IN THE COURT OF CRIMINAL APPEALS OF ALABAMA

Transcription

1 E-Filed 02:39:48 PM Honorable D. Scott Mitchell Clerk Of The Court IN THE COURT OF CRIMINAL APPEALS OF ALABAMA FELIX BARRY MOORE, Petitioner, Case No vs. STATE OF ALABAMA, Respondent. PETITION FOR WRIT OF MANDAMUS OF PETITIONER FELIX BARRY MOORE FILED PURSUANT TO RULE 21 ALABAMA RULES OF APPELLATE PROCEDURE MAY BE MADE AVAILABLE TO THE PUBLIC ON AN ONLINE ELECTRONIC DATABASE WITHOUT VIOLATING RULE 32 (2) (F) ALABAMA RULES OF APPELLATE PROCEDURE ORAL ARGUMENT REQUESTED William J. Baxley Joel E. Dillard BAXLEY, DILLARD, McIOJIGHT JAMES & MCELROY 2008 Third Avenue South Birmingham, Alabama Telephone: Telecopier: bbaxleyebaxleydillard.com jdillardqbaxleydillard.com Gregory B. McCain P.O. Box 1331 Dothan, Alabama Telephone: Telecopier: gmccain@graceba.net Derek E. Yarbrough, Esq. Motley Motley & Yarbrough 117 East Main Street Dothan, Alabama Telephone: Telecopier: dey@graceba.net Attorneys for Petitioner

2 PETITION FOR WRIT OF MANDAMUS Comes Petitioner, Felix Barry Moore (^^Petitioner Moore"), pursuant to Rule 21, Alabama Rules of Appellate Procedure ("ARAP"), and hereby petitions this Honorable Court to issue a writ of mandamus directed to the Honorable Jacob A. Walker, III, Circuit Judge for the Circuit Court of Lee County, Alabama, presiding over the case of State of Alahaina. v. Felix Barry Moore, CC Judge Walker has been timely served, pursuant to Rule 21(a)(1), along with all the parties to the action in the trial court, within the time specified by Rule 21 (3) for filing writs of mandamus and prohibition and other extraordinary writs. Petitioner Moore has contemporaneously filed a motion to stay the proceedings in the action below in the trial court, and submits that the jurisdictional issues alleged here warrant a stay to allow this Honorable Court ample time to review and decide them. 1

3 TABLE OF AUTHORITIES CASES: PAGE NO. : Dill V. State, 723 So. 2d 787 (Ala. Crim. App. 1998) 8 Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979) 11,12 Ervin v. State, 422 So.2d 123(Ala.Crim.App. 1983) 8 Ex Parte AutoSource Motors, LLC, 2014 WL (Ala. 2014) 11,24 Ex Parte Jackson, 614 So.2d 405 (Ala. 1993) 11,24 Ex Parte Jim Walter Homes, Inc., lie So.2d 76 (Ala, 2000) 17,19,20,21 Harris v. State, 2 So.3d 880 (Ala.Crim.App. 2007).. 13,20,21 Hewett V. State, 520 So.2d 200 (Ala.Crim.App. 1987) 24 Jackson v. State, 516 So. 2d 726 (Ala.Crim. App. 1985) 25 Matthews v. State, 401 So. 2d 241 (Ala.Crim.App. 1981) 24 Peters v. Kiff, 407 U.S. 493 (1972) 12 Riley v. Cornerstone Community Outreach, Inc., 57 So.3d 702 (Ala. 2010) 17,19,20,21 Sheppard v. Maxwell, 384 U.S. 333 (1966) 12 Simmons v. United States, 142 U.S. 148 (1891) 22 Teleco, Inc. V. Corporation Com'n of State of Okl., 649 P.2d 772 (Okl. 1982) 18 2

4 United States v. Hewitt, 517 F.2d 933 (3rd Cir. 1975) 12,22 Woods V, State, 367 So. 2d 982 (Ala. 1978) 12,19,22 STATUTES AND OTHER AUTHORITIES: Ala. R. Prof. Cond., Rule 1.10(a) 20 Code of Ala., ,8,9,21 Code of Ala., ,12 Code of Ala., ,23 Code of Ala., Code of Ala., (10) 7 Code of Ala., ,18 Code of Ala., 13A Code of Ala., (75) 24,25 Code of Ala., (76) 24,25 Code of Ala., (12) 20 Code of Ala., Code of Ala., ,7 Code of Ala., Constitution of Alabama, Art. I, 9 12 Constitution of Alabama, Art. V, 113, Constitution of Alabama, Art. V,

5 I STATEMENT OF THE FACTS On January 31, 2013, the Honorable Luther Strange, Attorney General ("General Strange"), wrote the following letter to William Van Davis ("Mr. Davis"), at his private law office in Pell City, Alabama. See Attachment "A." William Van Davis Law Office of W. Van Davis "'' St. N. Pell City, AL Dear Mr. Davis: I appreciate your agreement, pursuant to Section of the Code of Alabama., to asstime 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 the Special Prosecutions Division, who is supervising the investigation, to report directly to you regarding this matter. By this letter, you are hereby authorized to exercise the full powers vested in me in those matters. Thank you for your assistance. Sincerely, Luther Strange Luther Strange Attorney General 4

6 Without any further steps having been taken to lawfully and appropriately cause Mr. Davis to assume the office of Acting Attorney General, or to appropriately and lawfully allow Mr. Davis to "assume oversight of the interests in the current investigative matters relating to State Representative Mike Hubbard, to include all criminal matters arising from that investigation," Mr. Davis commenced acting as Attorney General of Alabama, and appearing before a specially convened grand jury in Lee County, Alabama. He did so without any oath, without any election so to serve, and without any legally required appointment by the Governor of Alabama. On April 24, 2014, the same grand jury, convened by Mr. Davis "to investigate matters relating to State Representative Mike Hubbard," returned an indictment for perjury against Petitioner Moore. (See Attachment "B"). On April 30, 2014 a Motion to Dismiss (Attachment "C") timely raised the following the focus of this petition: jurisdictional issues that are that "[t]he indictment does not identify any jurisdiction over which W. Van Davis claims to be the Acting Attorney General;" that "[f]or aught appearing 5

7 W. Van Davis could be acting attorney general of Timbuktu, having no authority to sign the instant indictment or to appear before the Grand Jury of Lee County, Alabama;" that "[t]he indictment in its entirety violates Section , Code of Ala,;" that "[t]he Grand Jury was improperly constituted;" and that therefore "tjhe indictment was returned by an improperly constituted Grand Jury and must be dismissed." Petitioner filed a stobpoena (Attachment "D") seeking any documents that might shed any light upon the authority for Mr. Davis to have appeared as an "Acting Attorney General" before the grand jury that issued the indictment against him that bears Mr. Davis's signature as "Acting Attorney General." Mr. Davis filed, in response to the subpoena, a Motion to Quash (Attachment "E"), claiming a law enforcement privilege, an executive privilege and a deliberative due process privilege. However, Mr. Davis did not claim any authority to appear before the grand jury, or assume office as "Acting Attorney General" of Alabama, other than the letter of January 31, 2013 (Exhibit "A"). 6

8 After a hearing upon all pending motions, including the motions to dismiss and to quash, the trial court on June 13, 2014 issued an order (Attachment "F") deciding the jurisdictional issues that are the focus of this petition. First, the court found that Mr. Davis was authorized to appear before the grand jury: As to the matter of the authority of Attorneys Davis, Michael 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 supports the position that Mr. Davis was appointed by the Attorney General to assume oversight of a legislative corruption investigation on or around January 31^^, 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 (10), , and 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 dismissed. Prosecutors Davis, Miles Hart and Michael Duffy each appeared before the same grand jury that indicted Petitioner 7

9 as witnesses, as victims, and persons against whom "the piiblic offense with which he is charged" was allegedly committed, all in violation of Ala. Code, However, the court concluded: As to the allegation that the attorneys for the State, W. Van Davis, and Miles Hart, are witnesses to the false statements and perjury acts, therefore constituting a conflict of interest (paragraphs 26-27, 34-38), the motion to dismiss is denied. The case of Ervin v. State, 422 So.2d 123 (Ala. Crim. App. 1983), in which the law partner of the prosecutor was the grand jury foreman, does not apply given the facts that are available to this Court. Specifically, the Court has seen no evidence supporting the allegation that the prosecutor was present or took part in the deliberations of the grand jury. Furthermore, the court has not heard any allegation or seen any evidence that W. Van Davis, Miles Hart or Michael Duffy have independent knowledge of the facts to which the defendant has sworn, which will be required to maintain a conviction of perjury according to Dill v. State, 723 So. 2d 787 (Ala. Crim. App. 1998). (Attachment "F"). Petitioner asserts that mandamus is appropriate because the court committed error in its rulings upholding Mr. Davis's right to appear before the grand jury that returned the indictment (Exhibit "A"), and approving a conflict of interest and violation of Code of Ala by 8

10 Prosecutors Davis, Hart and Duffy (who appeared before the grand jury both as prosecutors and as persons against whom "the public offense with which he is charged" was allegedly committed). These are not mere procedural errors; these are jurisdictional defects in the proceedings below that infect them in a manner that deprived the grand jury of jurisdiction to return the indictment. II STATEMENT OF THE ISSUES Was the mere correspondence between Attorney General Strange and private attorney W. Van Davis (Exhibit "A") legally sufficient to invest Mr. Davis with the authority of "Acting Attorney General" so as to authorize his appearance before the grand indictment in issue here? jury that returned the If not, did his appearance deprive that grand jury of jurisdiction to return indictment? Did the appearances of Prosecutors Davis, Hart, and Duffy before the grand jury, both as prosecutors of the Petitioner and as persons with which he is charged" against whom "the public offense violate , Code of Ala. 9

11 and Petitioner's constitutional guaranty of due process of law under the Constitution of the United States and the Constitution of Alabama? If so, did their appearances in these dual capacities before the grand jury deprive the grand jury of jurisdiction to return the indictment against Petitioner? Did the conflict recusal of Attorney General Strange from "the current investigative matters relating to State Representative Mike Hubbard, to include all criminal matters arising from that investigation" allow him to hand pick a private attorney and two Assistants Attorneys General from his office to appear before the grand jury that returned the indictment in issue here, as proxies? If not, appearances by those assistants before that grand jury violated Petitioner's due process guaranties secured by the Constitution of the United States and the Constitution of Alabama. Was the wording of the indictment so flawed that it failed to confer jurisdiction upon the trial court over Petitioner? 10

12 Ill STATEMENT WHY THE WRIT SHOULD ISSUE Introduction A petition for a writ of mandamus is the proper vehicle by which to challenge the denial of a motion to dismiss for lack of personal jurisdiction. See Ex Parte AutoSource Motors, LLC, 2014 WL (Ala. 2014) and Ex Parte Jackson, 614 So.2d 405 (Ala. 1993), (holding mandamus is a proper remedy to prevent disruption of the criminal justice system.) These jurisdictional and constitutional grounds warrant granting the writ here. The proper functioning of the grand jury system depends on the secrecy of grand jury proceedings, Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979), and Alabama law demands "all grand jury proceedings be secret and that the secrecy of such proceedings remain involate." Code of Ala The secrecy of the grand jury "is essential to the fair and impartial administration of justice." Id. Rooted in this secrecy are principles that grand jurors serve "without fear of apprehension" of outside influence or retribution and that 11

13 "those persons falsely accused of criminal acts are not subject to public scrutiny or display and their otherwise good names and reputations are left intact." Code of Ala (1)- (4). These principles were codified to protect the accused's due process right to "receive a trial by an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). This right extends to a grand jury, as well as to a petit jury. Douglas Oil, supra; Peters v. Kiff, 407 U.S. 493, 495 (1972). Art. I, 9, Constitution of Alabama, more specifically provides "courts may, for reasons fixed by law, discharge juries from the consideration of any case," and this canon is codified by , Code of Ala. to provide for the discharge of a jury "when in the opinion of the court or judge, there is a manifest necessity for the discharge or when the ends of justice would otherwise be defeated." Our Supreme Court has even applied this constitutional and statutory power to discharge an entire jury based simply on potential juror misconduct or undue influence in Woods v. State, 367 So.2d 982 (Ala. 1978), citing as persuasive authority United States v. Hewitt, 517 F.2d 933 (3rd Cir. 12

14 1975) ("Even the appearance of impropriety may infect piiblic respect for a jury infected by that appearance".) In Harris v. State, 2 So.3d 880 (Ala. Crim. App. 2007), this Court upheld discharge of a jury based on conduct that occurred outside the jury room because it "may have resulted in potential misconduct by the jury," and in Woods, supra, our Supreme Court did so to "preserve the impartiality of the jury" under a strict appearance of impropriety standard. Here, the secrecy of the grand jury was not only breached when the Attorney General, after recusing himself, sent an unauthorized private attorney, accompanied by two lawyers under his control, before the grand jury, but also when those unauthorized persons fomented press reports of those grand jury proceedings in clear violation of Code of Ala That Code section, which prohibits any "past or present grand jury witness" from disclosing the nature of any of the physical evidence presented to the grand jury, and disclosure of "any other evidence, testimony or conversation occurring or taken therein." Attachment "G" to this petition contains examples of media reports published in violation of at the behest of proxies for 13

15 General Strange, and includes Petitioner Moore's political opponent's public statements regarding his testimony before the grand jury against Petitioner Moore and Speaker of the House Mike Hubbard. Kyle Mooty, And in this Corner,.., The Enterprise Ledger, Apr , 2014 (Located at kylemooty/article_d338aoc2-c4el-llel-lle3-9f39-001a4bcf6878. html); Petitioner Moore's political opponent's public statements and release of an audiotaped telephone call he disclosed as the basis for Petitioner's indictment (Kyle Mooty, Sparks Fly at Republican Event, The Enterprise Ledger, Apr. 15, 2014 (Located at /enterprise_ledger/news/article_ c4el-lle3-8a08-001a4bcf6878.html); and Petitioner Moore's political opponent's wife's public statement that he and Speaker of the House Hubbard were the subjects of the grand jury's investigation, and evidence her husband presented to it reported at a campaign website. Josh Pipkin for State Representative, post dated Apr. 7, 2014 (Located at stream&hc location timeline), Standing alone, these 14

16 violations of the grand jury secrecy statutes support a finding that Petitioner is due to have the indictment dismissed. They are the result of a series of fundamental, jurisdictional flaws that began on January 31, On that day. General Strange chose to recuse himself from "the current investigative matters relating to State Representative Mike Hiibbard," and from "all criminal matters arising from that investigation." Thereafter, General Strange tainted the grand jury process by his unlawful selection via "letter appointment" of an "Acting Attorney General," and with all that followed. Only the Governor Could Authorize Davis's Appearance General Strange announced his "recusal" from appearing before the grand jury that returned Petitioner's indictment. Published reports of this recusal appear as Attachment "H" to this petition (Kim Chandler, Attorney General Luther Strange Recused From Investigation in Lee County, AL.COM, Aug. 23, 2013 (located at luther_strange_recused_from_in.html) ; Inside Alabama Politics, Vol. 28, No. 22, p. 2, Aug. 27, 2013 (located at from 15

17 _in.html). Alabama law provides the exclusive mechanism, in this instance, for the appointment of an Acting Attorney General: Sec Vacancy in office or unsoundness of mind of attorney-general, state auditor, secretary of state, state treasurer, or commissioner of agriculture and industries. 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 f i l l such vacancy until the disability is removed or a successor elected and qualified. (Emphasis added). Historically, Alabama Governors have twice appointed Acting Attorneys General (when Attorney General Robert Harwood accepted a military commission from 1943 until the end of World War II, and when Attorney General Si Garrett was committed to a mental institution in Texas in 1954). Alabama Attorneys General, Alabama Department of Archives and History, Margaret Anne Barnes, The Tragedy and the Triumph of Phenix City, Alabama, p. 210 (Mercer Univ. Press, 2012); Alan Grady, Alabama L. Patterson, Encyclopedia of Alabama, July 24, Never, before January 31, 2013, has an Attorney 16

18 General of Alabama attempted to recuse himself from grand jury proceedings and then confer "Acting Attorney General" status on a supernumerary district attorney joined by an assistant attorney general remaining under his control. In Riley v. Cornerstone Community Outreach, Inc., 57 So.3d at 704, 722 (Ala. 2010), our Supreme Court declared that it is within the Governor's supreme executive authority to act to enforce the law when necessary due to inaction or inadequate action by another constitutional officer (in that case, the Attorney General). It is authority derived from Art. V, 113, 120 Constitution of Alabama. See Riley, supra, at 719. The Governor has the constitutional authority specifically to appoint an Attorney General whenever it may become necessary for the Governor to do so. Indeed, this Honorable Court need look no further than our Supreme Court's decision in Ex Parte Jim Walter Homes, Inc., lie So.2d 76, 80 (Ala. 2000) for authority that a judge who recuses himself or herself cannot appoint his or her successor because to do so would create an appearance of impropriety. The same principle applies to the Attorney General, for another cogent reason: a supernumerary district 17

19 attorney, "while performing such duties at the request of the Attorney General... shall be designated a special assistant attorney general." Code of Ala See also, Teleco, Inc. V. Corporation Com^n of State of Okl., 649 P.2d 772, 775 (Okl. 1982), (holding that, under similar factual circumstances, for similar reasons, "[i]f personal disqualification prevents the attorney general from fulfilling the duties of his office, the Governor may, if he should so desire, appoint special counsel to perform this function.") Undaunted by these principles. General Strange issued a press release on April 24, 2014 regarding the indictment of Petitioner: "Acting Attorney General Davis is a superniamerary district attorney who was appointed by Alabama Attorney General Strange to handle matters regarding an ongoing investigation involving potential public corruption in Alabama. Rep. Moore's indictment arises out of that matter." Office of the Attorney General, News Release: Acting Attorney General W. Van Davis Announces Arrest of Representative Barry Moore for Felony Perjury and Providing False Statements, April 24, (Located at 18

20 state.al.us/news-471). Impermissibly combining the offices of "Acting Attorney General" and "Supernumerary District Attorney" for Davis, after his own mysterious recusal. Attorney General Strange then made no attempt to separate Davis and two other lawyers assisting him from the improprieties that underpinned his recusal. And when General Strange published his mere "letter appointment" of Mr. Davis, he was careful to redact from it the the reason for his recusal. These circumstances fail to pass due process muster, deprive the grand jury of jurisdiction to return the indictment in issue here, and compelt the issuance of the writ of mandamus. Ex Parte Jim Walter Homes, Inc., Riley, and Woods, supra. For these reasons, it is clear why only the Governor is empowered to appoint an Acting Attorney General. Assistant Attorneys General Hart and Duffy Were Due to Recuse Themselves With Attorney General Strange Matthew Hart is designated "Chief" of the "Special Prosecutions Division" for the Attorney General's Office. See Prosecutions. Hart is not a merit system employee, and he is not a 19

21 commissioned Assistant Attorney General. His mere contract with General Strange, without having been commissioned as an Assistant Attorney General, does not authorize an appearance by him before any grand jury. Michael Duffy is an Assistant Attorney General. Code of Ala., (12) provides that "the duties imposed in this section upon the Attorney General and his assistants shall be performed by the Attorney General or by his assistants under his supervision, direction and control." The grand jury was tainted by his appearance because when recusal is necessary, because the Attorney General would otherwise have a conflict of interest that would prevent him from appearing before a grand jury, there must also be a recusal by all attorneys in his office who are under his supervision, direction and control. Rule 1.10(a), Ala. R. Prof. Cond. requires that lawyers associated in a firm shall not knowingly undertake representation when any of them, practicing alone, would be prohibited by a conflict of interest from doing so. That same logic is inescapable here, given the constitutional provisions that underpin Ex Parte Jim Walter Homes, Inc., Riley, and Harris, supra. Moreover, 2 0

22 General Strange's conflict has been compounded by the fact that Prosecutors Davis, Hart and Duffy appeared before the grand jury as prosecutors of the Petitioner and as persons against whom "the piiblic offense with which he is charged." This violates , Code of Ala., which prevents a person against whom "the public offense... is charged" from also serving as a prosecutor. It also denies Petitioner Moore's guaranty of due process of law, secured by the Constitutions of the United States and Alabama. General Strange's Act of Hand Picking an "Acting Attorney General" Exacerbated An Existing Conflict of Inerest The Attorney General's act of hand picking Mr. Davis, after his own recusal, standing alone, violates Petitioner Moore's due process guaranties secured by the Constitutions of the United States and Alabama. Ex Parte Jim Walter Homes, Inc., Riley, and Harris, supra. Our Supreme Court's decision in Ex Parte Jim Walter Homes, Inc., supra, in particular, addresses this constitutional deprivation in a judicial context that is instructive here:... [T]he courts of this State must avoid even the slightest appearance of 21

23 impropriety. The impartiality of the Courts and the citizens' confidence in that impartiality are the pillars that support our legal process. 776 So.2d 7, 80. The Attorney General is not insulated from this fairness standard of conduct because the Governor, and the Governor alone, has the power to appoint an Acting Attorney General. Constitution of Alabama, Art. V 136. In Woods V. State, supra, our Supreme Court upheld discharge of a petit jury simply because "[t]he fact that a juror who knew the defendant was seen by the court conversing with the defendant's mother was sufficient to raise a presiomption of vitiating influence." Woods, 367 So. 2d at 984. In doing so, it relied upon CZnited States v. Hewitt, 517 F.2d 993 (3"'' Cir. 1975), which stated the legal bedrock for dismissal of a jury under circiimstances like these as the United States Supreme Court did, in Simmons v. United States, 142 U.S. 148, 154 (1891): There can be no condition of things in which the necessity for the exercise of this power (to discharge the jury) is more manifest, in order to prevent the defeat of the ends of public injustice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending 22

24 the trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused. Moreover, Mr. Davis cannot, by any stretch, be deemed an Assistant Attorney General. See Code of Ala He would be disqualified for yet another reason, separate from his unauthorized "letter appointment" by General Strange: due to his engagement in the private practice of law. Code of Ala prohibits the private practice of law by Assistant Attorneys General: All assistant and full-time deputy 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 or full-time deputy attorneys general. All assistant and full-time deputy attorneys general appointed by the Attorney General are hereby prohibited from maintaining private law offices during such time. Ala. Code Exhibit "I" is proof that, since the grand jury returned the indictment in issue here, Mr. Davis has actively engaged in the private practice of law. By these standards. Petitioner Moore seeks issuance of the writ of mandamus to obtain this Honorable Court's review of the trial court's rulings on his motion to dismiss; 23

25 critical jurisdictional and constitutional defects in the grand jury proceedings below tainted the grand jury that returned his indictment. See Ex Parte AutoSource Motors, LLC, 2014 WL (Ala. 2014) and Ex Parte Jackson, 614 So.2d 405 (Ala. 1993). These extraordinary deprivations of due process compel issuance of this extraordinary writ. Fatal Flaws in the Indictment Warrant Issuance of a Writ of Mandamus Code of Ala provides more than hundred indictment forms for the convenience of prosecutors, each of which is deemed sufficient to charge an accused, in Alabama, with a criminal offense. The forms for perjury are found at (75) and (76). Neither were followed in the drafting of Petitioner Moore's indictment. If there is no indictment form for an offense or, as here, a baffling prosecutorial election to disregard the forms provided [ (75) and (76) for perjury], an indictment must follow or closely parallel the criminal statutes that make a charged offense a crime. Matthews v. State, 401 So.2d 241, 245 (Ala.Crim.App. 1981); Hewett V. State, 520 So.2d 200, 204 (Ala.Crim.App. 1987); 24

26 Jackson v. State, 516 So.2d 726, 747 (Ala.Crim.App. 1985). Petitioner Moore's indictment fails to allege that any person or officer with authority administered an oath to him in connection with his grand jury testimony, and it does not allege that his testimony was "willfully and corruptly false." See Exhibit B. See Code of Ala (75) and (76). These are statutory elements of the crimes that the indictment attempts to charge. Without alleging that a person or officer with valid authority administered an oath to him, or that a legally authorized person took a false statement from him, and without any allegation that his testimony was "willfully and corruptly false," there simply has been no valid charging document filed against Petitioner Moore that invokes the jurisdiction of the Lee County Circuit over him. See Code of Ala. 13A , et seq.; CONCLUSION The petition for writ of mandamus should be granted for each of the reasons stated herein. Petitioner therefore respectfully requests that this Honorable Court grant the writ, order that an answer to his petition be filed by 25

27 respondents within a time fixed by that order, and order that the Clerk advise the parties of dates upon which briefs are to be filed, pursuant to Rule 21(b), ARAP. Respectfully submitted, s/william J. Baxley William J. Baxley s/joel E. Dillard Joel E. Dillard BAXLEY, DILLARD, McKNIGHT JAMES & MCELROY 2008 Third Avenue South Birmingham, Alabama Telephone: Telecopier: bbaxley@baxleydillard.com Attorneys for Petitioner OF COUNSEL: Gregory B. McCain, Esq. P.O. Box 1331 Dothan, Alabama Ph: (334) Fx: (334) gmccain@ graceba.net Derek E. Yarbrough, Esq. Motley, Motley & Yarbrough, LLC 117 East Main Street Dothan, Alabama Ph: (334) Fx: (334) dey@graceba.net 26

28 CERTIFICATE OF SERVICE I hereby certify that on this the 11"" day of July, 2014, a true and correct copy of the foregoing Petition for Writ of Mandamus has been served electronically with the Clerks of the Court of Criminal Appeals in a manner that automatically serves the following counsel of record [Judge Walker and the Clerk (original and five copies) are also served by United States Postal Service, First Class Mail]: Honorable Jacob A. Walker, III Circuit Court Judge Justice Center 2311 Gateway Drive, Suite 207 Opelika, Alabama Robert T. Treese, III District Attorney 2311 Gateway Drive, Suite 111 Opelika, Alabama rtreese@leecountyda.org Michael B. Duffy, Esq. Deputy Attorney General P.O. Box Montgomery, Alabama mduffy@ago.state.al.us Matt Hart, Esq. Office of the Attorney General P.O. Box Montgomery, Alabama mhart@ago.state.al.us W. Van Davis, Esq "^^ Street North Pell City, Alabama vandclawqcentruylink.net s/joel E. Dillard OF COUNSEL 27

29 ATTACHMENT

30 LUTHER STRANGE AtTOH^fEY GEMERAt SFTATE OF AU^BAMA OFRCe OF THE AtTOIlNEY G E N E R A * - Jaa(iary3U WASHlNGfONAVewUe (3;H>a-ia-7300 vvtvw.aijo, ALABAMA,C10V WilUarn Van Davis Law Office of W. Van Davis "^ St. N PeU City, AL : O&ax Mr. Davis; I appreciate your a^eemcrnt, pursuant to Section 3* of the Co^e o/akbama, to assume over$ight ot'the State's interests in the current investigative matters relattiig to State Representative Mike Hubbard,, to include a i otiminal mattery arising from that investigation. I am directing the Chief of sny Special Prpsecutioris.Division^ who is supervisilng the iuvestigatioq, to report directly to you regardirig this m^tter.^wwwlibhmig^,. authorized to exercise the full piqwera vested iri metn^those matters. Thank you tor your assistance. isincwrely, Luther Strange Attorfiey General LS:MH;sb

31 ATTACHMENT

32 rndictment THE STATE OF ALABAMA, LEE COUNTY CIRCUIT COURT, SPECIAL GRAND JURY TERM, 2014 COUNT ONE: The Grand Jury of said County charges that before the finding of tliis Indictment and on or about the 24^ day of January, 2014, in the County of Lee, Alabama, FELIX BARRY MOORE, a.k.a. BARRY MOORE whose true name is to the Grand luiy unknown otherwise than stated, did, in a matter under investigation by the Attorney Geneml or prosecutors of his office, to wit: Acting Attorney General W. Van Davis and/or Deputy Attorney General Miles M. Hart and/or Deputy Attorney General Michael B. Duffy, knowingly make materi.ally,.faise^-~fiatitiou$, or fraudulent statement or representation, in his answer to the question set out in boldface and underlined below, to wit: MH; Okay. But to your knowledge, the Speaker hasn't made any assertions to anyone that he was going to impede incentives to keep them here in order to keep people out of a primary race? BM: No,.sir. He's trymg actually to get the deal done. And from what I heard, it's now in the the actual company's ball park. In other words - MH: Okay. In that- BM: To try to get them to stay. But they've got ~ they've got to figure out their finance. I don't know. It's something - they're trying to work out something with the banks to - to get them to stay in Alabama. MH: Okay. BM; Bat I havea^'t heard anything else. in violation of Section of the Code of Alabama (1975), against the peace and dignity of the State of Alabama.

33 COUNT TWO: The Grand Jury of said County further charges that before the finding of this Indictment and on or about the 24* day of January, 2014, in the County of Lee, Alabama, FELIX BARRY MOORE, a.k,a. BARRY MOORE whose true name is to the Grand Jury unknown otherwise than stated, did. In an official proceeding, to wit: the January 2014 session of the Lee County Special Grand Jury, swear falsely by making the false statements set out In boldface and underlined below, to wit: MH: Okay. But to your knowledge, the Speaker hasn't made any assertions to anyone that he was going to impede incentives to keep them here in order to keep people out of a primary race? BM: No, sir. He's trying actually to get the deal done. And from what 1 heard, it's now in the - the actual company's ball park. In other words - MH: Okay. In that - BM: To try to get them to stay. But they've got they've got to figure out their finance. 1 don*t know. It's something they're trying to work out something with the banks to to get them to stay in Alabama. MH: Okay. BM: But 1 havenh heard anything else. and such false statements were material to the proceeding, in violation of Section 13 A- (O-lOl of the Code of Alabama (1975), against the peace and dignity of the State of Alabama,

34 COUNT THREE: The Grand Jury of said Coun^ tlirther charges that before the finding of this indictment and on or about the 24'^ 4ay of January, 2014, in the County of Lee, Alabama, FELIX BARRY MOORE, a.k.a. BARRY MOORE whose true name is to the Grand Jury unknown otherwise than stated, did, in a matter under investigation by the Attorney General or prosecutors of his office, to wit: Acting Attorney General W. Van Davis and/or Deputy Attorney General Miles M. Hart and/or Deputy Attorney General Michael B, Duffy, knowingly make a materially false, fictitious, or fraudulent statement or representation, in his answer to the question set out in boldface and underlined below, to wit: MH: Okay. Now, Mr. Pipkin - you've never said to Mr. Pipkin, hey, if you'll promise to stay out of this race, or words to that effect - if you'll promise to stay out of this race, I'll go back to Speaker Hubbard and tell him that you're out and be sure that he does this economic incentive thing tor us? BM: No,, sir* I told him - I said, if you - if you it was up to him if you want to run. But in my opinion, we were - I was going to do everything I could to make the deal happen, just to keep the jobs. MH: Okay. And - and you didn't assert to him that if he promised to stay out, that you would encourage the Speaker not to do this threat the Speaker had - BM: No, sir. I ~ MH; allegedly made? BM: I told him I couldn't - you know, I can't control the Speaker. I don't have my control in that area. But I was going to do everything I could to make the deal happen. MH: Okay. And you didn't assert to him that the Speaker had, in fact, made that threat? BM: No, sir* in violation of Section of the Code of.alabama (1975), against the peace and dignity of the State of Alabama.

35 COUNT FOUR: The Grand Jury of said County further charges that before the finding of this Indictment and on or about the 24'^ day of January, 2014, in the County of Lee, Alabama, FELIX BARRY MOORE, a.ica. BARRY MOORE whose true name is to the Grand Jury unknown otherwise than stated, did, in an official proceeding, to wit: the January 2014 session of the Lee County Special Grand Jury, swear falsely by making the false statements set out in boldface and underlined below, to wit: MH: Okay. Now, Mr. Pipkin you've never said to Mr. Pipkin, hey, if you'll promise to stay out of this race, or words to that effect - if you'll promise to stay out of this race, I'll go back to Speaker Hubbard and tell him that you're out and be sure that he does this economic incentive thing for us? BM: No, Sir. I told him - I said, if you if you it was up to him if you want to run. But in my opinion, we were I was going to do everything I could to make the deal happen, just to keep the jobs. MH: Okay. And - and you didn't assert to him that if he promised to stay out, that you would encourage the Speaker not to do this threat the Speaker had - BM: No, sir, I- MH: - allegedly made? BM: I told him I couldn't - you know, I can't control the Speaker. I don't have any control in that area. But I was going to do everything I could to make the deal happen. MH: Okay. And you didn't assert to him that the Speaker had, in fact. and such false statements were material to the proceeding, in violation of Section I3A-10-I0I of the Code o f Alabama (1975), against the peace and dignity of the State of Alabama.

36 W. VAN DAVIS Acting Attorney General Miles M. Hart Chief, Special Prosecutions Division

37 ATTACHMENT

38 IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA ELECTRONICALLY FILED 4/30/2014 3:32 PM 43-GC CIRCUIT COUKt OF LEE COUNTY, ALABAMA MARYB, ROBERSON, CLERK STATE OF ALABAMA, vs. Case No. CC FELIX BARRY MOORE, Defendant. MOTION TO DISMISS Comes now, Felix Barry Moore, by and through his undersigned attorneys and moves this Honorable Court to dismiss the instant Indictment and each count thereof on the following grounds, separately and severally: 1. The indictment, particularly counts two and four, does not allege that the Defendant was placed under oath. 2. The indictnent, particularly counts two and four, does not allege that the Defendant was duly sworn to testify. 3. The indictment, particularly comits two and four, does not allege who placed the Defendant under oath. 4. The indictment, particularly counts two and four, does not allege that the person who administered the oatli, if in fact there was one, had authority to administer such oath. 5. The indictment, particularly counts two m\d four, does not allege that the testimony of the Defendant was willfully false. 6. The indictment, particularly counts two and four, does not allege that said testimony was corruptly false.

39 7. The indictment, particularly counts two and four, does not allege that the oath of the said Felix Barry Moore in relation to tlie questions asked was willftiuy and comiptly false. 8. The indictment, particularly counts two and four, does not name the court or officer before whom the oath was taken. 9. The indictment, particularly counts two and four, does not allege that the court or officer before whom the oath was taken had authority to administer it. 10. The indictment, particularly counts two and four, does not allege the necessary allegations of falsity of the matter upon which the perjury is assigned. 11. The indictment, particularly counts two and four, is imlawfuuy vague. 12. The indictment, particularly counts two and four, does not state facts constituting the alleged offense in ordinary and concise language. 13. The indictment, particularly counts two and four, is prolix and repetitious. 14. The indictment, particularly counts two and four, does not state the facts constituting the offense in a manner as to enable a person of common understanding to know what is intended. 15. Section , Code of Alabama, is contrary to the Constitution of the United States and the Constitution of the State of Alabama. 16. Section Code of Alabama, as apphed in these circumstances to Felix Barry Moore, is conti-ary to the Constitution of the United States and the Constitution of the State of Alabama. 17. Section , Code of Alabama, is unconstitutional in its application. 2

40 18. The statements quoted in the indictment as made by the Defendant are not materially false. 19. The statements quoted in the indictment are not materially fictitious. 20. The statements quoted in the indictment are not materially fraudulent. 21. Section , Code of Alabama, is overly broad. 22. The allegations of count one are overly broad. 23. The allegations of count three are overly broad. 24. The statements allegedly made by the Defendant and quoted in the indictment, and each and every count thereof, are materially tme and cannot serve as the basis of any charges. 25. At all times relevant to his testimony, Felix Barry Moore was materially honest witli his statements to the prosecutors and to the Grand Jury. 26. The appearance of W. Van Davis and Miles M. Hart before said Grand Jury constitutes a conflict of interest. 27. The appearance of W. Van Davis and Miles M. Hart before said Grand Jury constitutes a conflict of interest requiring dismissal of the indictment because W. Van Davis and Deputy Attorney General Miles M. Hart are identified as "witnesses" or "victims" in counts one and three of the indictment. 28. The indictment is signed by W. Van Davis as Acting Attorney General and by Miles M. Hart, as Chief Special Prosecutions Division. 29. The indictment does not identify any jurisdiction over which W. Van Davis claims to be the "Acting Attorney General." 3

41 30. The indictment does not specify or identify what the Special Prosecutions Division is, or is a part of, rendering it fatally flawed. 31. For aught appearing, W. Van Davis could be acting attorney general of Timbuktu, having no authority to sign the instant indictment or to appear before the Grand Jury of Lee County, Alabama. 32. For aught appearing, the "Special Prosecutions Division" could be for the City of Baghdad, Iraq. 33. For aught appearing, Miles M. Hart could be the "Chief of the "Special Prosecutions Division" for the City of Baghdad, Iraq and therefore have no authority to sign the instant indictment or to appear before the Grand Jury of Lee County, Alabama. 34. The indictment in its entirety violates Section , Code of Alabama. 35. Counts one and three of the indictment are in violation of Section , Code of Alabama. 36. W. Van Davis, Miles M. Hart and Michael B. Duffy are included in counts one and three as "witnesses" or "victims," and also are the prosecutors of record appearing in this case. 37. The indictment, particularly counts one and three, are contrary to Ervin v. State, 442 So.2d 123 (Ala.Crim.App. 1983). 38. The appearance of W. Van Davis, Miles M. Hart and Michael B. Dutfy as both "witnesses" or "victims" and also as prosecutors is improper and therefore the indictment is fatally flawed. 39. All statements made by Felix Barry Moore, included in the indictment, are materially true. 4

42 40. Questions posed to the Defendant and forming the basis of each count in this indictment were compound, vague, incompetently worded, and cannot be made the basis of a lawfiil indictment. 41. Including counts one and three in the indictment as separate charges is in violation of Dill V. State, IIZ So.2d 787 (Ala.Crim.App. 1998). 42. Including counts two and four as separate charges in the indictment is in violation of Dill V. State, 723 So.2d 787 (Ala.Crim.App. 1998). dismissed. 43. The Grand Jury was improperly constituted. 44. The indictment was returned by an improperly constituted Grand Jury and must be WHEREFORE, premises considered, Felix Barry Moore is entitled as a matter of law to have the Indictment in its entirety and each count thereof separately and severally dismissed. Respectfully submitted, s/william J. Baxley WilUam J. Baxley (BAXOOl) s/joel E. Dillard Joel E. Dillard (D1L005) BAXLEY, DILLARD, MCKNIGHT & JAMES 2008 Third Avenue South Birmingham, AL Telephone: Telecopier: BBaxley@BaxlevDillard.com JDillardCajBaxleyDillard.com 5

43 OF COUNSEL: Gregorys. McCain, Esq. Law Offices of Gregory B. McCain, P.C. 204 North Lena Street Dothan, AL Derek E. Yarbrough, Esq. Motley, Motley & Yarbrough 117 E. Main Street Dothan, Alabama CERTIFICATE OF SERVICE I hereby certify that on this the 30th day of April, 2014, a true and correct copy of the foregoing pleading has been served upon all coimsel of record via the AlaFile electronic filing system and/or via U.S. Mail, postage prepaid. Robert T. Treese, HI District Attorney 2311 Gateway Drive, Suite 111 Opelika, Alabama Luther Strange, Esq. Attorney General P.O. Box Montgomery, AL Michael B. Duffy, Esq. Deputy Attorney General P.O. Box Montgomery, AL Matt Hart, Esq. Office of the Attorney General P.O. Box Montgomery, AL W. Van Davis, Esq '" Street North Pell City, AL s/ William J. Baxley OF COUNSEL 6

44 ATTACHMENT D

45 IN THE CIRCUIT COURT OP LEE COUNTY, ALABAMA STATE OF ALABAMA, vs. Case No. CC FELIX BARRY MOORE, Defendant. SUBPOENA DUCES TECUM TO: Custodian of Records Office of the Attorney General State of Alabama 501 Washington Avenue Montgomery, Alabama You are ordered to appear in the above-named court on the following listed date, time and place and bring the following documents/ books, or papers or other things to be produced on behalf of the Defendant. Date: May 20, 2014 Time: 2:30 PM Place: Courtroom Number 3 Lee County Justice Center 2311 Gateway Drive Opelika, Alabama Things to be produced: Each and every document described by Exhibit "A" attached to this subpoena, and made a part hereof. This subpoena duces tecum is based upon application of the Defendant, acting by and throi h/his undersigned counsel. Date: S Circuit Clerk Lee County Circuit Court 2311 Gateway Drive, Suite 104 Opelika, Alabama (334)

46 Subpoena requested by counsel for Defendant Felix Barry Moore: JoVl E. Dillard J One of the Attorneys for Defendant Baxley, Dillard, McKnight & James 2008 Third Avenue South Birmingham, Alabama Telephone: Telecopier: jdillard@baxleydillard.com RETURN ON SERVICE I certify that I personally delivered a copy of this rder, in person, to /^^/ J/aj^^t' o identified to me at the Office of the Attorney General, State of Alabama, 501 Washington Avenue, Montgomery, Alabama as the appropriate agent for service of process upon the Custodian of Recorda for the Office of the Attorney General of Alabama on /^2^ /jf, J ^^Ck^ Signature and Title of Process Server Sample Form 33 Subpoena Duces Tecum Rule 17.3 [Former Form 83 redesignated as Sample Form 33 effective January 10, 2001.]

47 EXfflBIT "A" DOCUMENTS TO BE PRODUCED BY CUSTODIAN OF RECORDS 1. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for W. Van Davis to appear as, act as, or assume the office of "Acting Attorney General." 2. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authority or approval granted by any public official of or for the appearance of W. Van Davis to, in, or before any Court, or to, in, or before any Grand Jury or Special Grand Jury as "Acting Attorney General." 3. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence any appointment, authorization or approval granted by any public official for the appearance of W. Van Davis in any Court or before any Grand Jury in Lee County as "Acting Attorney General." 4. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for W. Van Davis to appear as, act as, or assume the office of "Supernumerary District Attorney." 5. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authority or approval granted by any public official of or for the appearance of W. Van Davis to, in,- or before any Court, or to, in, or before any Grand Jury or Special Grand Jury as "Supernumerary District Attorney." 6. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence any appointment, authorization or approval granted by any public official for the appearance of W. Van Davis in any Court or before any Grand Juryor Special Grand Jury in Lee County as "Supernumerary District Attorney." 7. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorization or approval by any public official for W. Van Davis to appear as a prosecutor to, in or before any Court in Lee County, Alabama, or as a prosecutor to, in or before any Grand Jury or Special Grand Jury in Lee County, Alabama. 8. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for Miles M. Hart to appear as, act as, or assume the office of "Public Corruption Special Prosecutor." 9. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or pmport to evidence, any appointment, authorization or approval

48 granted by any public official of or for the appearance of Miles M. Hart to, m, or before any Court, or to, in, or before any Grand Jury or Special Grand Jury as "Public Con'uption Special Prosecutor." IG. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence any appointment, authorization or approval granted by any public official for the appearance of Miles M. Hart in any Court or before any Grand Jury or Special Grand Jury in Lee County as "Public Corruption Special Prosecutor." 11. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for Miles M. Hart to appear as, act as, or assume the office of "Deputy Attorney General." 12. Any and all documents in youi: possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorization or approval granted by any public official of or for tlie appearance of Miles M. Hart to, in or before any Court, or to, in, or before any Grand Jury or Special Grand Jury as "Deputy Attorney General." 13. Any and all documents in yom- possession, custody or control tliat show, or purport to show, or that evidence, or purport to evidence, any authorization by any public official for Miles M. Hart to appear as a prosecutor to, in or before any Court or before any Grand Jury or Special Grand Jury in Lee County, Alabama as "Deputy Attorney General." 14. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorization or approval by any public official for Miles M. Hart to appear as a prosecutor to, in or before any Court in Lee County, Alabama, or as a prosecutor to, in or before any Grand Jury or Special Grand Jury in Lee County, Alabama Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for Michael B. Dufty to appear as, act as, or assume the office of "Deputy Attorney General." 16. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorization or approval granted by any public official of or for the appearance of Michael B. Duffy to appear before any Court, or to, in, or before any Grand Jury or Special Grand Jury as "Deputy Attorney General." 17. Any and all documents in your possession, custody or control that show, or puiport to show, or that evidence, or purport to evidence, any appointment, authorization or approval granted by any public official of or for the appearance of Michael B. Duffy to appear before any Court, or to, in, or before any Grand Jury or Special Grand Jury in Lee County as "Deputy Attorney General." 18. Any and all documents in your possession, custody or control that show, or purport to

49 show, or that evidence, or purport to evidence, any appointment, authorization or approval by any public official for Michael B. Duffy to appear as a prosecutor to, in or before any Court in Lee County, Alabama, or as a prosecutor to, in or before any Grand Jury or Special Grand Jury in Lee County, Alabama. 19. Any and all documents in your possession, custody or control that show, or purport to show, evidence, or purport to evidence any recusal by Attorney General Luther Strange from any Special Grand Jury Investigation in Lee County, reasons for any recusal by Attorney General Luther Strange from any Special Grand Jury Investigation in Lee County, creation or membership in any "Public Corruption Special Task Force" (whether designated a "Section" of the Office of Attorney General of Alabama, or otherwise), and hiring, appointment or designation of Miles M. Hart as a classified or unclassified employee of the Office of the Attorney General of Alabama. 20. PLEASE APPEAR BEFORE THE HONORABLE JACOB A. WALKER, III, CIRCUIT JUDGE IN AND FOR THE CIRCUIT COURT FOR LEE COUNTY, ALABAMA AT A HEARING SET FOR 2:30 PM ON MAY 20, 2014, IN COURTROOM NUMBER 3 OF THE LEE COUNTY JUSTICE CENTER, 2311 GATEWAY DRIVE, OPELIKA, ALABAMA AND PRODUCE THE DOCUMENTS SOUGHT BY THIS SUBPOENA UNLESS THE COURT PROVIDES, BY APPROPRIATE ORDER, SUPPLEMENTAL INSTRUCTIONS FOR THEIR PRODUCTION PRIOR TO MAY 20, 2014, VIA A DIFFERENT METHOD OR MANNER OF PRODUCTION. THE UNDERSIGNED ATTORNEYS PLAN TO FILE A MOTION THAT WILL SEEK TO OBTAIN AN ORDER FROM THE COURT ALLOWING PRODUCTION OF THE DOCUMENTS SOUGHT BY THIS SUBPOENA PRIOR TO 2:30 PM ON MAY 20,2014, m COURTROOM NUMBER 3 OF THE LEE COUNTY JUSTICE CENTER, 2311 GATEWAY DRIVE, OPELIKA, ALABAMA 36801, AND WILL NOTIFY YOU OF ANY ORDER ENTERED SUBSEQUENT TO ISSUANCE OF THIS SUBPOENA THAT ALLOWS FOR A DIFFERENT METHOD OR MANNER OF PRODUCTION.

50 ATTACHMENT E

51 IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA 5/15/2014 1:05 PM 43-GC-20I4-OO CIRCUIT COURT:0F - LEE COUNTY,.ALABAMA. " MARY B; ROBERSON, CLERK STATE OF ALABAMA, CASE NO. CC FELIX BARRY MOORE, Defendant. STATE'S MOTION TO QUASH The State of Alabama, by and through Acting Attorney General W. Van Davis, hereby submits its Motion to Quash to the subpoena duces tecum from defendant Felix Barry Moore ("Moore") to the Custodian of Records for the Office of the Alabama Attorney General. The subpoena is improper because it is being used as a discovery device, which is not permitted by the Alabama Rules of Criminal Procedure. For this reason, and the reasons stated below, the subpoena is due to be quashed. 1. Moore was indicted on April 23, 2014 by the Lee County Special Grand Jury for providing false statements relating to a matter under investigation by the Attorney General in violation of , Ala. Code (Counts 1 & 3) and perjury in the first degree in violation of 13A , Ala Code (Counts 2 & 1

52 4). Moore has not submitted a written request to the State for discovery under Rule 16, Ala. R. Crim. P. 2. On April 30, 2014, Moore moved to dismiss the charges based on, among other things, his unsupported assertion that the prosecutors in this case did not have the authority to appear before the Grand Jury or otherwise prosecute Moore for lying under oath. (See Motion to Dismiss, fl26-33). 3. The State timely responded to Moore's Motion on May 8, 2014.^ hi its Response, the State argued that the Motion was due to be denied on its face for a number of reasons, including the fohowing facts: (1) the Lee County Special Grand Jury was properly empanelled, sworn, and had the power and authority to indict Moore; (2) Acting Attorney General W. Van Davis had the authority to appear and present the indictment to the Grand Jury; and (3) Deputy Attorneys General Miles M. Hart and Michael B. Duffy are authorized to assist General Davis in this matter. (See Response, at pp. 2-5). 4. One week before the hearing on the motion to dismiss, Moore served Special Agent Robert Stuart on May 13, 2014, with a Rule 17.3, Ala. R Crim. P., subpoena duces tecum, addressed to the "Custodian of Records, Office of the ' Under Rule 34.1, Ala. R. Crim. P., the State's response would have been due on May 7, This Court, however, granted the State's Motion for Extension of Time, which allowed the State to tile its response on or before May 9, Thus, the State's response was timely filed on May 8, Moore has apparently elected not to file a reply brief in support of his motion, since the time for doing so expired on May 13, See Ala. R. Crim. P (stating that time for filing a reply brief is no later than three (3) days after the response to a motion is filed).

53 Attorney General." (See Subpoena Duces Tecum, attached hereto as "Exhibit A''). The subpoena seeks records pertaining to the authority of the prosecutors to appear before the Grand Jury and bring charges against Moore and further requests that the State produce records at the May 20, 2014, hearing in this case. (See Ex. A.). 5. It thus appears that Moore has no evidence that the prosecutors were not authorized to appear before the Grand Jury or bring the charges in this case, even though Moore made that unqualified assertion to the Court in his Motion to Dismiss. 6. Setting aside Moore's dubious arguments, his Rule 17.3 subpoena duces tecum is due to be quashed because it is improper under the Alabama Rules of Criminal Procedure. Specifically, as the commentary to Rule 17.3 states, "This rule is not intended to be a discovery device because Rule 16 provides for discovery. This rule is to be used to inspect evidence held by witnesses and to require its production at trial or prior to trial." Rule 17.3, Ala. R. Crim. P., Committee Comments; see State v. Lewis, 36 So. 3d 72 (Ala. Crim. App. 2008) (affirming trial court's quashmg of defendant's subpoena duces tecum to Mobile County District Attorney's Office); Sale v. State, 570 So. 2d 862, 863 (Ala. Crim. App. 1990) (holding that trial court's refisal to enforce subpoena duces tecum to a police department and Sherriff s Office did not violate defendant's right to 3

54 compulsory process because, among other things, "the defendant was seeking to use the subpoenas duces tecum as a method of discovery"). 7. The Alabama Court of Criminal Appeals has further explauied the difference between obtaining discovery from the State and compelling the production of evidence by third parties: A fundamental distinction exists between a defendant's right to discovery... and a defendant's right to compel the production of evidence by subpoena... The right to discovery is the right to receive information and docmnents from the prosecution and its agents concerning the case. A defendant's right to discovery is governed and limited by statute [in Alabama, by rule1... The right to compulsory process, on the other hand, is the right to compel witnesses to come mto court pursuant to subpoena and give testimony or produce documentary or other physical evidence. Ex parte Summit Med. Ctr. of Montgomery, Inc., 854 So. 2d 614, (Ala. Crim. App. 2002) (internal citations and quotations omitted) (emphasis added). Therefore, Moore's subpoena is improper here because it is being used to circumvent the Rules of Criminal Procedure governing discovery. See Lewis, 36 So. 3d at 80 ("We agree with the State that based on Alabama law a subpoena duces tecum would have no application to discovery in postconviction proceedmgs."). Therefore, the subpoena is due to be quashed. 8. In this case, Moore has not made any request for discovery from the State under Rule 16, Ala. R. Crim. P. Had he done so, the State would have 4

55 fourteen days to respond, produce records,or ot herwise object to Moore's request. See Rule 16.1(a), Ala. R. Crim. P. To be sure, since the State would not have to respond to a Rule 16 discovery request until after the May 20"" hearing, it appears the only reason why Moore opted to use a Rule 17.3 subpoena is because he is desperate to have some sort of evidence to support his arguments at the hearing. Moore is therefore improperly "seeking to use the subpoenas duces tecum as a method of discovery." Sale, 570 So. 2d at 863; see also State v. Reynolds, 819 So. 2d 72, 79 (Ala. Crim. App. 1999) ("A subpoena duces tecum may not be used in the hope of finding something helpful to the defense. Generally, a subpoena duces tecum may not be used as a fishing expedition for the purpose of discovery or to ascertain the existence of evidence.") (uitemal citations, quotations and alterations omitted) (emphasis added). As such, the subpoena should be quashed. 9. Furthermore, the subpoena is also due to be quashed because it requests information that is protected by the law enforcement privilege, the executive privilege, and the deliberative process privilege. See , Ala. Code (1975); 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) (recognizing the "executive privilege applicable to information held by the government during an ongoing criminal proceeding"); ^ The State does not concede that the information sought by the subpoena is discoverable. 5

56 Sierra Club v. Alabama Environmental Management Com 'n, 627 So.2d 923, 926 (Ala. Civ. App. 1992), rev'd on other grounds, Ex parte Ala. Dept. of Environmental Management, 627 So. 2d 927 (Ala. 1993) ("The deliberative process privilege is a sub-category of the executive privilege."). In accordance with the foregoing, the State respectfully requests that this Court enter an Order quashing defendant Felix Barry Moore's Subpoena Duces Tecum to the "Custodian of Records, Office of the Attorney General." Respectfully submitted this 15* day of May, W. VAN DAVIS ACTING ATTORNEY GENERAL OF COUNSEL: W. Van Davis Acthig Attorney General '^ St. North Pell City, AL vandclaw@centurylink.net Is/ Michael B.Duf^ Michael B.Duffy Deputy Attorney General mduffy@ago.state.al.us Miles M. Hart Chief, Special Prosecutions Division mhait@ago.state.alus OFFICE OF THE ATTORNEY GENERAL STATE OF ALABAMA 501 Washington Avenue P.O. Box Montgomery, AL (334) (334) FAX 6

57 CERTIFICATE OF SERVICE I hereby certify that I have, this the 15 day of May 2014, electronically filed the foregoing using the AlaFile system which will send notification of such filing to the following registered persons, and that those persons not registered with the AlaFile system were served a copy of the foregoing by U. S. mail: Gregory B. McCain, Esq. P.O. Box 1331 Dothan, Alabama (334) Office (334) Fax gmccain@graceba.net Derek E. Yarbrough, Esq. Motley Motley & Yarbrough, LLC 117 East Main Street Dothan, Alabama (334) Office (334) Fax motlev@graceba.net William J. Baxley, Esq. Joel E. Dillard, Esq. Baxley, Dillard, Mcknight & James 2008 Third Avenue South Birmingham, AL Telephone: Telecopier: BBaxlev@BaxleyDillard.com JDillard@BaxlevDillard.com I si Michael B. Duffy Deputy Attorney General 7

58 EXHIBIT A

59 IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA STATE OF ALABAMA, vs. Case No. CC FELIX BARRY MOORE, Defendant. SUBPOENA DUCES TECUM TO: Custodian of Records Office of the Attorney General State of Alabama 501 Washington Avenue Montgomery, Alabama You are ordered to appear in the above-named court on the following listed date, time and place and bring the following documents, books, or papers or other things to be produced on behalf of the Defendant. Date: May 20, 2014 Time: 2:30 PM Place; Courtroom Number 3 Lee County Justice Center 2311 Gateway Drive Opelika, Alabama Things to be produced: Each and every document described by Exhibit ''A" attached to this subpoena, and made a part hereof. This subpoena duces tecum is based upon application of the Defendant, acting by and thromgh/his undersigned counsel. Date: Circuit Clerk Lee County Circuit Court 2311 Gateway Drive, Suite 104 Opelika, Alabama (334)

60 Subpoena requested by counsel for Defendant Felix Barry Moore: JoVl E. Dillard One of the Attorneys for Defendant Baxley, Dillard, McKnight & James 2008 Third Avenue South Birmingham, Alabama Telephone: Telecopier: jdillardl3baxleydillard. com RETURN ON SERVICE I certify that I personally delivered a copy of this order, in person, to J/^J-rT identified to me at the Office of the Attorney General, State of Alabama, 501 Washington Avenue, Montgomery, Alabama as the appropriate agent for service of process upon the Custodian of Recorda for the Office of the Attorney General of Alabama on /J, ^ J Xic{>^. ^^C-i^ ^^0^ Signature and Ld Title of Process Server Sample Form 33 Subpoena Duces Tecum Rule 17.3 [Former Form 83 redesignated as Sample Form 33 effective January 10, 2001.]

61 EXHIBIT "A" DOCUMENTS TO BE PRODUCED BY CUSTODIAN OF RECORDS 1. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for W. Van Davis to appear as, act as, or assume the office of "Acting Attorney General." 2. Any and all documents in your possession, custody or conti"ol that show, or purport to show, or that evidence, or purport to evidence, any appointment, authority or approval granted by any public official of or for the appearance of W, Van Davis to, in, or before any Court, or to, in, or before any Grand Jury or Special Grand Jury as "Acting Attorney General." 3. Any and ail documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence any appointment, authorization or approval granted by any public official for the appearance of W. Van Davis in any Court or before any Grand Jury in Lee County as "Acting Attorney General." 4. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for W. Van Davis to appear as, act as, or assume tlie office of "Supernumerary District Attorney." 5. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authority or approval granted by any public official of or for the appearance of W. Van Davis to, in,- or before any Court, or to, in, or before any Grand Jury or Special Grand Jury as "Supernumerary District Attorney." 6. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence any appointment, authorization or approval granted by any public official for the appearance of W. Van Davis in any Court or before any Grand Jury or Special Grand Jury in Lee County as "Supernumerary District Attorney." 7. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorization or approval by any pubhc official for W. Van Davis to appear as a prosecutor to, in or before any Court in Lee County, Alabama, or as a prosecutor to, in or before any Grand Jury or Special Grand Jury in Lee County, Alabama. 8. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for Miles M. Hart to appear as, act as, or assume the office of "Public Corruption Special Prosecutor." 9. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorizafion or approval

62 granted by any public official of or for the appearance of Miles M, Hart to, in, or before any Court, or to, in, or before any Grand Jury or Special Grand Jury as "Public Corruption Special Prosecutor." 10. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence any appointment, authorization or approval granted by any public official for the appearance of Miles M. Hait in any Court or before any Grand Jury or Special Grand Jury in Lee Count>' as "Public Corruption Special Prosecutor." 11. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for Miles M. Hart to appear as, act as, or assume the office of "Deputy Attorney General." 12. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorization or approval granted by any public official of or for the appearance of Miles M. Hart to, in or before any Court, or to, in, or before any Grand Jury or Special Grand Jury as "Deputy Attorney General." 13. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any authorization by any public official for Miles M. Hart to appear as a prosecutor to, in or before any Court or before any Grand Jury or Special Grand Jury in Lee County, Alabama as "Deputy Attorney General." 14. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorization or approval by any public official for Miles M. Hart to appear as a prosecutor to, in or before any Court in Lee County, Alabama, or as a prosecutor to, in or before any Grand Jury or Special Grand Jury in Lee County, Alabama. 15. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, appointment, approval or authorization of or for Michael B. Duffy to appear as, act as, or assume the office of "Deputy Attorney General." 16. Any and all documents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorization or approval granted by any public official of or for the appearance of Michael B. Duffy to appear before any Court, or to, in, or before any Graiid Jury or Special Grand Jury as "Deputy Attorney General." 17. Any and all dociunents in your possession, custody or control that show, or purport to show, or that evidence, or purport to evidence, any appointment, authorization or approval granted by any public official of or for the appearance of Michael B. Duffy to appear before any Court, or to, in, or before any Grand Jury or Special Grand Jury in Lee County as "Deputy Attorney General." 18. Any and ail documents in your possession, custody or control that show, or purport to

63 show, or that evidence, or purport to evidence, any appointment, authorization or approval by any public official for Michael B. Dutfy to appear as a prosecutor to, in or before any Court in Lee County, Alabama, or as a prosecutor to, in or betbre any Grand Jury or Special Grand Jury in Lee County, Alabama. 19. Any and all documents in yoirr possession, custody or control that show, or purport to show, evidence, or purport to evidence any recusal by Attorney General Luther Strange from any Special Grand Jury Investigation in Lee County, reasons for any recusal by Attorney General Luther Strange from any Special Grand Jury Investigation in Lee County, creation or membership in any "Public Coiruption Special Task Force" (whether designated a "Section" of the Office of Attorney General of Alabama, or otherwise), and hiring, appointment or designation of Miles M. Hart as a classified or unclassified employee of the Office of the Attorney General of Alabama. 20. PLEASE APPEAR BEFORE THE HONORABLE JACOB A. WALKER, III, CIRCUH JUDGE IN AND FOR THE CIRCUIT COURT FOR LEE COUNTY, ALABAMA AT A HEARING SET FOR 2:30 PM ON MAY 20,2014, IN COURTROOM NUMBER 3 OF THE LEE COUNTY JUSTICE CENTER, 2311 GATEWAY DRIVE, OPELIKA, ALABAMA AND PRODUCE THE DOCUMENTS SOUGHT BY THIS SUBPOENA UNLESS THE COURT PROVIDES, BY APPROPRIATE ORDER, SUPPLEMENTAL INSTRUCTIONS FOR THEIR PRODUCTION PRIOR TO MAY 20, 2014, VIA A DIFFERENT METHOD OR MANNER OF PRODUCTION. THE UNDERSIGNED ATTORNEYS PLAN TO FILE A MOTION THAT WILL SEEK TO OBTAIN AN ORDER FROM THE COURT ALLOWING PRODUCTION OF THE DOCUMENTS SOUGHT BY THIS SUBPOENA PRIOR TO 2:30 PM ON MAY 20, 2014, IN COURTROOM NUMBER 3 OF THE LEE COUNTY TUSTICE CENTER, 2311 GATEWAY DRIVE, OPELIKA, ALABAMA 36801, AND WILL NOTIFY YOU OF ANY ORDER ENTERED SUBSEQUENT TO ISSUANCE OF THIS SUBPOENA THAT ALLOWS FOR A DIFFERENT METHOD OR M.'VNNER OF PRODUCTION.

64 ATTACHMENT F

65 ELECTRONICALLY FILED. 6/13/ :34 AM. : 43-CC-2G CIRCUIT COURT OF LEE COUNTS,.ALABAMA./ :MARY-B. R0BERSON,-"CLERK- IN TIIE CIBlCUIT COTOT OF LEE COUNTY, Ai^AOAivi^ STATE OF ALABAMA, * Plaintiff, * vs. * CC FELIX BARRY MOORE, * Defendant * ORDER REGARPirJG MOTION TO DISMISS AND MOTION TO QUASH The parties appeared for a, healing on May 20^*',, Hon. William Davis appeared on behalf of the Attorney GenerEl's Office, representing tlie interests of the State of Alabama. Hon. William Baxley appeared on l^ehalf of the Defendant. The parties presented arguments regarding the defense's pendiiig motion to dismiss the indictinen:s and the state's motion tc quash a subpoena duces tecum. The C ourt took the matters under advisement and allowe<l each party an opportunity to submit additional briefs regarding the issues. As to the matter of the: authority of Attorneys C'avis, Michael Flart and William Duffy to empanel the Grand Jury whica indicted the defendant (paragraphs 28-33), the motion to dismiss is denied. The Court accepted an in camera document from the State whxzh support's the position that Mr. Davis was appointed by the Attorney General to assume oversi ;ht of a legislative comiption investigation on or around Janua::y 3 T'^, 2013, as well as any criminal matters arising from that investigation. Furthermore, the letter intbnus Mr. Davis that the cliief of the special prosecution division will report directly to him. These actions appear to be supported by the authority of sections (10), , and 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 C'ourt finds that the subpoena duces tecum addressed to the Custodian of Records, Office of the Attorney General is due to be qnashed. t

66 As to the allegations ttiat the perjury indictments are missing material ele;nents of the offense (Paragraphs 1-10), the motion to dismiss is denied. The rule in Alabama is that an indictment is sufficient if it charges the elements of the statutory offense in the \\ ords of the statute. See Nance V. State, 424 So.2d 1358 (Ala. Criiru App. 1982); Ex parte Allred. 393 So. 2d 1030 (Ala. 1980). The purpose of this rule is to place f :ie defendant on notice of 1he nature of the accusation against him so that he may prepare a defense. Furthermore, the commentary to Rule 13.2 of the Alabama Rules ot Criminal Procedure coniirms that pleadings in criminal matters have been simplified and that formal averments such as the qualifications of grard jurors are no longer required. Rule 13.2(e) also provides that the defense may request a more definite statement prior to entry of any plea and upon a showing of good cause, if the def snse desires additional details of the offense. In certain circumstances^ the Court can also grant an amendment of the indictment under Rule 13.5 of the Alabama Rules of Criminal Procedure upon formal motion* The offense for Perjuiy in tlae first degree is codified in 13A of the Code of Alabama, and states that "[a] person commits tire crima of perjury in the first degree when in sxxy otficial proceeding, he swears falsely and his false statsment is material to the proceeding in which it is made." It is not miindatory for the State to use the form indictments provided in , as the first sentence cieariy states that "[t]he forms of indictment set forth in this section in all cases in which they are applicable, are sufficient, and analogous forms ma) be used in other cases."' The Court notes that has not been updated since 1961, while the current perjury legislation was enacted in llie Court finds that Count 2 anc. Count 4 are sufficient as they track the ekanents of die statutory offense m die words of the siiatute. As to the allegation that the perjury indictments are uivlawtuuy vague or that they violate of the Code of Alabama (paragraphs 11 ~ 14), the motion to dismiss is denied. The Court finds that the indictmetits state facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a, manner as to enable a person of common understanding to know what is intended and with a de^pree of ceitahity which will enable the ' The Court notes that the cases of Matthews v. State, 401 So. 2d 241 (Ala. Cdra. App. 1981), He vvett v. State, 520 So. 2d 200 (Ala. Crim. App. 1987), and Jackson v. State, 516 So. 2d 726 (Ala. Ciim. App. 1985), do not state tliat it is oiily acceptable for the language ^f the mdicttuent to closely parallel the statute when no tbnii.s available m Rather^ these cases generally present that when no form is available to follow, followmg tlie langiiage of the statute is the best way to ensure jm Todictnxent'a validity, No.mainlatory or exclusive language is present in the statute. 2

67 court on conviction to pronounce the proper judgment. The Court also finds that (he indictments regarding false statements are adequate to comply with of the Code of-'uabania, as well as the Constitutions of the United States and Alabama. Therefore, as to the allegation that is unconstitutionai and overly broad (paragi:apha 15-17, 21-23), tho mofion to dismiss is denied, Tlie defense alleges that the statements in the irdictinent are not materially false, fictitious, or fraudulent; in reverse, the <lefense alleges drat the statements are ma':erially true and the defendant was at all times materially honest during his testhnoiiy. (Paragraphs 18-20,24-25,39). These are factual issues related to elements of each offense to be resolved by a jury. Therefore, the motion to dismis.s is denied on these grounds. As to the allegation that the attorneys for the State, W, Van Davis and Miles Hart, are witiresses to the false statements and perjury acts, therefore constituting a couflic: of interest (paragraphs 26-27,34-38), the motion to dismiss is denied. The case of Brvin v. State. 422 So. 2d 123 (Ala. Crim. App. 1983), in which the law piirtner of the prosecutor WES the grand jury foreman, does not apply given the facts that are availatile to this Court. Specifically, the Court has seen no evidence supporting the allegadon that the prosecutor was present or took part in the deliberations of the grand jur^ Furthermore, the Court has not heard any allegation or seen any evidence that W. Van Davis, Miles tiart, or Michael Duffy have independent knowledge of the facts to which the defendant has sworn» which will be required to maintain a comnction of perjury according to Dill v. S::ate, 723 So. 2d 787 (Ala, Crim, App. 1998). As to the allegation that the false statement indictments and the perjury Indictments are multipucitous and contrary to the holding of Dill (paragraphs 41-42), the motion to dismiss is denied. Count one (false statement) and Count two (perjuiy) concern a statement made by the defendant about his knowledge of statement made by, third party. Count three (],alse statement) and Count four (perjury) con(;em a statement made by the defendant about his o\/n statements or assertions to an unrelated third party. It appears to this Court that the falsity of each statement could be proven by separate aid distinct evidence. Therefore, it appeal's that this case is disfinguishable from the facts of Dili in which each statement was held to concern the same material matter. However, th<! Court notes that the holding in Dill was reached due to an appeal of a convicfion in the trial court; the appellate court was not addressing the merits of amotion to dismiss. 3

68 The Comt is without sufficient infbnuatioii, or hsgal authority to discern whether the allegations in paragraphs 40, ^^3 or 44 have any merit. ITiercforCj the motion to dismiss with respect to these paragraphs is denied. Done dais 13^'May of June, C^ircuit Judge cc: "W. Van Davis Miles Hart Michael Duffy Bill Baxley Joel Dillard Gregory McCain Derek Yarbrough 4

69 LUTHER STSANQE; STATE OF AUIBAMA OFRCK OF THE AtTOHNEY GENERAU January 31,2013 P.O. Doxaootaa (;J3-4) 3( WilUam Van Davis Law Office of W. Van Davis '''^ St. N Pell City, AL 3512, Dear Mr. Davis: I appreciate your agreement, pursuant to Section 3* of the Co^e o/akbama, 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 chat investigation. I ara directing the Chief of my Special.Prosecutions Pivisfon, who h supervising the investigation, to report directl> to you regarding this '^^ntt^^wkththjili^^ authorized to exercise the ml powers vested in tne m;th(5se matters. Thank you tor your assistance. :Sinc>2rely, Luther Strange Attontey General LS:MH;sb

70 ATTACHMENT G

71 7/8/2014 Sparks fly at Republic emt~ : News Sparks fly at Republic event Posted: Tuesday,^nl 15, :45 pm There were two incumbents and their challengers in\ited to speak at Monday night's meeting of the Coffee County Republican Club, but a politician not on hand may have received as many jabs during the rather heated evening's events. Embattled Alabama Speaker of the House Mike Hubbard, whom House of Representative District 91 challenger Josh Pipkin admitted to having to testify at a grand jury in Lee County involvmg Hubbard, was mentioned often in a negative light by Pipkin and defended regularly by incumbent Barry Moore. Mean^\hile, State Senator Jimmy HoUey (District 31) stayed relatively calm following some the jabs taken at him by challenger Garreth Moore. Barry Moore spent much of the evening in defense mode as Pipkin played the aggressor, attacking his relationship with Hubbard. Pipkin discussed the phone recordings that had been leaked to The Ledger between himself and Moore -where Moore speaks of Hubbard's displeasure with Pipkin challenging Moore in the Republican Primary. Pipkin claims threats were made to him and others, using the projected business venture with Enterprise Electronics and Enterprise State Community College as a hostage if Pipkin continued his pursuit for office. Pipkin even referenced Republican Committee Chairperson Sue Neuwien, saying she knew of the threats in October "but did nothing about them." Pipkin said there were three parties in Alabama, 'The Republican party, the Democrat Party, and the Mike Hubbard Party. One is corrupt and I believe the Democrat Party is too." Barry Moore began his speech: 'Enough about negative. Let's talk about positive" Barry Moore focused on how the Democrats and AEA (Alabama Education Association) "are dragging him tlirough the mud," and added that he was always on the 'hate side" of the AEA" He called AEA the "900-pound gorilla in the room." Barry Moore said when he first went to Montgomery in 2010 he was part of the first Republican majority in Alabama in 136 years. Pipkin noted that he has taken no special interest contributions to his campaign, Vihile noting 86 percent of Barry Moore's contributors are special interest groups. "Oh, by the way, I have the most conservative voting record of 140 members " Barry Moore said. An audience member submitted a question to each candidate asking if they would vote for Hubbard as hap://wjm'.dothaneagle.corn/enter :^isejedger/nevig/arlicle_969^^ 1/3

72 7/8/2014 Sparks flyat R^ubiic event- ; News Speaker if they get in office again. Barry Moore said, "As it stands right now, I would support Mike. He has done "v^at he said he would do. If something comes up and I shouldn't, I won't." Pipkin responded to the same question, 'ISIo. Mike Hubbard called and threatened jobs in this county. A vote for him is irresponsible. He is about to be indicted more than likely. He has forced me to testify in Lee Coimty and has forced my opponent to testify." Pipkin asked Barry Moore "why he had hired a defense attorney for the Lee County grand jury. Moore responded that he had not taken a defense attorney to Lee County. Pipkin also said that Moore fully admitted to voting on the Accountability Act without reading it. "I think it's impossible to run a campaign without talking about your opponent," Moore said. "Sometimes races get a little muddy." HoUey said it was 'hot in his job description" to beat up other Republicans, adding that if some mud was slung on the wall that he would just come back in a few minutes and wipe it off. Garreth Moore, a former state representative said he did not want to sit by and watch his party not have a choice. "Something we didn't have four yeai's ago was a choice," Garreth Moore said. 'I spent four years in the House. You'll not find one vote where I supported a tax increase. You will see solid, pro-life votes and support for the Second Amendment and pro-business votes. We were trailbiazers. We stood for principals when you were not supposed to win in South Alabama (as a Republican)." Holley said the last four years had been very successful for Alabama after 136 years of control by Democrats in the House and Senate. "We have had much progress made in the State of Alabama," Holley said. 'We have improved the lives of the people of Alabama. The changes we made in Alabama have been very powerful. We've enacted common sense fiscally and have the lowest unemployment rate in the southeast United States. We have created 60,000 newjobs." Garreth Moore's biggest gripe toward Holley was the fact that Enterprise has not seen a four-lane highway to Troy. "Not so much as a truck passing lane has been added," he said. Holley said there had been talks with the highway department and nothing could be done regarding turning lanes. "We can send people to the moon and we're even looking for an airplane on the bottom of the Indiana Ocean, so I don't accept that argument." Garreth Moore is being backed by the AEA, something he said the Republican party should work with 2/3

73 7/8/2014 Sparte flyat RqjuWic e\ent- : News more closely. All fow opponents did say they were against Common Core, with Garreth Moore saying it had begi=mi as a good idea but had been hijacked by the federal government. The Coffee County Republican Women's meeting will be at noon Wednesday at Enterprise County Club with Lt. Gov. Kay Ivey and her challenger Stan Cooke. There will also be candidates for the Secretary of State race. The Republican Women's yard sale will be Friday, AprW /3

74 7/8/2014 In this co-ner.., - : K^e Moo^ And in this comer... Posted: Wednesday, April 16, :30 am "An eye for an eye will only make the whole world blind. " Mahatma Gandhi PoFolks Restaurant did not have valet parking Monday night. There were no movie stars sitting in the audience, no ropes surrounding a boxing ring, and although I'm sure he would have loved the verbal fighting that took place inside the diner, Don King missed out on this promotional opportunity. It was not exactly boxing because "s^hatever gloves may have been worn through the door appeared to have been tossed aside once the evening's festivities began. It was not billed as a debate, but at times that's exactly v^iat it turned into. The challengers for both the District 31 Senate and District 91 House seats threw the most punches, but just howmany landed are uncertainfor now. The judges' (voters) scorecards will not be tallied until the June 3 Primary. While the battle for Senate (District 31) - incumbent Jimmy Holley and challenger Garreth Moore was entertaining with some nice jabs, the sparring ended and fighting began with Representative (District 91) incumbent Barry Moore and challenger Josh Pipkin. Upper cuts and roundhouse hooks were the order. Pipkin was the most aggi-essive, regularly connecting Moore to the Mike Hubbard (Speaker of the House) fiasco currently taking place with a grand jury investigation in Lee County. Before Monday night, no one could officially call it a grand jury investigation regarding Hubbard, but Pipkin, who along with Moore has testified before that grand jury, said he received permission from the attorney general's office to publicly address the issue at the Coffee County Republican Club. There were a lot of good people at PoFolks Monday night, people -^o are hoping for the best possible leadership to represent the Wiregi-ass in Montgomery. Some of them became quite agitated at the bickering. With all of what's wrong in Washington these days, particularly matters than affect the Wiregi"ass region, wouldn't you think the Republicans would be a bit more focused on uniting for strength rather than fighting with division? Let the candidates throw dirt if they wish. If they're clean, it won't stick. As for the public, rather than lashing out against one, the loudest statement will be made election day. Regardless of \\ho gets in, those not supporting their party's representative will only weaken their party of choice. By the looks of the division at Monday night's get-together. Coffee County Republicans are headed in that direction. le.com/enterprisej edger/opinio(vcdlumns/l^e_m 1/2

75 7/8/2014 /yidinthis corner... - : KvfeMooty "lam at peace with God. My conflict is with Man. "~ Charlie Chaplin httpr/aaww-dotharieaglaconyenterprisejedger/opiniorvcdurrms/!^

76 4/21/2014 Jctsh Pif^n for State R^esentati\e Facebook Q Keep ire logged in. ForQot your passw.'^rd?, Josh Pipkin for Stalo Representative is on Facebook. To connect with Josh Pipkin for State Representative, sign up for Facebook today. Josh Pipkin for State Representative 1,046 likes 133 talking about this PoFrtlcian As your representatwe, I wi engage the people of Coffee County and be the voice you deserve in Montgomery.,046 About Photos Ukes Highlights Josh Pipkin for State Representative M 17 hours ago Happy Easter from our family to yours! He is risen. Recent Posts by Others Max Whittaker 3osh I will be glad to put one of your signs in my yard. As a... 7 s April 6 at 1Q-A2sm See AH More Posts A A a^d Sims I'm not in your district, but I sure wish you the best. Your op... 1 March IS at 4:55am Unda Goodson I need a s^n on my bwn, We are with you! 1 -MardiHatlitaiam John Qinnare Pipkin for State Representative! I i February 7 at 3:09pm 3olin Cuntiare Pipkin for State RepresentativelH February 7 at 3:09pm Josh Pipkin for State [Representative April 17 Friends, I need your help to win tiiis thing! If any of you are wiiling to lend a hand and push our campaign on to victory, 1/14

77 4/21/2014 Josh PipUn for State K^esaitallve FacebooK Uke Comrmnt share M,ESSAGE me for deteils of how to get invoived. Christie Doiier Hliard, Arrber Moates, Kazia CoierrBn and 84 others like this. Top CortTrents ^. Ellen Mchols So sweet! 10 hours ago Dianne Brooks Beautiful fanfly, 15 hours ago 3osh Pipkin tbr State Representative shared a link. ^ April 1& VOLUNTEERTODAY! Coffee County needs principled conservative leadership!!! I will never sit back and let special Interest groups or.tiie power, brokers in Montgomeiy hold our communltj' hostage; You won't have to won7 about who I answer to. I will fight to b,.. See More Sparks fly at Republic event y There were two incurrbents and their cfialiengers invited to speak at Monday night's rrseting of the Coffee County Republican Cbb, but a politician not... uke Con'ment Share Uke Comfnant Share Karen Hudson Miller, Zenobia Baker, Stephanie &Tinson and 32 others like this. Top Conrrents Karen Hudson Miller Don't know you'personally but you gotrrv. vote!! 2-Aprill7at3;07am Joshua Pipkin Thank you so rrwch for your support! Aprill7at7;54am Sanelfei Green Wilismson, Laura Averett Wyrosdick, Top Conrrents.Jinrrv Parker and IS others like this. 2osh Pipkin foi- State Representative, If you don't trihd, send rre your address and We wi5 get something out there! Tlienk youl April 17 at 2:5Sphi Josh Pipkin for State Representative Thanks!!! April 17 3t2:S2pm View 4 more coniments ^ Katie Frey Pipkin Proud of you Josh! 2 April IS at 3:26pm V]evj 1 more conrrknt Josh Pipkin for State Representative shareda link. AprH.IO The Elba Clipper did a good story on our "Meet and Greet" Monday night in Elba. Thanks to all the folks that came out to say hello and offer their support. I explained to the crowd that Tm not beholden to any special interests except the interests of the people back home. I look forward to taking Coffee County's voice back to the State House. Josh Pipkin for State Representative April J1 Ed/ted Congratulations to the 2013 Enterprise Man of the Year Hector Cardona, Woman of the Year Kelli Atldnson Owens, and Youth of the Year Olani Borders! I had the honor of presenting the award to Hector last night! It was a blast to serve the past year and know you will enjoy it, as well. Thank you Pilot Club for hosting such a great event, with Marcella Cardona, fuseaction=view5tory&newsn}=71678lcat = 1 Bba Clipper elba-dipper, com Josh Pipfdn, candidate for the Alaban-e House " CN'strict 91 seat, held a "Meet and Greet"event Monday evening, April 7, in Elba, A large crowd attended the event, taking the time to... Like * Commsnt Share Jinrny Parker, Byron Shehee, Debbie Newman and 17 others like tliis. Top Contrents oshpipki n2014 2/14

78 4/21/2014 Josh RpknforState.R^esenteti\ei Facebook Amy Vaughan FolmarMr. FerrinCox is a pro,..nice paper and people. I know he enjoyed speaking with you, l'aprilldat4;59pm David Speigner stay strong Josh, Looks Qke you are doing a good Job. It didnt take long to find out how it couldbe did it? I believe you cari handle the situation AprillOatSilSpm View 1 frore conment Josh Pipkirt for State Representative April io The whole family was abis to go to Joshua's soccer game at the YMCA on Tuesday. There isn't much mora entertaining than watching 3 a 4 year olds run in circles chasing a ball (that is^ when they're not picking dandelions) ail while their grandparents cheer them on. We would also like to thank ever^'one for the outpouring of lo^^ and support we've gotten during the past two weeks. We appredate it more than you know!' Uke CorrrtKnt Share Wendy C. Barber, Gteia Nagy, Teresa Arnold Samrons afid 34 others like this. Top Cormants K^tie Frey Pipkift Kislli AtHnsan Owens won worren of the year. April U at io;50am Karen Maddox Love Wiio got Worran? April 11 at 8:07am 3osh Pipkin Por State Representative shared a fink,,adi-ji3 "Until regular people force a change, you can expect Weeks like the.last one in our State House to keep happening. Because thafs the corrupting power of money." a pps/pbcs,dll/artide? /yd= oo55 r Lilffi ' Corment Share Karen Schaefer Srrith, Teressa Ann Wilfems, Ian Oceans and 74 others like this. Top Comments Astra Holt ^rkley Ttie best soccer team on the planet and coach;-) 3-Aprill0atl2;5Ipm Katie Frey Pipkin Photo credit for this goes to I-teribethTdntt'erlin Andho, TharJkyou!!! I AprHlQat2:15pm View 1 more comnsnt Josh Pipkin for State Representative April 7 Edited Last night, I was not thrilled when I learned that my wife had gotten into a facebook exdiange with my opponent Now tiiat I have read her post, I cannot tell you how "proud lam that my. diiidren have such a strong. Godly and articulate mother. Barry Moore insinuated that it was my fault that he has had a rush in news coverage as of late. He then stated that he was "sorry" that the public has had to endure it. My wife responded with the following and her words could not have been any more appropriate. Needless to say, Mr. Moore didn't offer a response, "Barry. Tm sorry for a lot of things, too. Igm sorry that, when I was hea^^ly pregnant with twins, you chose to threaten my family. Just Saying: Too many of our leaders just following the money www, montgomeryadverti5er.com Money ts the root of all evil. You used to hear that Bible verse all the time. Like Connrfient.-Share Lori Johnson, Clint Grantham, Reglna Cannon Gulley and 7 otiiers like this. Top Conmsnts Josh Rpkin for State Representative I would never fee! that a feilow Alabamian^ opinfon didn't rrhtter! Hovrever, I do believe that first and foretrost, m/ftlterestswill lie with rny osnstituents. But I also understand the delfcate balance. As a state representative, il: wih be rnj respons... SaeMoip 5-Apn18at6:40pm EKU ^-ooks To Mr. Hawkins, I dont presume to answer for Mr. pipkin, but as a future constituent (of Mr, Pipkin), I want representative to represent NE at the state level, and not someone!n another district. It's possible that what! want, and need, aresirrtl,.. See More " 2-April8atl:41pm View 2 npre comments Josh Hpkin for State Representative April? Don't forget to join us tonight from 5:30-7:30 at National Security in Bba, Our campaign will be having a Meet and Greet and encourage the public to come! convj oshpi phi n2014 3/14

79 4/21/2014 Josh Pipte'n for St^e Representative [ Facebook Vm sorry that, on the evening of these threats, I went to my parents' house at midnight sobbing, scared and disgusted. I'm sorry that you made the same threats to people around the community. I'm sorry that Josh and these community leaders had to miss time from work to spend tjme teslafi^ng infront of a lee- County Grand Jury. Tm very sorry you used your own constituents' jobs as a bargaining chip. I'm sorry about the other unscrupulous. tactics you've used to deprive the citizens of Coffee Couniv of a choice this eledion season. You and I^ike Hubbard had been a part of the Lee County grand jury investigation long before losh decided to run. Your actions were being monitored by the AG's office. Josh was contacted and informed that threats were going to be made by you and Mike Hubbard. He was advised to allow the attorney general's office access to these conversations. He has done nothing biit cooperate with the attorney general, He would love to comment now but he can't because of Grand Jury Secrecy Laws. You know every bit of this to be true and hired a defense attorney the second the AG played the conversation for you. I am proud of Josh for having the fortitude to stand up to the corruption in Mon^omery. You should be ashamed of yourself. Like Comment' "Christopher Scott B/rd, Brandon Roberts, Angela Fleming Seats and IS others like this. 3osli Pipkin for State Representative April 5 Tomorrow night (Monday, April 7th) we will be having a meet and greet at the National Security Conference Center in Elba from ' 5:30-7:30 PM- Please feel free to stop by and say hello. We would love to have you! Like Conment Shameka Misshandlenvown aadamn, Danielle Humphreys Waflter, JenniferJohnsonand4otherslikethis. 11 The reason Josh came on here and commented on tlie appraisal amount was BECAUSE the dosing inok place at his office,. Josh didn't want to comment an an online article period but dichi't feei like this appraisal was fair. When you went to Montgomeri/, we believed you would change things, not become a part of tiie problem. This is exactly why good men don't want to get into politics." Uke Comment.25 JimnY Parker, GaH Bynum, Perry Vickers and 53 others Top Comments like this. Katie Frey Pipkin To add some context to this. Josh noticed that one of the numerous pieces of media coverage floating around about f*. Moore had an inaccuracy. I dont knov/ rrany poiitidatis \,vho v/ouh defend their opponent, but Josh felt this article was unfair and comn... See More 17 April 7 3t 6:49Bni - Edited John Barbara Vaughan This is a wonderful reply, Mr. Moore must be a bully. Katie is a sweet small kindergarten teacher. The public has only endured what was created by Mr, Moore, rrr 7-Apr3 7at5;iSam View a more ccsrrnents Josh Pipkin for State Representative April 4 Josh Pipkin for State Representative M Api"33 Ifound a passed out super hero in the kitchen. This is what happens when Mommy goes shopping and leaves the three children alone with me! -, Just 2 months until election day! VOTE JOSH PIPKIN ON JUi^JE 3rd! https;//wiaiw,facebookconvjoshpipkin2014 4/14

80 I ATTACHMENT H

81 Attorney General Luther Strange recused from mvestigation in Lee County By Kim Chandler on August 23, 2013 at 7:10 PM Alabama Attorney General Luther Strange. (The Huntsville Times/Robin Conn) MONTGOMERY, Alabama ~ Alabama Attorney General Luther Strange said today that he is recused from an investigation his office is conducting in Lee County. "I am recused from that matter," Strange said when asked if he was involved with a special grand jury being seated in Lee County. Strange declined to say why he has stepped aside. He also declined to comment on the investigation.

82 The grand jury is being handled by the special prosecutions division, an office that often handles public corruption cases. According to a court document, Judge Jacob A. Walker III on July 29 signed an empaneling order for a special grand jury in response to a motion filed by state prosecutors. The panel was to be selected from a pool of potential jurors gathered Monday. The chief of the special prosecutions division of the attorney general's office, Matt Hart, told the group, according to a court transcript, that his office generally handles public corruption cases and ethics cases involving public officials and the people who help them, wrote the Associated Press. Lee County Circuit Judge Chris Hughes told the group that the special grand jury will meet periodically over the next few months, according to the Associated Press.

83 The Newsletter of Alabama Palita P.O..BOX 3296 i MONTGOMERY, ALABAMA a61!>9 Voluine 2S Number 22 ^ Augusta?, 2013 Aiabama Attorney General Luthef Strange and his former campaign manager Jessica Medeiros Garrison are! igh-sng back against persistent rumors that they were engaged in a long-running extramarital affair and have :threatened legal action against those spreading the rumors. The aileged extramarita! affair is the most salacious tjf several rumors which have been circulating about Strange for months, Sc> far, rumors that Strange is the subject of-a grand jury investigation, is soon to be indicted and whose.resignation from office is imminent have proven to bepremators or untrue. Strange,who accepted consutting fees from Alabama State University, is rumored to be named in the investigation into the awarding of contracts at :A;;foT6nsic audit of ASU contracts is expected tofaecompleted nesct month and should feveal whether Qtfangs and -at least three of the top admlnistratorg at ASU are compiicit in any wrorrgdoing. There is no way to confirni at Vnh time that there is a grand jury investigation or to know whatthe forensic audit will uncover. Giarfison, meanwhile, has hired prominent Birmingham attorney BiH Baxley to represent her. On August 16,.Baxley, the former state'attorney general and it governor, wrotea letterto Roger Shuler who operates the ^political blog known as LegaVSchnauzer, demanding a retraction of postings about the extramarital affair and other defamatory comments. [ "these published statements regardirig our client, Jessica Mede^ros Garrison, are false and defamatory," Baxley wrote in the letter. "Our Giignt has not 'engaged, in. a.iong-running.extra maritai affair' wjth-luther Strange,,h..as.pot :ensiaged,in.sexuairelattqns'with Luther.St^.nge." Baxiey's letter cites several postings which if calls false and defamatory and then states; "QuLff!.le.ntisoota.^Whdre..has no addiction to strangers, has no. mental disorder, h.as.had no sexual.relationship with Luther Strange. has not allowed herseifto be used sexuaiiv to advance herself in Alabama or the Republican party, and has :.'ewgaaed in no financial arrangements for which arsvone should j^e indicted." in.additipn^4 ^stkjm5s, retraction, Baxley's letter threatens legal action against Shuier. "Your outrageous, desfmcable conduct will be addressed in another forum:.the Circuit Court of Jefferson County, Alabama," Baxley writes. To date. Shuier has not backed off his ailega^ons against Strange and Garrison and. has,.npt published a retraction,. Shuler's allegations about an extramarital affair between Strange and Garrison are beginning to seep into the mainstream media. Ti^e Montgomery IndepenchiitjepOTleti the allegations fast week. ine.fda Ahbama Politics was unable; to confirm one report last v;eek that Strange, when asked about the..aljegaiaons, refused to comrnent and threatened legal action against theteporter and the reporter's nev/s outlet if ^t'carried the story. SPECIAL GRAND iljry IMPANELED IN I..RE COlJN'fY < :. A.speciai grand jury was convened in Lee-County (vlonday at the request of the Alabama attorney general's office...while; it is not known who or what the grand jury is investiqatin.q. its very existence set off a new spate of rumors. ^ai^out Alabama House Speaker Mike Hubbard. R-Aubum, Published by Inside Alabama Politics snd edited by Bob QambacUrta, a writer and televisionnews commentator in " Montgornery. htm at ifcba^kmlp'^vmeteor call

84 porseveral inoiiths now, there have been'persistent rumore that Hubbard is under investigation by a grandjui'y, ^that he is about to be indicted on corruption charges and that he will resighfrom office when he is indicted. As is Mhs^asewitii Attorney General Strange, the ru mors have so far proven to-be either premature or untrue; >'revertheless the rumors persist.-. ' ' ' " ''.^Hubbard's business practices while serving as chairman of the Alabama Republican Party are said to be under ^investigation, butthe Lee County special grandjufymay have been impaneled to open a new avenue of "f investigation. The Associated Press and the Opelika-Aubiirn News have so far flushed out some limited details about the Lee County investigation.. >'.Here'syv'hat we can report with'some level of confidence: the order for a special grand jury was signed by Lee fcounty Circuit Court Judge Jacob Walker HI oh July 29; Matt Hart, chief ptthe special prosecutions division in jhe attorney general's office addressed the grand juiy when it convened Monday; Hart told the group hm office igenera!ly handles public corruption cases and ethics cases involving public officials and the people who help fcihem; Hart told the group that a regular grand jury typically meets for a week'or a month, but a special grand jury f-can go for six months to a year; and Lee County Circuit Judge Chris Hughes told the jurors they will meet l;-penodjcally over the next few months, quashing speculation that an indictment is imminent, ^. Neither the attorney qenersl's office nor the Lee County district,attorney's office would comment on the rsports. I Hart's modus operandi in pursuing public corruption cases has been to impanel a special grand jui'y in the = subject's home county to.handle the investigation. Hubbard lives in Lee County,,A local referendum on a school tax Issue may very well be at the center qfthe latest speculation about an investigation into SpeaKer Hubbard. Voters in the city of Auburn will go to the polls next, month to vote on a..referendum increasing property taxes by nine mils,.or 17 percent- the revenue to be used to finance a 30-year, S96 million bond issue to build 'a new $78 million high school and to make.more than $17 million in repairs to existing schools.... _ - Opponents of the tax increase have not been shy in tiieir criticism of Hubbard, nor have they been coy i?t speculating about-the nature of the grand jury.investigation. Hubbard, a renbv/ned anti-tax Republicar^. supported the referendum on a,tax increase and voted fqr'it injh..l-.e,9j5,l.ature earlisr this year Opponents of the tax increase contend that Hubtiard supported the tax increase and bond issue in an iliegal quid pro.quo with the Auburn City Schooi system- In return for iiis favorabie vote, the schoo! system took the broadcast nghts for Auburn High Schoof football away from the radio station which had carried the games for more than 50 years and awarded the rights to radio stations owned bvhubbard, John Rice, a Lee County realtor andformer Republican state senator, has formed a group to.oppose next month's referendum. He tells tnsfcjsalahams Politics that there are witnesses to conversations involving, Auburn City School Superintendent Karen Petano. in which she allegedly tells Others that she agreed to move the broad.'.-. C;3 of A::': High School footbaiho Hubbard's station in return for his support of the bond issue and tax increase. DeLanc denies there was anything improper about her moving the high schooi football games to Hubbard's radio station beginning Friday of this week. She says'hubbard's station wasthe only one io respond to an RFP and make a proposal for the broadcast rights- She adds the previous broadcaster was in breach of his contract with the schooi system. Dr. DeLano makes a compelling case that her decision.to move the games from one radio station to another was purely a business decision, in the best interests of the Auburn City Schools. BQilT^^e_and D^eLano sav thsv have.not been called and do not Knovj of anyone else who has been called to testifvbefore the special Qrand iuo/,' Numerous telephone calis to Hubbard, his chief of staff and press secretary last week Vi/ent unansvi/ered.. *. ' STRANGE REOJ.SESJEROM LBS COtMJTy ^OB^ The continuing saga of alleged corruptioh involving "Sti-ange and Hubbard has taken a number of twists and turns, the latest coming from Strange who told reporters lasttriday that he is recused from the investigation his office is conducting in Lee County, "i am recused from that matter," Strange said when asked about the investigation.