) ) ) ) ) )
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Michael G. Hubbard (“Hubbard”), by and through the undersigned counsel, hereby submits
this supplement to his previous objections to the legitimacy of the Lee County Special Grand Jury
(“the Special Grand Jury”) and the appointment of supernumerary district attorney William Van
Davis (“Davis”) to “oversee” the Special Grand Jury. Hubbard has raised these objections in oral
argument and in the following motions which remain under seal: Motion to Dismiss Indictment:
Special Grand Jury Not Properly Impaneled (filed under seal Dec. 19, 2014); Supplement to April
30, 2015 Proffer in Support of Hubbard’s Motion to Dismiss Indictment: Special Grand Jury Not
Properly Impaneled (filed under seal May 7, 2015).
The bases for Hubbard’s objections are: (1) Attorney General Luther Strange (“General
Strange”) recused himself and his former Chief Deputy Attorney General Kevin Turner from all
matters relating to the Special Grand Jury; (2) The letter of General Strange dated January 31,
2013, purporting to appoint Davis “to assume oversight of the State’s interests in the current
investigative matters relating to State Representative Mike Hubbard” (“the Appointment Letter,”
attached as Exhibit A) is void and without legal authority or merit; (3) Davis is statutorily
disqualified from assuming any authority by General Strange’s appointment because he is engaged
in the active practice of law; and (4) Miles Matthew Hart (“Hart”) did not have the authority to
ELECTRONICALLY FILED 6/10/2015 1:36 PM
43-CC-2014-000565.00 CIRCUIT COURT OF
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administer oaths to witnesses before the Special Grand Jury.
I. Procedural Background On May 20, 2014, in a pretrial hearing on the defendant’s motion to dismiss in the case of
State v. Felix Barry Moore, Lee County Circuit Court, Case No. CC-2014-000226, the State
represented for the first time that there existed written documentation for the appointment of Davis:
[MR. BAXLEY:] … If something exists where they have properly appointed somebody, then why don’t they bring it in? I think it screams out that it doesn’t exist is the reason they filed these motions to quash. I know what your Circuit Clerk told me when I told her the subpoena was coming. … I know what she told me, her testimony would be about what she has got in her office giving somebody the authority being there. There is – the code sections that they cite they have got to be invoked just like a commission when – when the people elect somebody, a District Attorney, or somebody is appointed, an Assistant District Attorney, or they elect them Attorney General. If somebody is appointed, an Assistant Attorney General. You have got to go one step further and have credentials and commissions and make a record of it so that – and so I submit to you that hasn’t been done. THE COURT: Okay. Any response to that? MR. DUFFY: Just two things really quickly, Your Honor. The first is, as I said before I sat down last time, we – we do have documentation that we could show Your Honor, but we – we would appreciate the opportunity to show it to you ex parte in camera before to – to allow Your Honor to rule on the motion to dismiss or – or determine whether you thought it should be disclosed to the other side, but we do have some arguments about why that’s confidential at the moment. So we – in short, we do have a letter from the Attorney General to Mr. Davis that we would be happy to show Your Honor. THE COURT: And that would be a letter as set forth in [Ala. Code §] 36-15-15? MR. DUFFY: That’s correct.
May 20, 2014 Moore Hearing Tr. 62:12-64:15 (emphasis added).
In the State’s Response to Motion to Dismiss in the Moore case, the State primarily relied
on Ala. Code § 36-15-15 as General Strange’s authority to direct Davis, a supernumerary district
attorney, to handle all matters relating to the Special Grand Jury. See State’s Response to Motion
to Dismiss, May 8, 2014, State v. Felix Barry Moore, CC-2014-226.
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In this Court’s order of June 13, 2014, denying Mr. Moore’s motion to dismiss and motion
to quash, this Court relied on three code sections to support Davis’ appointment:
As to the matter of the authority of Attorneys Davis, Michael [sic] Hart and William Duffy to empanel the Grand Jury which indicted the defendant (paragraphs 28-33), the motion to dismiss is denied. The Court accepted an in camera document from the State which support’s [sic] the position that Mr. Davis was appointed by the Attorney General to assume oversight of a legislative corruption investigation on or around January 31st, 2013, as well as any criminal matters arising from that investigation. Furthermore, the letter informs Mr. Davis that the chief of the special prosecution division will report directly to him. These actions appear to be supported by the authority of sections 12-17-184(10), 12-17-216, and 36-15-15 of the Code of Alabama. A redacted copy of the letter which was filed under seal is attached to this order as Exhibit A. Accordingly, the Court finds that the subpoena duces tecum addressed to the Custodian of Records, Office of the Attorney General is due to be quashed.
Order Regarding Motion to Dismiss and Motion to Quash, June 13, 2014, State v. Felix Barry
Moore, CC-2014-226. The redacted copy of the Appointment Letter attached to the Order was the
first time the Appointment Letter was available to any defendant in any case.
Since that time, this Court has relied on the State’s representation that the Appointment
Letter submitted to the Court in the Moore case was the original and the only document evidencing
the appointment of Davis and was “the authority” for Davis’ appointment. From the Hearing of
April 30, 2015 in this case:
MR. DUFFY: Your -- Your Honor, I think the original letter with the -- the ink on it, I think that's what we submitted in the -- in the Moore case. I don't think we submitted a copy. I think we submitted the original signed –
THE REPORTER: I think so.
THE COURT: Okay.
Apr. 30, 2015 Hearing Tr. 273:9-17.
The Appointment Letter and General Strange’s Response to Deposition via Written
Interrogatories (“Strange’s Response”) state that General Strange and his former Chief Deputy
Attorney General Kevin Turner disqualified themselves from serving as Attorney General and
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Chief Deputy Attorney General in all matters relating to the Special Grand Jury. The Appointment
Letter states that General Strange directed his administrative personnel to “isolate” him and Turner
“from access to files associated with the investigation.” General Strange clearly indicates in his
interrogatory responses that he “removed [himself] from substantive involvement in the grand
jury’s investigation and criminal prosecutions arising from that investigation.” Strange’s
Response, Response No. 43. Therefore, according to these responses, neither General Strange nor
the Chief Deputy Attorney General should have had any substantive involvement in the Special
Grand Jury or Hubbard prosecution after the date of the Appointment Letter. Thus, after January
31, 2013, there was neither an Attorney General nor a Chief Deputy Attorney General overseeing
this matter; in other words, there was a vacancy in the office of the Attorney General and Chief
Deputy Attorney General.
II. General Strange Did Not Properly Appoint Davis to Oversee Matters Relating to the Special Grand Jury
A. Only the Governor can appoint an “Acting Attorney General”
This argument is briefed in full in Hubbard’s Motion to Dismiss Indictment: Special Grand
Jury Not Properly Impaneled (filed December 19, 2014), and for the sake of brevity Hubbard will
not repeat that argument in full here. However, it bears repeating that Howard P. Walthall, Sr.,
Professor at Samford University’s Cumberland School of law and a premier scholar on Alabama
constitutional law, opined that “Alabama Constitution sec. 136 provides the exclusive mechanism
for appointment of an ‘Acting Attorney-General.’” (Affidavit of Howard P. Walthall, attached
hereto as Exhibit B).1
1 Art. V, § 136 of the Alabama Constitution, titled “Vacancy in office or unsoundness of mind of attorney-general, state auditor, secretary of state, state treasurer, or commissioner of agriculture and industries,” reads:
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Under section 136, a vacancy “from any cause” is the only circumstance that triggers the appointment of an Acting Attorney-General, who then serves until whatever disability caused the vacancy is removed (or a successor is elected.)
More importantly, in that circumstance it is the governor who exercises the power to fill the vacancy by appointment of an “Acting Attorney-General.” Nothing in the Alabama Constitution grants that power to the predecessor attorney general, or to any other officer.
(Id.).
Defense counsel also recently became aware of the appointment of an acting attorney
general in Alabama in addition to those historical examples cited in Hubbard’s Motion to Dismiss
Indictment: Special Grand Jury Not Properly Impaneled (filed Dec. 19, 2014). As best defense
counsel can determine, the most recent appointment of an “acting attorney general” in Alabama
occurred in 2004 when former Governor Bob Riley appointed Richard Allen to serve as “Acting
Attorney General” to fill the vacancy created when then-Attorney General William Pryor was
appointed as a judge on the Eleventh Circuit Court of Appeals. In an official press release dated
February 20, 2004, then-Governor Riley stated “I have designated Chief Deputy Attorney General
Richard Allen as Acting Attorney General until such time as a permanent appointment is made,
which will be in the next few weeks.”2
The State previously has argued that General Strange’s “recusal” from this matter did not
Should the office of attorney-general, state auditor, secretary of state, state treasurer, or commissioner of agriculture and industries become vacant from any cause, the governor shall fill such vacancy until the disability is removed or a successor elected and qualified. In case any of said officers shall become of unsound mind, such unsoundness shall be ascertained by the supreme court upon the suggestion of the governor.
Ala. Const. Art. V, § 136 (emphasis added). 2 A copy of the press release is attached as Exhibit C.
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mean the Office of the Attorney General was “vacated,” as “recusal” is not specifically listed in
Ala. Code § 36-9-1.3 However, Governor Riley’s press release makes no mention of Judge Pryor’s
office becoming vacant for any of the reasons listed in § 36-9-1. Moreover, it was Governor Riley,
not then-Attorney General Pryor, who appointed the Acting Attorney General, as Governor Riley
was the only person with the authority to do so under Ala. Const. Art. V. § 136.
Additionally, the Appointment Letter and General Strange’s interrogatory responses make
clear that the now-former Chief Deputy Attorney General, Kevin Turner, was also recused from
all matters relating to the Special Grand Jury. The Appointment Letter states “I am also directing
my administrative personnel to take appropriate action to isolate me and the Chief Deputy
Attorney General from access to files associated with the investigation.” (emphasis added).
General Strange’s interrogatory responses specifically indicate that “Kevin Turner, Chief Deputy
Attorney General,” is recused from this matter. See Strange’s Response, Response No. 11.
Pursuant to Ala. Code § 36-15-5.2, the Chief Deputy Attorney General is the only person
authorized, absent action by the Governor, to assume the position of Attorney General when the
3 According to Ala. Code § 36-9-1, titled “How offices vacated generally,” any office in the State is “vacated”:
(1) By the death of the incumbent; (2) By the resignation of the incumbent, except in such cases as are excepted by law; (3) By the incumbent's ceasing to be a resident of the state or of the division, district, circuit or county for which he was elected or appointed; (4) By the decision of a competent tribunal declaring the election or appointment of the incumbent void or his office vacant; (5) By the act of the Legislature abridging the term of office of the incumbent, when the same is not fixed by the constitution; and (6) In such other cases as are or may be declared by law.
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office becomes vacant.4 When General Strange and Turner recused themselves from the Special
Grand Jury investigation the office of the Alabama Attorney General effectively became vacant
with no one legally available to assume the position of Attorney General in the matter absent
action by the Governor.
B. The Appointment Letter is without legal merit as General Strange did not properly appoint Davis to perform any function.
Purportedly in January 2013, Attorney General Strange attempted to appoint Davis to
oversee all matters relating to the Special Grand Jury pursuant to Ala. Code § 36-15-15. Notably,
the Appointment Letter cited Ala. Code § 36-15-15 as the only authority for the Attorney
General’s appointment of Davis. The Appointment Letter states:
I appreciate your agreement, pursuant to Section 36-15-15 of the Code of Alabama, to assume oversight of the State’s interests in the current investigative matters relating to State representative Mike Hubbard, to include all criminal matters arising from that investigation.
I am directing the Chief of my Special Prosecutions Division, who is supervising the investigation, to report directly to you regarding this matter. I am also directing my administrative personnel to take appropriate action to isolate me and the Chief Deputy Attorney General from access to files associated with the investigation. By this letter, you are hereby authorized to exercise the full powers vested in me in those matters.
(emphasis added). However, in this Court’s order of June 13, 2014 denying Barry Moore’s motion
to dismiss and motion to quash, this Court relied on three sections of the Code of Alabama as
authority for the appointment: §§ 36-15-15, 12-17-184(10), and 12-17-216.
4 Ala. Code § 36-15-5.2(b) states “[t]he Chief Deputy Attorney General shall have all the power and authority heretofore or hereafter conferred by law on the Attorney General, which he or she may exercise in the absence of the Attorney General.”
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§ 36-15-155
General Strange’s purported appointment of Davis pursuant to § 36-15-15 is void as both
the legislative history and a reading of § 36-15-15 make clear that this section relates only to
“district attorneys” and not “supernumerary district attorneys.” The legislative history of
§ 36-15-15 confirms that this statute has nothing to do with supernumerary district attorneys. The
present title to § 36-15-15 is “Attorney General may advise or direct district attorney.” The
“credits” to present § 36-15-15 state: “Acts 1915, No. 655, p. 719, § 3; Code 1923, § 860; Code
1940, T. 55, § 236.”
The title to the 1915 legislation dealing with “solicitors” (Ala. Acts 1915, No. 655 (Sept.
22, 1915)) stated:
To further prescribe the authority and duties of the attorney general and of solicitors acting under his authority; and to provide for the employment of special assistants to the attorney general; to provide for the conduct of the office of attorney general, to make an appropriation therefore, and to prescribe the method of its expenditure.
Section 4 of the 1915 Act, in pertinent portion,6 authorized the attorney general, with the
5 Ala. Code § 36-15-15 provides:
The Attorney General shall give the district attorneys of the several circuits any opinion, instruction or advice necessary or proper to aid them in the proper discharge of their duties, either by circular or personal letter, and may direct any district attorney to aid and assist in the investigation or prosecution of any case in which the state is interested, in any other circuit than that of the district attorney so directed. Such district attorney shall have and exercise in such other circuit all the powers and authority imposed by law upon the district attorney of such other circuit, but this section shall not abridge any authority which may have been or which may be vested in the Chief Justice of the Supreme Court, nor shall the Attorney General, or any assistant of the Attorney General, or other person at the instance or request of the Attorney General, be authorized to appear or in any way act in the name of the state in civil action or proceeding by or against any county or county officer in which the State of Alabama has no direct financial interest.
6 The remainder of Section 4 of Act No. 664 dealt with the compensation of the special assistants.
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approval of the Governor, to employ special assistants and Section 7 of the Act made provision
for the absence of the attorney general:
* * *
Section 7. During the absence of the attorney general from the seat of government, or when so directed by him, the assistant attorneys general shall have the authority to render official opinions to such officers as the attorney general is required to advise, and to perform such other duties as may be directed by the attorney general; provided, that during such absence such authority shall be vested in the senior assistant to be designated by the attorney general, and in the absence of the latter also, in the next ranking assistant. The performance of such duties by such assistant shall have the same force and effect as if performed by the attorney general.
Section 4 of Act No. 664. The 1915 Act became effective September 22, 1915.
Alabama Code 1940, T. 55 § 236, provided:
236. (860) Attorney general may advise or direct solicitor. – The attorney general shall give the solicitors of the several circuits any opinion, instruction or advice necessary or proper to aid them in the proper discharge of their duties, either by circular or personal letter, and may direct any solicitor to aid and assist in the investigation or prosecution of any cause in which the state is interested, in any other circuit or county than that of the solicitor so directed. . . .
By constitutional amendment, the office of the circuit solicitor became the office of the
district attorney. Ala. Const. Art. VI, §162 (alternatively cited as AL CONST. Amend. No. 226).
On January 16, 1977, the office of county solicitor was abolished and the functions of the position
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of county solicitor7 were henceforth performed by assistant district attorneys. Ala. Code § 12-12-9.
Section 36-15-15 originated in a legislative act passed in 1915. The office of
supernumerary district attorney was not created until 1953 so it was impossible for the 1915 Act
to include supernumerary district attorneys. There has been no amendment to the 1915 Act which
would include supernumerary district attorneys in statutory language specifically addressing
solicitors and district attorneys. Therefore, § 36-15-15 has nothing to do with supernumerary
district attorneys.
It is undisputed that Davis is a supernumerary district attorney. See Strange’s Response,
Response No. 18 (“[Davis] is a supernumerary district attorney . . . .”).8 Davis took an oath of
office as a supernumerary district attorney on January 3, 2005. To hold the office of
“supernumerary district attorney” one must previously have served as a district attorney, but a
“district attorney” is not the same and does not hold the same office as a supernumerary district
attorney. See State ex rel. Baker v. Evans, 683 So. 2d 421, 422 (Ala. 1996) (discussing the
qualifications for appointment as a supernumerary district attorney); cf. James v. Thompson, 392
So. 2d 1178, 1180 (Ala. 1981) (discussing the purpose of supernumerary status as a legislative
means of “providing compensation to public officials conditioned upon age and length of
service”). Ala. Code § 36-15-15 specifically concerns the Attorney General’s authority to advise
and direct only active “district attorneys;” the statute is silent as to “supernumerary district
attorneys.” Therefore, § 36-15-15 does not give the Attorney General the authority to appoint a
supernumerary district attorney to perform any function.
7 The “county solicitor” was comparable to an “assistant district attorney.” The “circuit solicitor” became the “district attorney.” See Editor’s Notes to Ala. Const. Art. VII, §174 (citing State ex rel. Gallion v. Hammonds, 208 So. 2d 81 (Ala. 1968)). 8 Strange’s responses are attached as Exhibit D.
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General Strange and the State have both contended that the Appointment Letter is the “only
document that exists relating to the appointment of Davis . . . .” Strange’s Response, Response No.
22; see also State’s Response to Hubbard’s Demand and Supplemental Demand for Rule 16.1
Production at 2 (“[T]he State submits that the only document responsive to Hubbard’s demands
[for all documentation regarding Davis’ appointment] is the January 31, 2013 letter from Strange
to Davis . . . .”). At the hearing before this Court on April 15, 2015, Deputy Attorney General
Michael Duffy stated: “Your Honor, I think we should just go ahead and just state for the record
we don’t have any other documents other than that letter.” (April 15, 2015 Hearing Tr. 91:10-14).
Ala. Code § 36-15-15 is the only legal authority cited in the Appointment Letter. Thus, the only
documentation that exists regarding Davis’ “appointment” reflects that General Strange attempted
to appoint Davis based solely upon the authority provided in § 36-15-15, a section which gives
General Strange no authority whatsoever over a supernumerary district attorney.
§ 12-17-184
The Attorney General also has no authority to appoint any supernumerary district attorney
pursuant to Ala. Code § 12-17-184, because that section relates only to “every district attorney and
assistant district attorney.”9 The word “supernumerary” does not appear anywhere in §12-17-184.
As made clear by the above discussion, a supernumerary district attorney is not a district attorney.
District attorneys are addressed in Title 12, Chapter 17, Article 6, Division 1 of the Code of
Alabama. Supernumerary district attorneys are covered in Division 2 of that same Title, Chapter,
and Article. If a supernumerary district attorney were a district attorney there would have been no
9 “It is the duty of every district attorney and assistant district attorney, within the circuit, county, or other territory for which he or she is elected or appointed . . .” Ala. Code § 12-17-184. The remainder of § 12-17-184 sets forth the powers and duties of district attorneys and assistant attorneys general.
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need to furnish separate statutory provisions for each and the separate provisions would have been
superfluous. Such a construction would indicate that the legislature did a useless thing and is
contrary to fundamental rules of statutory construction.
It must be presumed,” however, that statutes are enacted with a “meaningful purpose.” Adams v. Mathis, 350 So.2d 381, 385–86 (Ala.1977). “The Legislature will not be presumed to have done a futile thing in enacting a statute.” Ex parte Watley, 708 So.2d 890, 892 (Ala.1997). See also Ex parte Robinson, 361 So.2d 1113, 1114 (Ala.1978). “‘There is a presumption that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.’” Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.), cert. denied, 708 So.2d 911 (Ala.1997); McDonald v. State, 32 Ala.App. 606, 609, 28 So.2d 805, 807 (1947) (“A legislature will not be presumed to use language without any meaning or application....”).
Ex parte Uniroyal Tire Co., 779 So. 2d 227, 236 (Ala. 2000), overturned on other grounds due
to legislative action.
Section 12-17-210 emphasizes the distinction between the two offices in providing that a
supernumerary district attorney must have formerly served as an elected district attorney (or
solicitor) before being appointed a supernumerary; therefore, the two offices can never be one and
the same. While a supernumerary “shall have and exercise all the duties, power and authority of
district attorneys of the judicial circuits or circuit courts,” a supernumerary only has authority to
act upon the request of “[t]he Governor, any member of the Supreme Court or courts of appeals or
the Attorney General.” Ala. Code § 12-17-216.
§ 12-17-216
The only statute authorizing the Alabama Attorney General to appoint a supernumerary
district attorney is found in § 12-17-216, which provides:
§ 12-17-216. Oath of office; powers and duties.
Supernumerary district attorneys shall take the oath of office prescribed by the constitution for judicial officers and shall have and exercise all the duties, power and authority of district attorneys of the judicial circuits or circuit courts and
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shall, upon request of the Governor, the Chief Justice of the Supreme Court or the Attorney General, conduct investigations, attend any regular, adjourned or special session of any circuit court in any of the judicial circuits of Alabama for the investigation of or the prosecution of any criminal case or the prosecution or defense of any case in which the state is interested. The Governor, any member of the Supreme Court or courts of appeals or the Attorney General may request a supernumerary district attorney to perform duties as those prescribed for assistant attorneys general, either in their respective offices or at such other places within or without the state as such officials may assign him. When on such special assignment at the request or designation of one of the aforementioned officials and performing duties as those prescribed for assistant attorneys general, the supernumerary district attorney shall have all the powers and authority of an assistant attorney general and shall be entitled to the same amount of sick leave and annual leave that accrues to an assistant attorney general; and, while performing such duties at the request of the Attorney General, he shall be designated as a special assistant attorney general.
(emphasis added).
The office of supernumerary district attorney was not created until 1953. See Ala. Code
§12-17-216 (Acts 1953, No. 474, p. 589, § 2; Acts 1961, No. 629, p. 748, § 1; Acts 1965, 2nd Ex.
Sess., No. 112, p. 150, § 1); see also Opinion of the Justices, 665 So. 2d 1382, 1384 (Ala. 1995)
(“The legislature has created supernumerary offices for . . . district attorneys, § 12-17-210 et seq.;
. . .”). The title to the 1953 Act provides: “To provide supernumerary circuit solicitors of the State
of Alabama: to provide the conditions under which a circuit solicitor may become a supernumerary
circuit solicitor; . . .” Section 2 of that Act provides:
Such supernumerary circuit solicitors shall take the oath of office prescribed by the Constitution for judicial officers and shall have and exercise all the duties, power and authority of solicitors of the judicial circuits or circuit courts, and shall, upon request of the Governor, or upon the request of the Chief Justice of the Supreme Court, or upon the request of the Attorney General, attend any regular, adjourned or special session of any circuit court in any of the judicial circuit of Alabama for the investigation of or the prosecution of any criminal case, or the prosecution or defense of any cause in which the State is interested.
Acts 1953, No. 474, p. 590, § 2. The 1953 Act became effective September 3, 1953. In 1961, the 1953 Act was amended (in pertinent part) by the addition of the
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following:
The Attorney General may request a supernumerary circuit solicitor to perform the duties of an Assistant Attorney General, either in the office of the Attorney General or at such other places in the State of Alabama or out of the State as the Attorney General may assign him. When on special assignment as an Assistant attorney general, the supernumerary circuit solicitor shall be designated as a special Assistant Attorney General, shall have all the powers and authority of an Assistant Attorney General, and shall be entitled to the same amount of sick leave and annual leave that accrues to an Assistant Attorney General.
Acts 1961, No. 629, p. 748-749, § 2, effective August 30, 1961. In 1965, the 1961 Act was amended to read (in pertinent part):
The Governor, any member of the Supreme Court or Court of Appeals, or the Attorney General may request a supernumerary circuit solicitor to perform the duties as those prescribed for Assistant Attorneys General, either in either in their respective offices or at such other places within or without the State as such official may assign him. When on special assignment at the request or designation of one of the aforementioned officials and performing duties as those prescribed for Assistant Attorneys General, the supernumerary circuit solicitor shall have all the powers and authority of an Assistant Attorney General, and shall be entitled to the same amount of sick leave and annual leave that accrues to an Assistant Attorney General, and while performing such duties at the request of the Attorney General, he shall be designated as a Special Assistant Attorney General.
Acts 1965, 2nd Ex. Sess., No. 112, p. 150-151, § 2 (emphasis added). Section 2 of Act No. 112
has not been amended and reflects the present wording of §12-17-216.
Thus, this historical recitation make clear two points. First, if the Attorney General had any
authority to appoint Davis, it was pursuant to §12-17-216 and not § 36-15-15 or any other statute.
If General Strange wished to appoint Davis pursuant to Ala. Code § 12-17-216 to oversee the
Special Grand Jury’s investigation, he would have, could have, and should have made that clear
in the Appointment Letter, because otherwise there exists no legal authority for the purported
appointment. Second, had Davis been properly appointed under § 12-17-216, he would have been
designated as a special assistant attorney general, not “Acting Attorney General” as he repeatedly
has been designated in this case. See Ala. Code § 12-17-216.
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Davis has been styled as “Acting Attorney General” in all pleadings since Hubbard’s
indictment, in pre-indictment press releases regarding other cases stemming from the Special
Grand Jury,10 and in public interviews.11 Davis was not appointed to serve as Acting Attorney
General by the Governor. General Strange “asked Davis to assume the investigation pursuant to
his powers and authority as a supernumerary district attorney . . . .” Strange’s Response,
Response No. 19 (emphasis added). However, General Strange attempted to vest Davis with the
full powers of the Attorney General: “By this appointment, you are hereby authorized to exercise
the full powers vested in me in those matters.” Appointment Letter (emphasis added). However,
pursuant to § 12-17-216, the supernumerary district attorney “shall have all the powers and
authority of an assistant attorney general” and “shall be designated as a special assistant
attorney general.” Ala. Code § 12-17-216 (emphasis added). Just as there is no statute that gives
the Attorney General the authority to appoint an Acting Attorney General, there is no statute that
gives the Attorney General the authority to “vest” the powers of the position or office of the
Attorney General in a supernumerary district attorney.
Despite General Strange’s official purported appointment of Davis based on Ala. Code
§ 36-15-15, General Strange now states he “asked Davis to handle the investigation pursuant to
Alabama Code § 12-17-184, 12-17-216 and 36-15-15.” Strange’s Response, Response No. 19
(emphasis added).12 This is revisionist history. General Strange relied upon only one statute when
10 See, e.g., April 24, 2014 News Release regarding the arrest of Rep. Barry Moore, attached as Exhibit E. 11 See, e.g., “APR Speaks with Acting Attorney General W. Van Davis,” alreporter.com, November 24, 2014, available at http://www.alreporter.com/in-case-you-missed-it-2/7011-apr- speaks-with-acting-attorney-general-w-van-davis.html. 12 Based on General Strange’s original citation to § 36-15-15 and his present citation to §§ 12-17-184 and 12-17-216 in his interrogatory responses (Response No. 19, among others),
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Moreover, as shown above, neither §§ 12-17-184 nor 36-15-15 give General Strange the authority
to appoint Davis to oversee the Special Grand Jury.
C. Davis is statutorily disqualified due to his continued private practice of law.
Assuming, arguendo, General Strange properly called Davis into active service pursuant
to Ala. Code § 12-17-216, Davis is disqualified from serving as supernumerary district attorney
because he has violated the statutory prohibition against engaging in the private practice of law
during service. When a supernumerary district attorney is appointed by the Attorney General to
perform certain duties, the supernumerary “shall be designated as a special assistant attorney
general.” Ala. Code § 12-17-216.13 Ala. Code § 36-15-9 expressly prohibits the private practice of
law by assistant attorneys general:
All assistant . . . attorneys general of the State of Alabama appointed by the Attorney General are hereby prohibited from engaging in the private practice of the law during the time they are such assistant . . . attorneys general. All assistant . . . attorneys general appointed by the Attorney General are hereby prohibited from maintaining private law offices during such time.
Ala. Code § 36-15-9. The Attorney General’s Office repeatedly has recognized this prohibition in
its advisory opinions, specifically as it relates to prohibiting supernumerary district attorneys from
engaging in the private practice of law during service to the Attorney General. In a 1996 advisory
opinion to Thomas W. Sorrells (the then-Executive Director of the Alabama District Attorneys
General Strange is apparently relying on this Court’s opinion in the Moore case in which §§ 12-17-184(10) and 12-17-216 were cited for the first time as legal authority for Davis’ appointment. See Order Regarding Motion to Dismiss and Motion to Quash, June 13, 2014, State v. Felix Barry Moore, CC-2014-226. As best defense counsel can determine, the State had not yet cited §§ 12-17-184(10) or 12-17-216 when the Court’s opinion in the Moore case was released; it was only after this Court’s opinion was released that the State began to argue those statutes supported Davis’ appointment. 13 Notably, there has been no indication in any of the State’s pleadings, arguments, and filings that Davis was ever “designated as a special assistant attorney general.”
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Association), former Attorney General Jeff Sessions made clear that supernumerary district
attorneys are not allowed to engage in the private practice of law if called in to duty pursuant to §
12-17-216:
A supernumerary district attorney is free to engage in any lawful employment, including the private practice of law unless, as provided in § 12-17- 216, he is requested by the Governor, the Chief Justice of the Supreme Court, or the Attorney General to conduct investigations or attend court, or . . . to perform duties prescribed for assistant attorneys general.
Opinion to Honorable Thomas W. Sorrells, Executive Director, Alabama District Attorneys
Association, dated September 30, 1996, A.G. No. 96-00329 (attached as Exhibit F). Former
Attorney General Troy King reiterated this prohibition in a 2005 advisory opinion to Henry County
District Attorney Douglas Albert Valeska:
A supernumerary district attorney is free to engage in any lawful employment, including the private practice of law, unless he or she is assigned duties pursuant to section 12-17-216 of the Code of Alabama. . . . The contract between the supernumerary district attorney and the active district attorney should provide for termination or suspension of the contract in the event the supernumerary district attorney should be called to active service.
Opinion to Honorable Douglas Albert Valeska, District Attorney, Henry County, dated June 20,
2005, A.G. No. 2005-151 (citing Sorrells, A.G. No. 96-00329) (attached as Exhibit G).
General Strange has relied on both the Valeska and Sorrells opinions in approving a private
contract between a district attorney and a supernumerary district attorney for the supernumerary
district attorney to provide legal services as part of a statewide restitution recovery program, but
specifically noted that “the contract should provide for termination or suspension of the contract
in the event the supernumerary district attorney should be called into active service.” Opinion to
Honorable Randall I. Hillman, Executive Director, Office of Prosecution Services, dated
September 22, 2014, A.G. No. 2014-097 (citing Valeska and Sorrells) (attached as Exhibit H).
Thus, General Strange himself has officially and publicly recognized previous authority
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prohibiting supernumerary district attorneys from engaging in the private practice of law when
called into active service pursuant to Ala. Code § 12-17-216.
The Special Grand Jury was impaneled in August 2013. Since Davis’ appointment, he has
engaged in the active private practice of law as reflected in a cursory search of available
information on Alabama’s online trial court system, www.alacourt.com. In fact, Davis’ March 5,
2014 letter to undersigned attorney J. Mark White was printed on “Davis & Tice Law Firm”
stationery.14 Not only has Davis continued the private practice of law since being called into active
service under § 12-17-216, defense counsel’s review of Alacourt indicates that Davis has in fact
represented at least twenty separate parties (mostly criminal defendants) in matters adverse to the
State of Alabama since being called into active service.
III. Hart Has No Authority in All Matters Related to the Special Grand Jury
A. Hart is neither a deputy attorney general nor an assistant attorney general.
Despite diligent research and investigation, defense counsel can find no record of Hart
being appointed as either deputy attorney general or assistant attorney general in the Attorney
General’s office. Ala. Code § 36-15-5.1 provides for the appointment process of deputy attorneys
general:
(b) The Attorney General may appoint, in such a manner or number as the Attorney General deems necessary, deputy attorneys general so long as the number of full- time deputy attorneys general employed in the office of the Attorney General does not exceed 12 and the number of full-time deputy attorneys general employed in any state department or agency does not exceed one. The compensation, salaries, expenses, and benefits of the deputy attorneys general shall be paid from funds available to the Attorney General or the department or agency employing the deputy attorney general.
(c) All deputy attorneys general shall be appointed by and shall serve at the pleasure of the Attorney General and shall perform such duties and exercise such powers as the Attorney General may direct.
14 A copy of this correspondence is attached as Exhibit I.
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19
Ala. Code § 36-15-5.1. In addition, the Attorney General may appoint assistant attorneys general
pursuant to Ala. Code § 36-15-6: “(a) Subject to the Merit System, the Attorney General may
appoint as many assistant attorneys general and other employees as the public interest requires by
reason of the volume of work in his or her office.” Ala. Code § 36-15-6(a). Simply put, there is no
record of Hart being appointed as either a deputy attorney general or an assistant attorney general
to serve under General Strange. As there is no commission on record for Hart, he cannot be a
deputy attorney general or assistant attorney general in this matter as those positions are defined
in the Alabama Code.
However, there is clear evidence indicating General Strange appointed Hart to the
unclassified position of “Public Corruption Special Prosecutor.” According to a February 11, 2011
letter from General Strange to Ms. Jackie Graham, Director of the State Personnel Department,
General Strange appointed Hart “to the position of Public Corruption Special Prosecutor (99016U)
pursuant to 36-26-10, Code of Alabama 1975.”15 Clearly, Hart’s appointment was not made
pursuant to either §§ 36-15-5.1 or 36-15-6, the specific sections described above which set forth
the appointment procedures for deputy and assistant attorneys general. Additionally, according to
page two of the official minutes of the “Nine Hundredth Meeting of the State Personnel Board”
from February 9, 2011, Hart is specifically referenced as being “appointed to the unclassified
position of Public Corruption Special Prosecutor.”16 The State Personnel Board’s designation of
15 General Strange’s letter is attached as Exhibit J. Interestingly, General Strange goes on to note “[t]he Public Corruption Special Prosecutor was formerly known by the title of Solicitor General, and the change of designation was approved by the State Personnel Board on February 9, 2011.” However, there is no record in the minutes from the Personnel Board’s February 9, 2011 meeting of that change in designation ever being raised, much less approved. See Exhibit K, infra. 16 The minutes are attached as Exhibit K.
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20
Hart’s “unclassified position” accurately reflects the fact that Hart’s “pseudo” position in the
Attorney General’s office is not an official position recognized by the Alabama Constitution, the
Alabama Code, the Alabama Rules of Criminal Procedure, or the Alabama State Personnel Board.
More recently, in General Strange’s Motion to Stay Appeal filed May 28, 2015 in the matter of
Howard Sisson before the State Personnel Board, General Strange refers to Hart not as a deputy
attorney general or an assistant attorney general, but as “a special prosecutor.” Motion to Stay
Appeal, May 28, 2015, In the matter of Howard Sisson before the State Personnel Board.17 Clearly,
the State recognizes Hart is neither a deputy attorney general nor an assistant attorney general, and
Hart therefore possesses the power and authority of neither position.
Defense counsel’s independent investigation reveals that in 2014, after the issue of Davis’
appointment was raised in the Moore case, an assistant in the Attorney General’s office was
approached and asked to create formal Commissions for Davis, Hart, and Duffy.18 Defense counsel
anticipates being able to present evidence that the assistant was asked to backdate the Commissions
to the date of January 31, 2013, and that the assistant understood the purpose of creating backdated
Commissions was for them to be presented to this Court as evidence of the legitimacy of Davis’
appointment and to credential Hart and Duffy. Based on defense counsel’s independent
investigation, it is believed the assistant is the only person in the Attorney General’s office who
prepares the Commissions, and that the assistant ultimately refused to create and backdate the
Commissions.
17 General Strange’s motion is attached as Exhibit L. 18 Hubbard discussed these facts and individuals with specificity in Hubbard’s Supplement to April 30, 2015 Proffer In Support of Hubbard’s Motion to Dismiss Indictment: Special Grand Jury Not Properly Impaneled (filed under seal May 7, 2015) and mentions them only generally herein.
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21
B. As Hart is neither a deputy attorney general nor an assistant attorney general, Hart did not have the authority to swear in witnesses before the Special Grand Jury.
As this Court well knows, Ala. Code § 12-16-199 sets out who may administer an oath to
a grand jury witness: “Witnesses before the grand jury may be sworn in by the district attorney or
foreman.” Additionally, Rule 12.5(b)(3)(i) of the Alabama Rules of Criminal Procedure requires
that the foreman of a grand jury “[s]wear witnesses before the grand jury or cause them to be sworn
by the district attorney or assistant attorney.” The appellate courts of Alabama, since 1885, have
interpreted § 12-16-199 as meaning that an “oath to a witness before a grand jury must be
administered by either the district attorney or the foreman. No others have this authority, and
statements of a witness when the oath was administered by another are not given under the sanction
of an oath.” Bogle v. State, 477 So. 2d 507, 508 (Ala. 1985) (citing Joyner v. State, 78 Ala. 448,
452). “Much as they might be tempted to do so, a grand jury may not indict merely on their own
suspicious [sic]: they must have sworn witnesses or self-proving documents before them.” State
ex rel. Baxley v. Strawbridge, 296 So. 2d 779, 783 (Ala. Crim. App. 1974) (emphasis added).
Under Ala. Code § 12-16-200, “[i]n the investigation of a charge for any indictable offense, the
grand jury can receive no other evidence than is given by witnesses before them or furnished by
legal documentary evidence . . . .” Therefore, an indictment based on the statements of witnesses
not given under the sanction of an oath is “found without legal evidence” and is subject to a motion
to dismiss. See Joyner, 78 Ala. 448, 452 (“The statements of the witness were not given under the
sanction of an oath, and hence the indictment was found without legal evidence. The motion to
quash should have prevailed.”); see also Order Granting Defendants’ Motions to Dismiss, Or in
the Alternative, to Quash, State of Alabama v. Victor T. Powell, et al., Blount County Circuit Court,
Case No. CC-2006-000346, October 17, 2007 (granting dismissal of multiple defendants’
indictments stemming from a grand jury in which the Blount County District Attorney allowed
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22
“an individual not: a) the District Attorney, or; b) the Foreman of the Grand Jury” to administer
oaths to witnesses testifying before the grand jury).19
Based on defense counsel’s review of the grand jury transcripts provided to date, it appears
Hart was primarily responsible for swearing in witnesses before the Special Grand Jury. The State
previously has argued that Hart properly swore witnesses in before the Special Grand Jury pursuant
to Ala. R. Crim. P. 12.5(b)(3)(i), Ala. Code § 12-16-199, and Ala. R. Crim. P. 1.4(k). See State’s
Response to Motion to Dismiss at 4, May 8, 2014, State v. Felix Barry Moore, CC-2014-226.20
Rule 1.4(k), Ala. R. Crim. P., provides that the term “district attorney” includes “the Attorney
General, Deputy Attorney General, assistant attorneys general, and others acting under the
Attorney General’s specific authority or pursuant to his supervision or direction.” However, Hart’s
position as “special prosecutor” falls under none of these definitions. Hart is clearly not the
Attorney General of Alabama, and has not been appointed as a deputy attorney general, assistant
attorney general, or even district attorney. For the reasons outlined below, Hart additionally does
not fall under “the Attorney General’s specific authority or pursuant to his supervision or
direction.”
19 The Court’s Order is attached as Exhibit M, and defendant Powell’s Motion to Quash, or in the alternative, To Dismiss Indictment is attached as Exhibit N. 20 Discussing Moore’s appearance before the Special Grand Jury, the State argued:
Moore was then sworn under oath by Deputy Attorney General Hart. See Rule 12.5(b)(3)(i), Ala. R. Crim. P.; § 12-16-199, Ala. Code.; Rule 1.4(k), Ala. R. Crim. P. (stating that the term “‘District Attorney’” … includes “the Attorney General, Deputy Attorney General, assistant attorneys general, and others acting under the Attorney General’s specific authority or pursuant to his supervision and direction.”).
Again, there is no Commission on record for Hart being appointed to serve as a deputy attorney general.
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23
General Strange stated in his interrogatory responses that “Hart reports to Davis for the
purposes of this matter.” See Strange’s Response, Response No. 51. Therefore, in all matters
relating to the Special Grand Jury, Hart is not “acting under the Attorney General’s specific
authority or pursuant to his supervision or direction” because Hart is reporting to Davis. See Ala.
R. Crim. P. 1.4(k). The State may argue Hart is acting under the Attorney General’s specific
authority because it claims Davis is the “Acting Attorney General.” Such an argument is
unconvincing, however, most notably because General Strange himself stated in his interrogatory
responses that Davis is a supernumerary district attorney, not “Acting Attorney General.” This
argument also fails because General Strange does not have the constitutional authority to appoint
an “acting attorney general,” as discussed above and in previous filings. Clearly, Hart is not “acting
under the Attorney General’s specific authority or pursuant to his supervision or direction” in
matters relating to the Special Grand Jury. See Ala. R. Crim. P. 1.4(k).
In sum, the following are the only logical conclusions that can be reached based on the
State’s filings and assertions on this point:
1. Based on General Strange’s own interrogatory responses, General Strange is not the
Attorney General for purposes of this matter, nor has his Chief Deputy Attorney
General assumed the role of Attorney General in this matter;
2. Davis is not “Acting Attorney General” in this matter, but is a supernumerary district
attorney;
3. Davis is statutorily disqualified from serving as a supernumerary district attorney due
to his continued active private practice of law; see Ala. Code §§ 12-17-216 and
36-15-9;
24
4. Hart is not the Attorney General, nor has he been commissioned as a deputy attorney
general or assistant attorney general;
5. Hart does not report to the Attorney General, the Chief Deputy Attorney General, or
any acting attorney general in this matter, and he therefore is not “acting under the
Attorney General’s specific authority or pursuant to his supervision or direction;” See
Ala. R. Crim. P. 1.4(k);
6. Because Hart is not “acting under the Attorney General’s specific authority or pursuant
to his supervision or direction,” in this matter he is not a “district attorney” as defined
in the Alabama Rules of Criminal Procedure; See Ala. R. Crim. P. 1.4(k);
7. Because Hart is not a “district attorney” in this matter, he was not authorized to swear
in witnesses before the Special Grand Jury; See Ala. Code § 12-16-199;
8. All witnesses purportedly “sworn in” by Hart were in fact not sworn in and did not
provide testimony to the Special Grand Jury under the sanction of an oath;
9. Hubbard’s indictment was based on the statements of witnesses not given under the
sanction of an oath.
Therefore, as Hubbard’s indictment was based on the statements of witnesses not given under the
sanction of an oath, the indictment was “found without legal evidence” and should be dismissed.
See Joyner, 78 Ala. 448, 452.
IV. Conclusion
For almost two years, the State has simply lacked the authority to investigate, indict, and
prosecute Hubbard. General Strange’s interrogatory responses make clear neither he nor his Chief
Deputy have any role in this matter, leaving the Office of the Attorney General conspicuously
vacant. General Strange’s attempt to appoint Davis to the position of “Acting Attorney General”
DOCUMENT 235
25
has clearly been shown to be futile, as General Strange himself now admits he attempted to appoint
Davis as a supernumerary district attorney. General Strange failed to articulate the proper statutory
authority for such an appointment, leaving the appointment meritless. Even if he had cited to the
proper statutory authority for the appointment, the continued private practice of law by Davis
statutorily disqualifies him from serving as a supernumerary district attorney. During this
investigation and indictment there has been no Attorney General, Chief Deputy Attorney General,
or Acting Attorney General in place. “Special prosecutor” Hart lacked the statutory authority to
administer oaths to witnesses before the Special Grand Jury, yet did so anyway, making the
indictment against Hubbard one “found without legal evidence” and subject to dismissal. See
Joyner, 78 Ala. 448, 452. For these reasons, Hubbard respectfully requests that this Court dismiss
the indictment.
Respectfully submitted this the 10th day of June, 2015.
/s/ J. Mark White J. Mark White (WHI001) Augusta S. Dowd (DOW003) William M. Bowen, Jr. (BOW012) W. Chambers Waller (WAL242) White Arnold & Dowd P.C. 2025 Third Avenue North, Suite 500 Birmingham, Alabama 35203 Phone: (205) 323-1888 Fax: (205) 323-8907 Email: mwhite@whitearnolddowd.com adowd@whitearnolddowd.com wmbowen@whitearnolddowd.com cwaller@whitearnolddowd.com
/s/ R. Lance Bell R. Lance Bell (BEL044)
Trussell Funderburg Rea & Bell, P.C. 1905 1st Ave South Pell City, AL 35125-1611 Phone: (205) 338-7273 Fax: (205) 338-6094
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Email: lance@tfrblaw.com
/s/ Phillip E. Adams, Jr. Phillip E. Adams, Jr. (ADA025) Adams White Oliver Short & Forbus, LLP P. O. box 2069 Opelika, Alabama 36803-2069 Phone: (334) 745-6466 Fax: (334) 749-3238 Email: padams@adamswhite.com
Attorneys for Michael G. Hubbard
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CERTIFICATE OF SERVICE
I hereby certify that I have on this the 10th day of June, 2015, filed the foregoing with the Clerk of the Court and that I have served a copy of same upon the following by email. William Van Davis Law Office of W. Van Davis 423 23rd St North Pell City, AL 35125-1740 Email: vandclaw@centurylink.net M. Matthew Hart Michael B. Duffy Andrew Brasher Office of the Attorney General PO Box 300152 Montgomery, AL 36130-0152 Email: mhart@ago.state.al.us mduffy@ago.state.al.us abrasher@ ago.state.al.us Michael L. Kidd 128 Adams Avenue Suite III Montgomery, Alabama 36104 Email: uakidd@gamail.com /s/ J. Mark White J. Mark White Of counsel
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EXHIBIT A
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D O
C U
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2 35
EXHIBIT B
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EXHIBIT C
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5/28/2015 State of Alabama ­ Office of the Governor Bob Riley ­ Press Releases
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STATE OF ALABAMA
Gov. Riley Statement on Resignation of Attorney General Bill Pryor
Listen to the Governor's Reaction
MONTGOMERY ­ "I was delighted to learn of Attorney General Bill Pryor’s investiture to the 11th Circuit Court of Appeals today. President Bush is to be commended for recognizing General Pryor’s conservative philosophy and his faithful commitment to the Constitution.
"I have designated Chief Deputy Attorney General Richard Allen as Acting Attorney General until such time as a permanent appointment is made, which will be in the next few weeks. "
Governor's Press Office ­ State Capitol ­ Suite NB­06 ­ Montgomery, Alabama 36130 ­ (334) 242­7150 For more contact information, visit Governor Bob Riley's Web Site:  http://www.governor.state.al.us/
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STATE OF ALABAMA
ATTORNEY GENERAL LUTHER STRANGE’S RESPONSE TO DEPOSITION VIA WRITTEN INTERROGATORIES
GENERAL OBJECTIONS
Attorney General Luther Strange answers these interrogatories subject to, and without
waiving, the following general objections. First, these interrogatories reflect an improper fishing
expedition contrary to the Rules of Criminal Procedure. See, e.g., Ala. R. Crim. P. 16.1(c).
Second, these interrogatories appear to be motivated by the improper desire to harass or annoy a
government official by making unfounded and salacious allegations. See Ex parte Jacksonville
State Univ., 40 So.3d 672, 676 (Ala. 2009) (prohibiting the depositions of high-ranking
university officials intended to harass and annoy them). Third, as explained in the State’s motion
to quash, these interrogatories seek information that is protected by the law enforcement
privilege, executive privilege, deliberative-process privilege, attorney-client privilege, and the
attorney work product doctrine. See, e.g., Ala. Code § 12-21-3.1; Assured Investors Life Ins. Co.
v. Nat’l Union Associates, Inc. 362 So. 2d 228, 233 (Ala. 1978) overruled on other grounds, Ex
parte Norfolk S. Ry Co., 897 So. 2d 290 (Ala. 2004); In re United States, 985 F.2d 510, 512
(11th Cir. 1993). In answering these interrogatories subject to these objections, Attorney
General Strange expressly preserves and declines to waive these privileges and objections.
Additional objections to specific interrogatories are made below.
ELECTRONICALLY FILED 5/27/2015 2:15 PM
43-CC-2014-000565.00 CIRCUIT COURT OF
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RESPONSE: Luther Johnson Strange III
2. Identify all persons who assisted You in answering these questions or who
reviewed Your answers to these questions.
RESPONSE: Andrew Brasher, 501 Washington Ave, Montgomery AL 36130
3. Identify all persons from whom You obtained information in order to answer
these questions.
RESPONSE: Andrew Brasher, 501 Washington Ave, Montgomery AL 36130
a. Do You realize that that Your answers to these Deposition via Written
Interrogatories are under oath?
RESPONSE: Yes.
4. Identify all locations where You or someone assisting You searched for and/or
obtained information for use in responding to these Deposition Interrogatories.
OBJECTION: Compound question, calls for speculation as to what other people did
RESPONSE: My responses are based on my own knowledge and memory. I consulted my
calendar for the day of January 31, 2013, the Alabama Code, and the Alabama Constitution. I
also reviewed the document attached as Exhibit 1, which reflects the date on which an electronic
pdf. version of my January 31, 2013 letter to Supernumerary District Attorney Van Davis was
created and saved on a computer in the Attorney General’s Office.
5. Does the Attorney General's Office have any written guidelines or policies that
set out the bases for recusal by the Attorney General and the appointment of an individual
you have identified as an “Acting Attorney General”?
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RESPONSE: Not that I am aware.
6. Is anyone employed by the Attorney General's Office exempt from having to
comply with the governance You identify in response to Deposition Interrogatory 5?
a. Is someone who is appointed by You to be an "Acting Attorney General"
exempt from having to comply with the governance You identify in response to
Deposition Interrogatory 5?
RESPONSE: See Response to Interrogatory 5.
7. Describe any and all oaths of office required of or made by You and/or the
attorneys who serve in the Attorney General's Office?
OBJECTION: Compound question, vague and unclear with respect to term “oaths of office”
RESPONSE: My oath of office can be found in the Constitution of Alabama. It is my
understanding that attorneys who serve in my Office do not take a formal oath of office except
any oath that may be required to become a member of the Alabama Bar.
8. Were M. Mathew "Matt" Hart ("Hart"), Michael "Mike" Duffey ("Duffey"),
William Van Davis ("Davis"), and Peter "Pete" John Smyczek ("Smyczek") administered an
oath in connection with their service in the Attorney General's Office after you became the
Attorney General?
a. Which individuals identified in Deposition Interrogatory 8 were not
administered an oath in connection with his service in the Attorney General's Office
after you became Attorney General?
b. If oaths were administered to any of the individuals identified in
Deposition Interrogatory 8, state the date any oath was administered.
OBJECTION: Compound question, calls for speculation as to actions of other persons
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RESPONSE: See Response to Interrogatory No. 7. I note that, as a supernumerary district
attorney, Van Davis’s oath of office is provided for in Ala. Code § 12-17-216. I do not know
“the date any oath was administered” with respect to the individuals you have identified.
9. When did the Alabama Attorney General's Office begin its investigation of
Mr. Hubbard?
RESPONSE: I do not recall.
10. When did You recuse from the investigation of Mr. Hubbard?
RESPONSE: To the best of my recollection, January of 2013.
11. Identify any other employee(s) of the Attorney General's Office recused from
the Hubbard investigation and prosecution?
RESPONSE: Kevin Turner, Chief Deputy Attorney General, whose present address is unknown
to me.
a. On what basis did You determine which employees of the Attorney
General's Office would be recused and which would not be recused?
RESPONSE: See Response to Interrogatory No. 15.
12. What action(s) was taken by You and/or any employee(s) of the Attorney
General's Office to memorialize the recusal of You and/or any employee(s) from the
investigation of Mr. Hubbard?
OBJECTION: Calls for speculation as to actions of other persons, vague as to “memorialize”
RESPONSE: I requested that a supernumerary district attorney, Van Davis, assume the
investigation, and I directed administrative personnel to block my access to the file.
13. What is Your understanding of the term "recused" or "recusal" as You have
used the term in this case?
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RESPONSE: I removed myself from substantive involvement in the matter.
14. Did You, or someone in Your office, advise the Governor of Alabama of Your
recusal, and if so, state the date the Governor was advised, the name of the person who
advised the Governor, and the manner by which the Governor was advised of Your recusal.
OBJECTION: Compound question, calls for speculation as to actions of other persons
RESPONSE: Not to my knowledge.
15. What was the basis for the decision by You to recuse Yourself from the
investigation and/or prosecution of Mr. Hubbard?
RESPONSE: The investigation concerned Mr. Hubbard’s potential misappropriation of funds
when he was the Chairman of the Republican Party through his business, Craftmaster. My
campaign used Craftmaster’s printing services. Kevin Turner worked on my campaign.
16. Identify all persons with whom You discussed Your decision to recuse
Yourself from the investigation and/or prosecution of Mr. Hubbard prior to Your recusal and
subsequent to Your recusal.
OBJECTION: Compound question
RESPONSE: John Gibbs, Criminal Trials Division Chief, whose present address is unknown to
me; Matt Hart, Special Prosecutions Division Chief, 501 Washington Ave, Montgomery AL
36130; Kevin Turner, Chief Deputy Attorney General, whose present address is unknown to me;
other career prosecutors in my office although I cannot recall precisely which ones.
17. When asked "Why did Luther recuse himself?" by Dale Jackson, Hart stated,
Because everybody on his staff – there was a – there's an issue, I don't know why it can't be public at this point, maybe it will be before too long. He – there were various issues that Luther – Luther, you know, had previous relationships with -- with some people, including Mike Hubbard for instance, you know. And you can't really go interview yourself about something. It doesn't have much credibility. You know, if Luther had started this case and
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stayed on it and it had not been pursued -- you know, I mean, you talk about being criticized. I think he really could have been.
And there were various things that created potential problems. He submitted it all to his staff. And people like me and John Gibbs and Dave Brurberg, who is head of the appellate unit, and other lawyers of all stripes, five or six different senior people all came to the conclusion, you should pop out of this and find somebody to do it and give it to them completely and isolate yourself from the case. And that's what he was advised.
So I don't think he really wanted to do it. I don't think he really wanted to get out of it, you know. He thought he'd rather stay in it and do whatever needed to be done. But that's why he got out of it. And he did the right thing. And that analysis was right, and it will stand up too.
But, you know, there is a vacuum on that. I understand that.
(Exhibit "H" to the State's Surreply to Hubbard's Amended motion for Production at pp. 65-
67). Do You agree with Mr. Hart's statement as reflected above?
a. If You do not agree with Hart's statement as set out in Deposition
Interrogatory 17, please identify the statements you do not agree with and for each
statement, explain why You do not agree with Hart's statement.
OBJECTION: Compound question
RESPONSE: The statement is materially correct.
18. What was the procedure used to appoint Davis to serve in the investigation
and/or prosecution of Mr. Hubbard?
a. When did You first contact Davis about the possibility of Davis serving
in the investigation and/or prosecution of Mr. Hubbard?
b. Where is the procedure you utilized to appoint Davis located in the law,
statutes, policies, and/or procedures of the State of Alabama?
RESPONSE: Although I cannot recall the first time I contacted Davis about the investigation, I
can recall that he was the consensus recommendation of the professional career prosecutors in
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my office. He is a supernumerary district attorney, served as a district attorney for many years,
is highly qualified, and has extensive experience in criminal investigations and prosecutions. I
asked Davis to handle the investigation pursuant to Alabama Code §§ 12-17-184, 12-17-216 and
36-15-15.
19. When did You appoint Davis as "Acting Attorney General" to serve in the
investigation and/or the prosecution of Mr. Hubbard?
a. What is Your authority in the law of Alabama to appoint an "Acting
Attorney General"?
OBJECTION: Argumentative, calls for legal conclusion
RESPONSE: I asked Davis to assume the investigation pursuant to his powers and authority as a
supernumerary district attorney as provided by Alabama Code §§ 12-17-184, 12-17-216, and
36-15-15. To the best of my recollection, this occurred in January of 2013. I do not know “who
created the term ‘Acting Attorney General.’”
20. What is the procedure for appointing an "Acting Attorney General" and
where is that procedure located in the law, statutes, policies, and/or procedures of the State of
Alabama?
OBJECTION: Argumentative, calls for legal conclusion
RESPONSE: I asked Davis to assume the investigation pursuant to his powers and authority as
a supernumerary district attorney as provided by Alabama Code §§ 12-17-184, 12-17-216, and
36-15-15.
21. Was the appointment of Davis to be in charge of the investigation and/or the
prosecution of Mr. Hubbard handled any differently than any of your other appointments?
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a. If Your response to Deposition Interrogatory 21 is 'yes' or in the
affirmative, please identify any appointments treated differently from the appointment
of Davis to serve in the investigation and/or prosecution of Mr. Hubbard, and explain
how those appointments were treated differently.
b. If Your response to Deposition Interrogatory 21 is 'yes' or in the
affirmative, provide the reasons why the appointment of Davis to serve in the
investigation and/or prosecution of Mr. Hubbard was handled differently than any
other appointment.
RESPONSE: I often ask district attorneys and supernumerary district attorneys to handle
investigations or prosecutions when, for whatever reason, I believe their expertise or resources
are needed. This matter was handled no differently.
22. Attached as Exhibit A to these Deposition Interrogatories is a letter that Your
office has identified to Judge Walker as the only document in your office related to Your
recusal and the appointment of Davis. Do you agree with the representation made in the
State's April 29, 2015, Response to Hubbard's Demand and Supplemental Demand for Rule
16.1 Production that the document reflected in Exhibit A is the only document that exists
relating to the appointment of Davis and Your recusal from any investigation and/or
prosecution of Mr. Hubbard?
RESPONSE: Exhibit A is the only document of which I am aware.
23. If You personally signed the document reflected in Exhibit A, provide the
date You signed the document reflected in Exhibit A, Your location at the time You signed
the document reflected in Exhibit A, and the identity of all individuals who saw You sign
the document reflected in Exhibit A.
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RESPONSE: I personally signed the original letter represented by Exhibit A in my office on
January 31, 2013, which is the date of the letter. I do not recall whether anyone saw me sign
the document. Exhibit 1 to this response reflects that a signed copy of the letter was converted
to pdf. at 4pm on January 31, 2013 and saved to a computer in the Attorney General’s Office.
24. If the signature on the document reflected in Exhibit A is a stamped or
computer generated signature, identify the person who caused Your signature to be stamped
or computer generated to the document reflected in Exhibit A, state when this person stamped
or computer generated Your signature on the document reflected in Exhibit A, and identify
all persons in the Attorney General's Office with authority to stamp or computer generate
Your signature on the document reflected in Exhibit A.
RESPONSE: See Response to Interrogatory 23.
25. Did You participate in any way in the drafting of the document reflected in
Exhibit A and if so, describe Your participation?
RESPONSE: I directed that the letter be prepared, I reviewed the letter, then I signed the letter.
26. On what date did You first see the document reflected in Exhibit A?
RESPONSE: January 31, 2013.
27. Did You review the document reflected in Exhibit A before it was executed?
RESPONSE: Yes
28. Identify everyone with whom you discussed the document reflected in Exhibit
A before executing the document, what was said, and by whom in those discussions?
OBJECTION: Compound question
RESPONSE: I discussed the document with John Gibbs and Matt Hart. I cannot recall what
anyone said.
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29. If You did not draft the document reflected in Exhibit A, who drafted and/or
physically typed Exhibit A?
RESPONSE: I do not know who physically typed the document.
30. Identify every person involved in the creation and/or drafting of the document
reflected in Exhibit A and what role each person played in its creation and/or drafting.
RESPONSE: I do not know “every person” who was “involved in the creation and/or drafting of
the document.” I directed that the letter be drafted, I reviewed it, and I signed it.
31. Identify by first and last name every person whose initials appear at the bottom
left of the document reflected in Exhibit A (i.e. "LS:MH:sb")?
RESPONSE: LS is Luther Strange. MH is Matt Hart. I cannot identify “sb” by name, but I
believe “sb” represents the secretary or paralegal who physically typed the letter.
32. What did you mean by the term "isolate" as it is used in the document
reflected in Exhibit A?
RESPONSE: I removed myself from substantive involvement in the matter.
33. What knowledge do You have regarding the participation or lack of
participation of Sandra McLure in the creation of the document reflected in Exhibit A or any
document of any type, including but not limited to any commission, letter, or oath for Davis,
Hart, and/or Duffy?
RESPONSE: None
34. Are You aware of any discussion(s) between any member of the Attorney
General's Office regarding backdating the document reflected in Exhibit A or backdating any
document of any type, including but not limited to any commission, letter, or oath for Davis,
Hart, and/or Duffey?
DOCUMENT 235
RESPONSE: No
35. Was the document reflected in Exhibit A or any document of any type,
including but not limited to any commission, letter, or oath for Davis, Hart, and/or Duffey
backdated?
RESPONSE: Exhibit A was not backdated. I executed the original letter represented by Exhibit
A on January 31, 2013, which is the date of the letter. I am aware of no other documents
responsive to this interrogatory.
36. If the document reflected in Exhibit A was backdated, who made the decision
to backdate the document reflected in Exhibit A or any document of any type, including but
not limited to any commission, letter, or oath for Davis, Hart, and/or Duffey?
a. If the document reflected in Exhibit A was backdated, what instructions,
if any, did You provide to any employee(s) of the Attorney General's Office or Davis
concerning the disclosure to the Court and defense counsel of the backdating of the
document reflected in Exhibit A?
RESPONSE: Exhibit A was not backdated.
37. If the document reflected in Exhibit A was backdated, when did You learn of
the backdating?
RESPONSE: Exhibit A was not backdated.
38. If the document reflected in Exhibit A was backdated, who made the decision
not to advise Judge Walker that the document reflected in Exhibit A had been backdated?
RESPONSE: Exhibit A was not backdated.
39. Did you personally sign the document reflected in Exhibit A? If not did you
authorize you signature to be affixed? By whom? When?
DOCUMENT 235
RESPONSE: See Response to Interrogatory No. 23.
40. At the time You appointed Davis, were You aware he was engaged in the
private practice of law?
RESPONSE: Not that I recall. I knew only that Davis was a respected and qualified
supernumerary district attorney.
41. At the time you appointed Davis were You also aware he served as a municipal
judge in Pell City, Margaret and Odenville and was and is compensated for those positions
with public funds?
RESPONSE: Not that I recall. I knew only that Davis was a respected and qualified
supernumerary district attorney.
42. Do You agree the Attorney General for the State of Alabama cannot maintain a
private practice of law while serving as an Attorney General?
OBJECTION: Calls for legal conclusion, outside the scope of deposition “limited solely to the
issue of the appointment of Van Davis”
RESPONSE: Section 137 of the Alabama Constitution provides: “The attorney-general, state
auditor, secretary of state, state treasurer, and commissioner of agriculture and industries shall not
receive to their use any fees, costs, perquisites of office or other compensation than the salaries
prescribed by law, and all fees that may be payable for any services performed by such officers
shall be at once paid into the state treasury.”
43. Did You disqualify Yourself from any and all participation in any matter
related to activities and charges related to the Lee County grand jury?
OBJECTION: Vague and confusing as to breadth of “any and all” and “any matter related”
RESPONSE: I removed myself from substantive involvement in the grand jury’s investigation
DOCUMENT 235
and criminal prosecutions arising from that investigation.
44. Did you disqualify Yourself from any and all participation in the Barry Moore,
Greg Wren, Gene Sisson, and/or Sonny Reagan investigation(s), prosecution(s), and/or
plea(s)?
OBJECTION: Compound question, vague and confusing as to “any and all participation”
RESPONSE: I removed myself from substantive involvement in the grand jury’s investigation
and criminal prosecutions arising from that investigation.
45. Did You disqualify Yourself from any and all matters that related in any way
to Mr. Hubbard?
OBJECTION: Vague and confusing as to “related in any way”
RESPONSE: I removed myself from substantive involvement in the grand jury’s investigation
and criminal prosecutions arising from that investigation.
46. Do You still consider yourself disqualified in any of these matters? If so,
which ones?
RESPONSE: I am still removed from substantive involvement in the grand jury’s investigation
and criminal prosecutions arising from that investigation.
47. Have You remained at all times recused from all matters relating to the Lee
County Grand Jury?
OBJECTION: Vague and confusing as to “all matters relating to”
RESPONSE: I remain removed from substantive involvement in the grand jury’s investigation
and criminal prosecutions arising from that investigation.
48. What are the duties and responsibilities assigned to Davis in his role as
"Acting Attorney General"?
DOCUMENT 235
OBJECTION: Argumentative
RESPONSE: I refer you to Exhibit A to your own Interrogatories. Davis is a supernumerary
district attorney. Pursuant to Section 36-15-15, Section 12-17-184, and Section 12-17-216 of the
Alabama Code, he agreed to assume oversight of the State’s interests in the investigative matters
relating to Mike Hubbard, including all criminal matters arising from the investigation.
49. Identify all persons within the Attorney General's Office to whom Davis
reports regarding the investigation and prosecution of Mr. Hubbard.
OBJECTION: Vague and confusing as to “reports”
RESPONSE: Davis is a supernumerary district attorney. Pursuant to Section 36-15-15, Section
12-17-184, and Section 12-17-216 of the Alabama Code, he agreed to assume oversight of the
State’s interests in the investigative matters relating to Mike Hubbard, including all criminal
matters arising from the investigation.
50. Was Davis during the investigation and/or is he now in the prosecution of Mr.
Hubbard, required to provide You or any other employee of the Attorney General's Office
with any written report of the status of the investigation and/or prosecution. If so, to whom
does he report?
RESPONSE: Not to my knowledge. Davis is a supernumerary district attorney. Pursuant to
Section 36-15-15, Section 12-17-184, and Section 12-17-216 of the Alabama Code, he agreed to
assume oversight of the State’s interests in the investigative matters relating to Mike Hubbard,
including all criminal matters arising from the investigation.
51. Specifically as it relates to Hart, does he report to anyone in the Attorney
General's Office regarding matters where You are disqualified, and, if so, identify all persons
to whom Hart reports regarding such matters?
DOCUMENT 235
OBJECTION: Outside the scope of deposition “limited solely to the issue of the appointment of
Van Davis”
RESPONSE: Hart reports to Davis for the purposes of this matter. Davis is a supernumerary
district attorney. Pursuant to Section 36-15-15, Section 12-17-184, and Section 12-17-216 of the
Alabama Code, he agreed to assume oversight of the State’s interests in the investigative matters
relating to Mike Hubbard, including all criminal matters arising from the investigation.
52. Do You agree that the ultimate authority over the executive branch of the State of
Alabama is Governor Robert Bentley?
OBJECTION: Vague and confusing as to “ultimate authority,” calls for legal conclusion, outside
the scope of deposition “limited solely to the issue of the appointment of Van Davis”
RESPONSE: Section 113 of the Alabama Constitution provides: “The supreme executive power
of this state shall be vested in a chief magistrate, who shall be styled ‘The Governor of the State
of Alabama.’”
53. Since You are disqualified in this matter, is the Governor the person to whom
Hart and/or Davis ultimately report in any matter related to Mr. Hubbard?
OBJECTION: Vague and confusing as to “ultimately report,” calls for legal conclusion, outside
the scope of deposition “limited solely to the issue of the appointment of Van Davis”
RESPONSE: I am not aware of any legal authority or common practice that would require a
district attorney or supernumerary district attorney who is representing the State in a criminal
prosecution to “report” to the Governor.
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DOCUMENT 235
EXHIBIT E
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12/11/2014 Acting Attorney General W. Van Davis Announces Arrest Of Representative Barry Moore For Felony Perjury And Providing False Statements
http://www.ago.state.al.us/News­471 1/1
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NEWS RELEASE Luther Strange  Alabama Attorney General www.ago.alabama.gov
For More  Information 
FOR IMMEDIATE RELEASE
  April 24, 2014
STATEMENTS
(MONTGOMERY)—Acting  as  Attorney  General  in  this  matter,  W.  Van  Davis  announced  the  arrest today  of  Felix  Barry  Moore,  a  representative  from  the  91st  District  in  the  Alabama  House  of Representatives,  for  felony  perjury  and  providing  false  statements.  Representative  Moore,  47,  of Enterprise, surrendered today to special agents of the Attorney General’s Office at the Lee County Jail.
Acting  Attorney  General  Davis  is