Alabama Court of Criminal Appeals to rule on ethics commissioner rewriting ethics law

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When faced with a single goal, in this case, embarrass Donald Trump’s administration; there is little doubt that one would choose the path of least resistance. That’s exactly what Cynthia Propst Raulston did when she pursued charges against Trump’s southeast regional director for the Environmental Protection Agency. Unfortunately for her, her weapon of choice, the Alabama Ethics Law, is clear – there’s a straight line from Point A (a complaint) to Point B (a resolution). 

By her actions, skipping the legally declared path for resolving a complaint, Raulston unilaterally declared herself and her office as powerful as that of Attorney General Steve Marshall. Let me explain how. 

The Alabama Ethics law is written without much room for interpretation. The “shall'” versus the “may” doesn’t leave room for guessing. Any first-year law student can tell you that.

The process as described by the Ethics office requires a commission vote prior to going to a grand jury. Don’t believe me? Here are the exact words from the Ethics Commission website and I quote: 

Upon investigation a complaint may be:

Closed because the Ethics Commission does not have jurisdiction regarding the alleged wrongdoing or the Statute of Limitations has expired.

Dismissed due to lack of evidence to support the complaint.

>Presented to Commission for Determination of Probable Cause.

“Presented to the commission for determination of probable cause.” Nope, no ambiguity there. I don’t even need a law degree to understand the process. 

Going to the commission is an important step of due process of those facing complaints given the commission is not controlled by any one individual and the commission itself is charged with enforcing the ethics law. The makeup of the commission’s members is 2 appointees by the governor, 2 by the speaker of the house and 1 by the lieutenant governor. Each of which after being appointed has to be confirmed by the state senate. The current commissioners are: 

It was these five members Raulston circumvented by going straight to the grand jury.

Read Anderton’s declaration, as filed, below:

While her gumption and creativity could be lauded the effects of letting it stand presents a potentially chilling reality for the state of Alabama. Every time a new precedent is made chipping away at the structure of the law it weakens the law itself. This weakened foundation means that rouge prosecutors can go after just about anyone at any time in any manner they decide but more so the constant ambiguity also lends to the defense of those in the future who may seek an out when they do in fact break the law. 

Don’t for a moment think anyone is immune to the consequences of the decision before the court now. Due process is as important to the rule-followers as the rule-breakers because without it the process to determine which is which gets very fuzzy. 

The law § 36-25-4 says so very clearly, “In all matters that come before the commission concerning a complaint on an individual, the laws of due process shall apply.”

The biggest problem in all of this is that either Propst Raulston unilaterally decided the rules didn’t apply to her or she did so with the support of the commissioners who have been silent to date.  

Right now the Alabama Court of Criminal Appeals has in front of them a motion to right the wrong made by Propst Raulston and the Alabama Ethics Commission. Will they choose to take it?