An Example Of Troy King’s Work

Got this in my e-mail:

Dear Friend:

On Tuesday, November 7th, I am asking you to vote for John Tyson, Jr., Attorney General.

I support Mr. Tyson, because the state of Alabama needs an Attorney General who will fight crime and not do the bidding of the special interest groups in Montgomery.

In August of 2001, I was the first conservationist in years to be appointed to the Alabama Environmental Management Commission. I was appointed to the “ecologist” position on the board.

Subsequently, the following spring of 2002, my appointment was unanimously approved by the Alabama State Senate.

On October 19, 2004, I made the motion to dismiss James Warr as the director of the Alabama Department of Environmental Management (ADEM).  That motion was supported by a majority of the Commission members.  A difficult decision, our action was further exacerbated by Mr. Warr declaring himself “acting” director, despite being dismissed by the Commission. The move to dismiss Mr. Warr also upset many special interest groups who do business with ADEM.

On Friday, October 29th, Rep. Steve McMillian, twin brother of John McMillian, longtime director of the Alabama Forestry Association requested an Attorney General’s Opinion questioning my qualifications.

On election day, Tuesday, November 2, 2004, taking only 2 business days, in lieu of doing his job enforcing the election laws of the state, Attorney General Troy King found time to issue an AG opinion answering Rep. McMillian’s question, casting doubt on my qualifications to serve on the Alabama Environmental Management Commission.

His opinion claimed that an ecologist, must have a degree in ecology. My degree was in environmental studies from the University of Alabama.  The undisputed evidence showed that when the law creating ADEM in 1982 was passed, there were no ecology degrees offered in the state of Alabama by an accredited college.  Neither were ecology degrees offered in 1988, the year I graduated or 2004, the year the AG opinion was written.

Be mindful, this opinion was “written” in 2 business days.

Most AG opinions take at least a month, to construct an opinion, and in many cases much longer.  In fact, the Environmental Management Commission had requested an AG’s opinion from Mr. King on October 19, 2004, (before the McMillian request) concerning clarification on our Chair and Vice-Chair position.  An opinion for that question did not get answered until February.

On December 3rd, using the AG’s Opinion as the reason, two individuals brought a quo warranto action against me, stating I was not qualified to serve on the Commission.  Unsurprisingly, a fellow commissioner who voted to dismiss the director also had a quo warranto action brought against him in November of 2004.

These actions set into motion, the “probing” of my personal life that included my tax returns, personnel files from one of my places of work, my college transcript and lengthy depositions.

After a year and half, we did prevail, but I was fortunate to have an attorney that worked for free. He estimates, my attorney fees would have amounted to over $25,000.  To place that into perspective, the Commission position pays $100 a meeting.  We normally hold 6 meetings a year. 

Independent state commissions and boards are responsible for holding state government accountable. And Lord knows somebody needs to hold our state bureaucracies accountable.

What does it say about the power of Montgomery special interest groups when they can retaliate against a commissioner or state board members they disagree with, using a constitutional office of the state? Especially the office charged with enforcing the law.

From my experience the attorney general’s office is too important to leave to someone who plays to this kind of politics. I strongly urge you to vote for John Tyson, Jr., Tuesday, November 7th.

Best Wishes,

Pat Byington

I commented on this case here, concluding:

Why did King interpret the statute in such a ridiculous manner? Maybe he wanted a particular outcome. Maybe he lacks interpretive skills. Biased or incompetent; either way, his error was a major factor in this wasteful lawsuit. Either way, his performance in this case does not inspire confidence in him for future cases.

Interesting Quote

From Gayden v. State, 80 So.2d 501, 502 (Ala. 1955).  

[The principle that no man shall be deprived of his liberty or property except by ‘the law of the land’ is said to be more ancient than written Constitutions, ‘and breathes so palpably of exact justice that it needs no formulation in the organic law.’ ] It is but an expression of the fundamental principle that inspired civilized man to form a government, the ultimate purpose of which is to protect the individual in working out his destiny, and finds expression in our Constitution in these words: ‘That in all criminal prosecutions the accused has a right to be heard by himself and counsel, or either;  and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law.’  Constitution of Alabama 1901, §§ 6, 13.

“The manifest purposes of the quoted constitutional provisions, where life, liberty, and property are affected, are to secure the citizen against the arbitrary action of those in authority, and to place him under the protection of the law.  And that provision and the others of our Bill of Rights ‘are to be largely and liberally construed in favor of the citizen.’

“Largely and liberally construed in favor of the citizen.” What do you suppose would happen if any of the people seeking judicial office in this election were to publicly affirm that language?   

Campaign Finance Lawsuit

If you haven’t been following it, according to the papers (e.g. here, here, here and here) the story is basically as follows.

State Senator Gerald “DINO” Dial lost the Democratic primary election to Kim Benefield. Benefield had received almost $300,000 in support from four other Democrats: Senate President Pro Tem Lowell Barron of Fyffe, Senate Majority Leader Z eb Little of Cullman, and Senate budget committee chairmen Hank Sanders of Selma and Roger Bedford of Russellville.

Those four could afford to spend such large sums on another race because none of them had any opposition in their own primaries. Being unopposed also meant, according to this AG’s opinion, that they did not have to file financial disclosure forms before the primary elections.

Dino wanted revenge, and so he complained to the Secretary of State that the four had not filed their discolsure forms. The SOS, relying on the AG opinion, said they did not have to file them. Dino then asked for a new AG opinion on the issue. He got it. In this opinion, Troy King said that in some situations the reports must be filed even when there is no opposition. However, King also recognized that plenty of people had relied on the old opinion, so he said they would enforce the new one prospectively.

Since then, Mark Montiel has filed a lawsuit seeking to remove the four Democrats from the ballot because they failed to file the disclosure forms. Dino says he had nothing to do with the suit. They are currently fighting over the proper forum for the suit, so it looks like whatever occurs won’t happen until after the elections.

There are plenty of interesting parts to this story.

First, and most obviously, the motives are nothing but the worst kind of party politics. If Montiel was concerned about the law, he would have also included the Republicans who allegedly did the same thing as these four Democrats: Senate Minority Leader Jabo Waggoner of Vestavia Hills, Steve French of Birmingham, Harri Anne Smith of Slocomb and Dell Marsh of Anniston. Montiel was a candidate for AG, and early in the race I gave him my half-hearted support. Big mistake; this guy is a tool.

Second, the motives don’t have any bearing on the merits of the suit. Accusations of bias and foul play are good for the press, and important to remember if Montiel ever runs for office again, but they don’t change the facts or the law.

Finally, there are the legal issues. Until now, everyone has understood that there is no need to report when there is no primary opponent. Section 22A-17-8 of the code says candidates have to file disclosure forms:

Forty-five days before and between 10 and five days before the date of any election for which a political committee receives contributions or makes expenditures with a view toward influencing such election’s result.

If a candidate is unopposed in the party primary, that candidate is the party’s nominee. There won’t even be an election. Hence, the funds are not received or spent “with a view towards influencing such election’s result.” Also, the whole purpose of disclosure is to inform the voters. So if there is no vote, there is no need for disclosure. Thus, until now, no-one thought that unopposed candidates needed to file the forms.

I’m not sure I completely follow the new AG opinion, but I think what it says is that while the previous understanding is generally correct, there are exceptions:

A candidate with no primary opponent would, however, be required to file disclosure reports if the candidate’s principal campaign committee is receiving contributions and/or making expenditures that reach the threshold amount “with a view toward influencing” the results of his or another candidate’s election. For example, a candidate may raise money for his or her campaign in anticipa­tion of the primary election and actually receive contributions that reach the threshold amount before the filing deadline for the 45-day report. The candidate must file a 45-day report before the primary election to disclose the contribu­tions received and report any expenditures made during this reporting period. This report must be filed even if the candidate does not have opposition in the primary election. It is the fact that the contributions were received by the can­didate for the purpose of influencing the primary election results that triggers the reporting requirement. Similarly, if a candidate expended funds at or in excess of the threshold amount for the purpose of influencing the primary elec­tion results, whether to influence the candidate’s own election or another can­didate’s election, that candidate would have to file disclosure reports.

What that means is that when, as in this case, an unopposed candidate spends money on another primary, the money has been spent with a view towards influencing that primary and therefore triggers the disclosure requirements.

So who is correct? I don’t know. This is going to be a thorny issue of statutory construction. My guess is that the legislature meant to require candidates to disclose finances related to their own elections. I don’t see a purpose in requiring disclosure when the candidate has done nothing but spend money on another person’s campaign. In that situation, the candidate is more like a normal political donor or voter than a candidate.

Whatever the outcome, I think Troy King was right that it should apply prospectively. This is a confusing issue, and it would be unfair to penalize anyone who acted in reliance on the old interpretation.