the investor interest and dividends
over time. Hubbard explained the plan to former Governor Bob Riley as follows:
With regard to the Craftmaster deal I mentioned to you on Thursday, Will
Brooke has helped me put together a scenario that I believe will work. If I
can find 10 people to invest $150,000 (total of $1,500,000), I can pay all of
the back payroll taxes, virtually all of the remaining debt (including 1/3 of
the LOC) and free up roughly $40,000 per month in cash flow. The offer is
to pay a 6% return on the investment beginning 3 months after the
investment with a payback of the original $150,000 in five years.
AG0541955, attached as Exhibit 46 to States Feb. 27th 2015 Response.
In addition to providing the free financial plan, Brooke also invested
$150,000.00 in Craftmaster. AGdoc0232037, attached as Exhibit 48 to States
Feb. 27th 2015 Response. That is, even though Brooke is a principal for the
BCA, Hubbard solicited and received from Brooke a free financial investment plan
for Craftmaster and a $150,000.00 investment in Hubbards failing printing
business. See Counts 16 (investment) and 23 (financial plan). Hubbard did so with
the clear indication that Brookes failure to help Hubbard would very likely result
in Hubbard stepping down as Speaker.

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Hubbard also solicited the President and CEO of Stern Agee, Jim Holbrook
who, like Brooke, is a principal under the Ethics Act as officer of Stern Agee
to participate in the Craftmaster investment scheme. After meeting with Holbrook,
Hubbard emailed Brooke as follows: I met with Jim Holbrook today in Bham. It
went very well. He indicated that he would almost certainly do one of the
$150,000 deals and may have its investors who would be interested on one []or
two more! AGdoc0222185, attached as Exhibit 49 to States Feb. 27 th 2015
(emphasis added); see also Count 17. Ultimately, Stern Agee invested $150,000 in
Craftmaster. AGdoc0184125, attached as Exhibit 50 to States Feb. 27th 2015
Response .
In September 2012, Hubbard similarly solicited Jimmy Rane, also a
principal under the Ethics Act, to participate in the Craftmaster investment scheme.
When Hubbard approached Rane about the investment, Rane told Hubbard to
speak with Great Southern Woods financial person Gene Woodham. See
AGdoc0221619, (Hubbard email to Rane), attached as Exhibit 51 to States Feb.
27th 2015 Response; see also AGdoc0221584-85, attached as Exhibit 18
(Woodham writes: Mike I hate to complicate things, but of course Im obligated
to run all executable documents by our in-house attorney). This led to Rane
taking a security interest in the transaction. AGdoc0221557, attached as Exhibit
19. Just as Hubbard had previously explained to Brooke, Hubbard told Rane that
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DOCUMENT 369

failure is not an option. Id. In that same email, Hubbard added that Ranes
[p]articipation would be a huge help. Id. After Woodham signed off on the
investment, Rane invested $150,000.00 in Craftmaster. See AGdoc0221603,
attached as Exhibit 52 to States Feb. 27th 2015 Response.
Around the same time, Hubbard solicited Rob Burton, the CEO of Hoar
Construction and principal under the Ethics Act, to invest in Craftmaster. In one of
the emails Hubbard sent to Burton in the course of soliciting his investment,
Hubbard wrote as follows: I just wanted to check in with you regarding the
investment in Craftmaster. I have received the money from three (3) of the six (6)
investors thus far and am trying to get it all in so we can pay off Heidelberg (at a
discount) as well as the other parts of the plan I outlined for you. AGdoc0221787
(email from Hubbard to Burton), attached as Exhibit 53 to States Feb. 27th 2015
Response. Burton later invested $150,000.00 in Craftmaster. See AGdoc0221812,
attached as Exhibit 54 to States Feb. 27th 2015 Response.
Hubbard was thus properly charged with Counts 15-19 for soliciting or
receiving investments in Craftmaster from these five individuals.

Hubbards

challenges to these counts in his Motion are, yet again, all fact-bound and improper
for pretrial determination in a motion to dismiss the indictment. Specifically,
Hubbard argues that the Craftmaster investments do not qualify as a thing of value
under the non-governmental business activities and the pays full value
65

DOCUMENT 369

exceptions to the Ethics Act, and that Brooke, Rane, and Burton are not principals
under the Ethics Act. As demonstrated below, while Hubbards arguments are
meritless, they are ultimately fact questions that must be determined, if at all, by a
jury.
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.

As discussed above, the Ethics Act exempts [c]ompensation and other


benefits earned from a non-government ... business relationship in the ordinary
course of non-governmental business activities under circumstances which
make it clear that the thing is provided for reasons unrelated to the recipients
public service as a public official. as a thing of value. Ala. Code 36-251(34)(b)(10).

Hubbard argues that this exception applies to the Craftmaster

investments because he sought out investors to invest in Craftmaster in order


to reduce the companys debt and that he solicited and/or received these
investments based solely on his position as owner of Craftmaster. Motion at 4749. Hubbards own emails, quoted above, where he emphasizes that Craftmasters
failure would mean his personal and political ruin and that the investments were
necessary for him to keep his speakership contradict and refute his Motion on this
point. That by itself is enough to require the issue to be presented to the jury.
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Hubbards hyperbolic contention that the States interpretation of the Ethics


Act underlying Counts 15-19 would criminaliz[e] normal, everyday business
transactions meaning millions of Alabamians and their businesses will fall under
the rigorous strictures of the Ethics Act is nonsensical. Motion at 48-49. There is
nothing normal or everyday about the Speaker of the Alabama House
soliciting six-figure investments from some of the most powerful businessmen in
the State under the threat that, without the investment, he may be forced to resign
from his office meaning they would lose access to him as a public official.
Ordinary, everyday businesses and people do not have such leverage to exert, and
one of the reasons for the Ethics Act is to prevent people like Hubbard who do
have such leverage from using it to gain personal financial advantage as happened
here.
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.

The Ethics Act further provides that the term thing of value does not
include [a]nything for which the recipient pays full value. Ala. Code 36-251(34)(b)(9).

The pays-full-value exception most naturally applies to items, such

as football tickets, with an undisputed, clearly stated, and unchanging value.


Hubbards attempt to apply the exception to the Craftmaster scheme as a matter of
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DOCUMENT 369

law fails because the value of Craftmaster and whether the Craftmaster investors
received full value in exchange for their $150,000 investments is a fact question
requiring resolution, if at all, by a jury. Of course, Hubbard paid nothing for the
free investment plan designed by Will Brooke, so the exception could not apply to
that thing of value in any event.
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.

Hubbards final argument in the section of his Motion addressing the


Craftmaster counts (Counts 15-19) relates solely to Counts 16, 18, and 19. Here,
he argues that Brooke, Rane, and Burton do not qualify as principals under the
Ethics Act. Motion at 50-55. Notably, Hubbard does not contend that Swatek was
not a lobbyist or that Sterne Agee was not a principal.
The Ethics Act defines a principal as a person or business which
employs, hires, or otherwise retains a lobbyist. Ala. Code 36-25-1(24). While
Hubbard admits that the entities where each of these individuals serves as senior
executives are principals because those entities employ lobbyists, he contends that
the executives themselves are not lobbyists because they have not filed principals
reports with the Ethics Commission, have not been notified by the Ethics
Commission that they are required to filed principals reports, and have not been
personally identified as principals by lobbyists in public documents. Of course,
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DOCUMENT 369

whether or not these individuals are in fact principals is a fact question that must be
determined by the jury, as evidenced by Hubbards fact intensive arguments
related to them.
Further, it is well-established that a corporation can act only through its
servants, agents, or employees. Home Indem. Co. v. Anders, 459 So. 2d 836, 840
(Ala. 1984) (citing Martin v. Anniston Foundry Co., 68 So. 2d 323 (1953)). As
Hubbard admits in his Motion, Rane is the president and CEO of Great Southern
Wood, Burton is the president and CEO of Hoar Construction, and Brooke is on
the Board of Directors of the BCA and was BCA Chairman in 2011.27 As a result,
each of these men, in their capacities as senior executives within companies that
Hubbard admits in his Motion are principals, would certainly have the power to
hire, fire, direct, supervise, or otherwise interact with the lobbyists employed by
the companies that they run. In fact, Rane signed the principal disclosure form in
2012 on behalf of Great Southern Wood, (AGdoc0229480, attached as Exhibit 21),
further illustrating that when these corporations interacted with lobbyists, these
men were involved. Thus, the question of whether Brooke, Rane, and Burton are
principals is fact-driven question that can only properly be answered by the jury at
trial. Hubbards concession that Swatek is a lobbyist and that Stern Agee is a
principal as charged in the indictment is notable here, since it shows that each of
27

See AGdoc0222549 attached as Exhibit 20 (Hubbard calls Brooke the best Chairman
and congratulates Brooke on a tremendously successful chairmanship.).
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the Counts involve factual issues related to elements of each offense to be resolved
by a jury.
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.

Counts 20-23 charge Hubbard with soliciting and receiving assistance in


obtaining new clients for his company Auburn Network from lobbyists and others
with interests before the Alabama Legislature. Specifically, former Alabama
Governor, Bob Riley, who became a registered lobbyist after he left office, helped
Hubbard with obtaining potential new clients for Auburn Network. (Count 20.)
Lobbyists Minda Riley Campbell and Billy Canary, as well as BCA principal Will
Brooke, provided similar assistance. (Counts 21-23.) Additionally, as discussed
above, Brooke also developed and provided a free financial investment plan for
Craftmaster. (Count 23.)
Hubbards Auburn Network scheme arose out of, among other things, the
loss of his employment with IMG, who was his primary employer prior to his
election as Speaker. In fact, shortly after his election as Speaker on December 8,
2010, IMG informed Hubbard that he was being laid off effective March 31, 2011
and would receive severance pay through March 31, 2012. AGdoc0200585,
attached as Exhibit 55 to States Feb. 27th 2015 Response. After March 31, 2012,
Hubbard, through Auburn Network, only received commission sales income from
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DOCUMENT 369

IMG, which was financially problematic for Hubbard. See June 7, 2011 Email
from Hubbard to IMG, AG0187453, attached as Exhibit 22 (proposing to be
IMGs consultant through Auburn Network); April 10, 2012 Email from
Hubbard to Riley, AG0552075, attached as Exhibit 23 (Hubbard writes that his
proposal was rejected and instead [IMGs] offer to me is to just pay me a 10%
commission on sales, but they know that I gave away most of my clients over the
years since I was not on commission. They put no value on having me associated
with the program (Auburn). After the rent increase, it would most likely be a net
loss for me to stay involved. Not what I had hoped for.) (emphasis added); see
alsoAG0200586-90, attached as Exhibit 18 to States Feb. 27th 2015 Response.
Hubbard immediately sought to find clients for Auburn Network that could replace
his lost income from IMG.
One of the first people he turned to for help in finding clients was formerGovernor Riley. Hubbard told Riley that IMG complained that he spent too much
time on politics and told [him] to choose. AG0595776, attached as Exhibit 56 to
States Feb. 27th 2015 Response. Hubbard later remarked to Riley that he was upset
with Auburn University regarding IMGs termination of Hubbard and said: AU
doesnt seek my advice or even treat me very well. As you know, they allowed
IMG to kick me to the curb.and I am the Speaker of the House! AG0536195,
attached as Exhibit 57 to States Feb. 27th 2015 Response (emphasis added).
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In soliciting Rileys help finding clients, Hubbard made it crystal clear that
Auburn Networks financial problems concerned Hubbard both personally and
politically. For example, Hubbard told Riley that he had to sell stocks now to live
off of, which isn't very comfortable for the long term. AG0546395 (Hubbard
email to Riley), attached as Exhibit 58 to States Feb. 27th 2015 Response.
Hubbard likewise remarked that his quest to be an effective Speaker had been
to the detriment to [his] personal and financial wellbeing. AG0569373 (Hubbard
email to Riley), attached as Exhibit 59 to States Feb. 27 th 2015 Response. In
response to such emails, Riley advised Hubbard to quit telling people you may
have to step down as speaker due to financial concerns. AG0569790, attached as
Exhibit 60 to States Feb. 27th 2015 Response.
Hubbards solicitation of Rileys help in finding clients resulted in the
$12,000 per month SEAGD contract underlying Counts 7-9 of the Indictment,28 as
well as Hubbards $10,000 per month contract with Bobby Abrams business.29 In
addition to soliciting Rileys help finding clients, however, Hubbard went so far as
to directly solicit Riley to have his lobbying firm, Bob Riley & Associates

28

In fact, Hubbard continuously and repeatedly sought Rileys assistance with his
SEAGD activities after Hubbard was hired. See, e.g., AG0557746, AG0559025, AG0555394,
AG0554092-94, AG0556418, AG0545815-16, AG0558837, AG0554087-89, attached
collectively as Exhibit 25.
29

See Email between Hubbard and Riley, AG0552112, attached as Exhibit 26 (Riley tells
Hubbard that Abrams was [c]omitted to [$]100,000 and Hubbard responds that he wish[ed]
[Abrams] would give [Hubbard] a job.).
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(BR&A), hire Auburn Network on several occasions. In fact, Hubbard once


directly solicited lobbyist Riley for help and asked: Can I just come work for
BR&A? I need a job and this way I would work [for] someone I respect.
AG0594186, attached as Exhibit 61 to States Feb. 27th 2015 Response. According
to Hubbard, [t]he hours and pay for his Speaker of the House job is not good,
and added: I really want to work for BR&A!. AG0586846, attached as Exhibit
24. Hubbard and Riley later discussed this possibility and Hubbard then emailed
Riley that he: certainly appreciate[d] your willingness to allow me to be a part of
your next venture(s). AG0596605, attached as Exhibit 62 to States Feb. 27th
2015 Response.
Hubbard also communicated to Riley that he wished [he] could just run
[BR&A] for [Riley]. AG0592859, attached as Exhibit 63 to States Feb. 27th 2015
Response. In addition to soliciting Riley to let himself personally work for BR&A,
Hubbard also solicited Riley to have BR&A hire Auburn Network to handle
marketing. AG0570038, attached as Exhibit 64 to States Feb. 27th 2015
Response. Hubbard even quoted a monthly fee figure of $10,000 per month for
Bob Riley & Associates to pay Auburn Network. See AG0593589-90, attached as
Exhibit 27 (Hubbard tells Riley: Id say around $10k per month plus printing,
mailing, etc. maybe more depending on the time required for PR, media, etc. I/we
can do it all for you.); November 1, 2011 Email from Hubbard to Riley,
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AG0568075-76, attached as Exhibit 28 (Hubbard writes: I am still hoping for a


monthly retainer with BR&A to handle everything from media to PR materials. I
will come pitch my capabilities and submit some samples of my work. Much of it
involves a brilliant and dynamic governor.) (emphasis added).
Knowing that this would be illegal under the Ethics Act so long as Riley was
a registered lobbyist, Hubbard told Riley that he could de-register as a lobbyist
in order for Hubbard to be able to form a business relationship with BR&A. Id.;
see also August 19, 2011 Email from Hubbard to Riley, AG0576204, attached as
Exhibit 29 (Hubbard tells Riley to be a principal and that Rileys life will be
much easier if you are not a lobbyist.); AG0576074-75, attached as Exhibit 30
(Hubbard writes to Riley: If you are a lobbyist, it is impossible for us to work
together.) (emphasis added). In fact, in one email Hubbard expressly
acknowledged that the Ethics Act forbids him from working for BR&A because
Riley was a lobbyist. See Hubbard email to Riley, AG0670566, attached as Exhibit
64A to States Feb. 27th 2015 Response (I need to be a salesman for GB&R.
Except for those ethics laws. Who proposed those things?! What were we
thinking?) (emphasis added).
Hubbard then proposed an alternative scheme which, in his view, would
hopefully allow BR&A to legally hire Auburn Network:
I still believe that you are a "strategic business consultant", not a lobbyist.
You could hire a lobbyist for BR&A - a Riley Team person who will do it
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DOCUMENT 369

for virtually nothing - which will allow BR&A to hire Auburn Network, Inc.
to handle your marketing needs. We could do media buying, polling, focus
groups, design work, printing, anything you need.
Hubbard email to Riley, AG0632622, attached as Exhibit 64B to States Feb. 27th
2015 Response; see also AG0632828 (Hubbard email), attached as Exhibit 64C to
States Feb. 27th 2015 Response (The Governor is NOT a lobbyist he is a
strategic consultant!!!).
Riley did not, however, de-register as lobbyist. Nor did he change his title
to strategic consultant. Instead of hiring Hubbard, Riley tried to help him obtain
new clients for Auburn Network. After Riley helped Hubbard obtain his lucrative
SEAGD contract, Hubbard regularly sought assistance from Riley in identifying
new business opportunities for SEAGD. See, e.g., AG0546395 (Hubbard email to
Riley), attached as Exhibit 66 to States Feb. 27th 2015 Response (I hope you can
help me with the suppliers in locating in SEAGD areas. I need to deliver
something in order to justify my existence.) (emphasis added); AG0528214,
attached as Exhibit 67 to States Feb. 27th 2015 Response (If you have any
clients/prospects for econ dev that you can help me set up meetings with SEAGD,
that would really help me.) (emphasis added); Hubbard email to Riley,
AG0559026, attached as Exhibit 31 (Hubbard asks Riley how to identify
prospects and remarks that Hubbards inexperience and ignorance concerns
[him] a little.).
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Hubbards requests for assistance from Riley became desperate after


SEAGD reduced Hubbards salary from $12,000.00 per month to $7,500.00 per
month effective March 1, 2013. See AGdoc0047945, attached as Exhibit 68 to
States Feb. 27th 2015 Response. Hubbards fear that SEAGD might terminate the
entire contract contributed to his desperation. See AG0536175, attached as Exhibit
69 to States Feb. 27th 2015 Response (SEAGD cut my monthly pay in half and
some of the mayors want to cut if off completely. I desperately need to get some
site visits set up to show I am generating interest. Any help or advice would be
appreciated.); AG0545282 (Hubbard email to Riley), attached as Exhibit 70 to
States Feb. 27th 2015 Response (I need to visit with you and try and figure out
what I need to be doing. I dont want SEAGD to cut me loose!) (emphasis
added).
In addition to seeking Rileys assistance in identifying clients for SEAGD,
Hubbard also sought Rileys assistance with obtaining new clients for Craftmaster.
For example, on February 18, 2013, Riley mentioned his lobbying client, Allan
McArtor, the Chairman and CEO of Airbus Group, Inc., in an email to Hubbard.
See AG0534038, attached as Exhibit 71 to States Feb. 27th 2015 Response. In
response, Hubbard wrote to Riley: I would like to meet [McArtor], if possible. I

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really need to get some of their printing business somehow. Id.30 Riley then
replied that Hubbard should solicit Wayne Smith, the CEO of Community Health
Systems a principal represented by lobbyist Dax Swatek.
On February 19, 2013, Riley asked Hubbard: Does Wayne Smith not have
printing business --- looks like that would be a good client a hospital has nothing
to [d]o with your position. Id. Hubbard then told Riley that he had already
solicited Wayne Smith for printing business for Craftmaster: I have asked him
and he [p]ut us in contact with the person doing the printing, but each individual
hospital does their own. We are pursuing. Id.
Hubbard also solicited Rileys daughter and BR&A business partner,
lobbyist Minda Riley Campbell, for assistance with obtaining new clients for
Auburn Network. Shortly after BR&A was formed on February 9, 2011, Hubbard
proposed to Campbell that he should quit as Speaker and just go to work with
Riley. AG0593122, attached as Exhibit 71A to States Feb. 27th 2015 Response.
Campbell responded and said: you are where you need to be, Mr. Speaker. BR&A
will be there when the time is right. (Id.). Campbell later discussed Hubbard
working for Riley and proposed: what if dad dropped his lobbyist classification? I
could be his lobbyist, since i [sic] am already registered. BR and A could be a

30

Hubbard followed up this solicitation on March 27, 2013 and wrote to Riley: Good
luck with Airbus today. I sure would like to talk to them about their printing!.
AG0530938, attached as Exhibit 32 (emphasis added).
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client. Then he could hire you to build a pr/political machine. Or can we unring the
bell? AG0781036, attached as Exhibit 71B to States Feb. 27th 2015 Response.
Hubbard responded: The BR&A would work great and is, in fact, what I had
thought we were going to do. When he registered as a lobbyist, it messed that up. I
hope he can and will unring the bell, but Rob seems to think it might be a problem.
Im not sure. He should be a strategic consultant, not a lobbyist. I dont know why
he ever registered. (Id.)
Further, Campbell, like Riley, similarly gave Hubbard assistance with his
Auburn Network business. For example, in the summer of 2013, Hubbard attended
the Paris Air Show. Hubbard solicited lobbyist Minda Riley Campbell for
assistance with setting up meetings with prospective clients while in Paris.
Campbell agreed to do so and provided the assistance. See AG0527448, attached
as Exhibit 72 to States Feb. 27th 2015 Response (I have started a list of
appointments for you while in Paris.); Email from Campbell to Hubbard,
AG0749953-56, attached as Exhibit 33 (Should have your Paris schedule later
this week. It is going to be a great trip!).31 Hubbard wrote to Campbell: I will go
wherever you think is best. (Id.). Campbell set up a meeting in Paris for Hubbard
with Mr. Tan Pheng Hock, the President of Singapore Technologies Engineering

31

See also AG0742372-75, attached as Exhibit 34 (Campbells Agenda for Hubbard at


the Paris Air Show).
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Ltd., an international aerospace company. Id.; see also AG0527452, attached as


Exhibit 73 to States Feb. 27th 2015 Response.
In fact, Campbell actually coordinated and scheduled Hubbards entire 2013
Paris Air Show itinerary, including his transportation. See AG0525651 (Campbell
email to Hubbard), attached as Exhibit 74 to States Feb. 27th 2015 Response
(Please find attached the Speakers schedule for Paris. The car information is
being worked out right now.). Campbell also obtained tickets for Hubbard to
attend an exclusive Tea at the Ritz. See AG0749674, attached as Exhibit 75 to
States Feb. 27th 2015 Response. Campbell sent Hubbard the final schedule with
details on June 13, 2013. AG0742371, attached as Exhibit 76 to States Feb. 27th
2015 Response.32
Hubbard also solicited Billy Canary, the chief lobbyist and Executive
Director of the BCA, to assist him with obtaining new clients for Auburn Network.
See AG0583812-21, attached as Exhibit 35 (Hubbard writes: Canary helping me
line up Chamber visits and breakfasts with CEO-types.). On one occasion,
Hubbard accompanied Canary to Washington, D.C. to meet with potential new
clients. Hubbard summarized the trip in an email to Brooke as follows: I am going
to DC with Billy [Canary] next week to visit some folks, including FedEx and the
32

Similarly, Campbell helped Hubbard obtain an invitation to the Mobile Bay


Aerospace Reception to help him with networking. AG0750107-09, attached as Exhibit 36
(Campbell writes: Have you received an invite to this? You should try to go. It is going to be
great networking. I feel sure they would love to have the Speaker!) (emphasis added).
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U.S. Chamber of Commerce. AGdoc0222546 (email from Hubbard to Brooke) ,


attached as Exhibit 77 to States Feb. 27th 2015 Response. Hubbard later reported
on his meeting with FedEx to Riley and said: Just met with FedEx. They are
spooked about me being an elected official. Dont think they will do anything with
me. At least I made a contact with their top governmental affairs person. They
said they would look for opportunities, but not hopeful. AG0570048, attached as
Exhibit 78 to States Feb. 27th 2015 Response.
Canarys assistance also extended to helping market and sell Hubbards
book, Storming the State House. The D.C. meetings Canary set up for Hubbard
also included meetings intended to be extremely beneficial for the marketing of
Storming the State House. AG0243637-AG0243640, attached as Exhibit 79 to
States Feb. 27th 2015 Response. Hubbard further solicited Canary for marketing
help by requesting that Canary seek assistance from political consultant Karl Rove:
Bill: Do you think it would be possible to plant a seed with Karl [Rove]
(probably a little closer to October 2) for him to make mention of
[Storming the State House] during his remarks at BCA? It would be a very
nice plug and would certainly raise my stature with the folks in the audience
for him to mention me
AG0243349, attached as Exhibit 80 to States Feb. 27th 2015 Response.
In addition to those meetings, Canary also arranged a meeting with Rainey
Foster, a partner in a multinational business, Leading Authorities, Inc. Canary
email to Foster AG0351277, attached as Exhibit 81 to States Feb. 27th 2015
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Response (Joining us for that discussion would be our Speaker Mike Hubbard.).
Canary also helped Hubbards Auburn Network business by setting up meetings
with several CEOs from around the state for the Speaker. AG0243272, attached
as Exhibit 82 to States Feb. 27th 2015 Response.
Hubbard also directly solicited Canarys fellow BCA Board member, Will
Brooke, for the same assistance. AGdoc0222546, attached as Exhibit 83 to States
Feb. 27th 2015 Response. Hubbard emailed his request to Brooke: Please let me
know if you have had any ideas I might explore with companies in Birmingham or
elsewhere that might have a need for a consultant with my skills. We also
discussed the possibility of a corporate board where I might be helpful in opening
doors. Brooke later responded to tell Hubbard that he had acted on Hubbards
request and that Brooke took part in a few discussions in Birmingham, but
nothing has surfaced yet. Id.
Hubbard later followed up with Brooke on January 26, 2012 and asked: did
you ever run across any company or companies interested in my services? My
employment [with IMG] runs out on March 31. AGdoc0222026-27, attached as
Exhibit 37. In that email, Hubbard expressed his frustration that the business
community was very reluctant to work with him: Its ironic that I was the
architect of putting a pro-business legislature in place yet businesses seem to
want to avoid any personal association with me like the plague!. (Id.).
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Hubbard later followed up with Brooke on his request for help finding new
clients for Auburn Network and reminded Brooke that he had previously used his
public office to help Brooke with a personal matter:
I enjoyed visiting with [Brookes wife] Maggie at the State House last
week and pledged my support again for the Boys and Girls Clubs. My goal
is to make sure she is never unhappy with me! I have not pestered you
because I know you are extremely busy, but thought Id check with you one
more time regarding any potential business clients for my company,
Auburn Network, Inc. I have signed up Southeast Alabama Gas to assist
them with marketing and economic development which helps, but my
employment with IMG ends at the end of this month so I am getting very
close to hitting the panic button... It is ironic that my quest to change
history and [g]ive Alabama a pro-business legislature has resulted in issues
in my own personal business life. It is amazing how folks who urged me to
be the leader to overthrow the bad guys in Montgomery now dont want to
talk with me.
AGdoc0222423, attached as Exhibit 84 to States Feb. 27th 2015 Response
(emphasis added).
As discussed in Section III.E above, Hubbard later told Brooke that he was
considering resigning as Speaker due to his financial problems. Just over one week
before the IMG income would end in March 2013, Hubbard again expressed to
Brooke his displeasure with the business community and their unwillingness to
work with him:
I will make it through this session, try to do as much good as I can, and
make a decision as to what to do. It is amazing, and quite disappointing, that
after the sacrifices Ive made personally and professionally to finally get
Alabama a pro-business legislature, no one in the business community is
willing to work with me professionally to keep me there. Maybe Im too
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much of a lightning rod. I suppose, as they say, no good deed goes


unpunished.
AGdoc0222864-65, attached as Exhibit 38 (emphasis added). Brooke responded:
No, Mike, thats not it. I think that folks are afraid to mess up, on either their or
your side of the equation. (Id.)
Accordingly, Counts 20-23 charge Hubbard with soliciting and receiving
assistance in obtaining new clients for his company Auburn Network from Riley,
Campbell, Canary, and Brooke. Additionally, as part of Count 23, Hubbard is
charged with soliciting and receiving the free financial rescue plan for Craftmaster
from Brooke described in Section III.E above. As to Count 23, Hubbard reiterates
his previous argument that Brooke is not a principal under the Ethics Act. Motion
at 61-62. The State reincorporates its previous refutation of that argument in
Section III.E.iii here. Hubbard further challenges Counts 20-22 by arguing that the
assistance that the individuals identified in those counts provided him was not a
thing of value because (a) it fell within the friendship exception, and (b)
assistance in obtaining clients is not a thing of value under the Ethics Act.
Hubbards arguments are not purely legal, and instead present factual questions
that must be resolved, if at all, by a jury.

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i.

Hubbards emails with Riley, Campbell, Canary, and


Brooke demonstrate that they did not assist him in finding
clients solely out of friendship.

The Ethics Act states that a thing of value does not include [a]nything
given by a friend of the recipient under circumstances which make it clear that it is
motivated by a friendship and not given because of the recipients official
position. Ala. Code 36-25-1(34)(b)(3). Hubbard argues that his preexisting
friendships with Riley, Campbell, and Canary mean that the assistance they
provided him is not a thing of value, under the friendship exception. Motion at 5556, 58-59, 60. The friendship exception, however, does not turn on whether these
individuals were Hubbards friends. Instead, it focuses on whether the
circumstances surrounding their assistance make it clear that it was motivated
by friendship and not because he was a legislator and Speaker. As documented in
the emails quoted above, Hubbard repeatedly referenced his need for the assistance
in order to maintain his public position, and did it to such an extent that Riley
expressly told him quit telling people you may have to step down as speaker due
to financial concerns. AG0569790, attached as Exhibit 60 to States Feb. 27th
2015 Response. The emails also document that these individuals had regular,
substantive interaction with Hubbard in his role as Speaker and wanted him to
remain in his public office, which Hubbard threatened to leave if he did not get the
financial help he solicited.
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Given these facts, it seems clear that the assistance they provided was not
solely motivated by friendship without regard to Hubbards public position, but
instead was motivated by a desire to keep a friend in the Speakers chair so that
they could continue to have access to the person in that powerful public position.
In any event, that is an issue that ultimately must be determined by a jury at trial.
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.

The Ethics Act defines a thing of value to include, in relevant part, any
gift, benefit, favor, service, or other item of monetary value. Ala. Code 3625-1(34). Hubbard contends that the failure of the definition to specifically include
assistance with obtaining new clients or to include a specific class of things
within which such assistance would fall means that the assistance is not a thing of
value. Motion at 56-58, 59, 61.33 Contrary to Hubbards contention, however, the
assistance in finding clients provided by Riley, Campbell, Canary, and Brooke, as
well as the Craftmaster free financial rescue plan Brooke provided to Hubbard,
easily fit within the definition of thing of value as gifts, benefits, favors, services or
other items of monetary value.

Further, Hubbards persistent solicitations of

assistance from these individuals, his statements that failure to find new clients
33

Hubbards argument regarding the States interpretation of the statute as it applies to


others, Motion at 61, is addressed and refuted in the States Response to Hubbards Motion to
Dismiss Based on Selective and Vindictive Prosecution filed contemporaneously herewith.
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would mean personal and political ruin, his complaints that the business
community was avoiding him like the plague, and his other statements in emails
quoted above demonstrate that the assistance provided was clearly valuable to him.
At the very least, since these are not purely legal questions, then this is ultimately a
factual issue that must be resolved, if at all, by a jury.

CONCLUSION
Just as he once championed the passage of reforms to the Ethics Act,
Hubbard now champions the Ethics Acts downfall. While the defense claims this
fact is irrelevant, it is legally significant. Hubbard was instrumental in passing
many of the laws he has now been charged with violating, which means he knew,
or at least should have known, what actions crossed the line and which did not.
Further, the fact that Hubbard included Ethics Law reform in the GOPs 2010
Handshake with Alabama agenda specifically in response to State government
corruption scandals further shows that he cannot possibly claim that the ethics
reforms passed in the 2010 special session under his Speakership were not properly
tailored to serve the States interest in preventing corruption. As such, his claim
that these laws are now vague and overbroad rings hollow.
The same is true for Hubbards novel argument that he may serve the people
in the Legislature, while at the same time be paid as a lobbyist to roll out the red
carpet to his clients. Hubbard knew that ending corruption in Montgomery
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required limiting the influence of lobbyists and their principals. Indeed, in an


editorial published one week after the 2010 special session ended, Hubbard wrote:
When I was elected as the first Republican House speaker in 136 years, I set
as our goal maintaining the tradition of two words that are so important they
appear in the seal of the Alabama House of Representatives. Vox Populi is a
Latin phrase that translates literally into "voice of the people."
The phrase does not say voice of the special interests or voice of the
powerful or voice of the campaign contributors, but voice of all of the
people. Whether you are Republican or Democrat, black or white, rich or
poor, we will work to ensure that your voice is heard in the Alabama House
chamber.
Alabama Voices: Legislature took historic steps in special session, Mike
Hubbard, Montgomery Advertiser, December 18, 2010. Now that he has been
indicted, he claims that the Ethics Laws cannot protect the right of the people to
not have their voices drowned out by powerful special interests because the
Constitution protects his free speech rights to make money off his public office.
But the laws prohibiting him from doing so were drafted by Hubbard and his
colleagues narrowly so as to protect both his and their First Amendment rights.
Instead of infringing on those rights, the laws placed legitimate restrictions on
public servants to prevent corruption or its appearance by forbidding legislators
from taking money from lobbyists or becoming legislator lobbyists themselves.
Nowhere in his brief does Hubbard deny that he committed the acts
underlying his indictment or that he enriched himself or companies he owns by
millions of dollars while serving as Alabama GOP party chair or speaker. Instead,
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the vast majority of his brief challenges whether the States evidence is sufficient
to support the counts in the indictment. Such challenges, which are not even a
proper subject for a pretrial motion to dismiss, are not enough to require dismissal
of the 23 charges in the indictment, especially since this Court has already upheld
the legal sufficiency of the indictment in denying Hubbards Motion for More
Definite Statement.
Accordingly, the State of Alabama respectfully requests that this Court
uphold the Ethics Act as constitutional, deny Hubbards motion to dismiss, and
allow a jury to resolve the question of Hubbards guilt or innocence.
Respectfully submitted this 21st day of September 2015.

W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Miles M. Hart
Miles M. Hart
Deputy Attorney General
Chief, Special Prosecutions Division
mhart@ago.state.al.us

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OF COUNSEL:
W. Van Davis
Supernumerary District Attorney,
Acting Attorney General
423 23rd St. North
Pell City, AL 35125-1740
vandclaw@centurylink.net
Michael B. Duffy
Deputy Attorney General
mduffy@ago.state.al.us
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, AL 36130-0152
(334) 242-7300
(334) 242-4890 FAX

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CERTIFICATE OF SERVICE
I hereby certify that I have, this the 21st day of September 2015,
electronically filed the foregoing using the AlaFile system which will send
notification of such filing to the following registered persons, and that those
persons not registered with the AlaFile system were served a copy of the foregoing
by U. S. mail:
J. Mark White, Esq.
Augusta Dowd, Esq.
William Bowen, Esq.
William Chambers Waller, Esq.
White Arnold & Dowd P.C.
2025 Third Avenue North, Suite 500
Birmingham, AL 35203
Phone: (205) 323-1888
FAX: (205) 323-8907
mwhite@whitearnolddowd.com
adowd@whitearnolddowd.com
wmbowen@whitearnolddowd.com
cwaller@whitearnolddowd.com
R. Lance Bell
Trussell Funderburg Rea & Bell, PC
1905 1st Ave South
Pell City, AL 35125-1611
lance@tfrblaw.com
Phillip E. Adams, Jr.
Adams White Oliver Short & Forbus LLP
205 S 9th Street
Opelika, Alabama 36801
Phone: (334) 745-6466
Fax: (334) 749-2800
padams@adamswhite.com
/s/ Miles M. Hart
Deputy Attorney General

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