Two years after sentencing, Hubbard appeal still pending in state court

Brian Lyman | Montgomery Advertiser



Your guess about the status of Mike Hubbard's appeal is as good as Bill Baxley's.

“Everybody knows the same thing: Nothing,” said the former Alabama lieutenant governor, who represented the former Alabama House Speaker in his 2016 ethics trial.

Sunday was the second anniversary of a Lee County judge sentencing the Auburn Republican to four years in prison following his conviction on 12 felony ethics charges. Hubbard, who maintains his innocence, has remained free while the Alabama Court of Criminal Appeals considers his case.

That appeal has been before the five appellate judges since May of last year.

Courts almost never announce where they’re going before they get there, but logistics and the lack of precedents may be factors in the long deliberations. Scott Mitchell, the clerk of the Court of Criminal Appeals, said Monday the Hubbard appeal, with more than 16,000 pages of documents, is “the largest case our court has had in modern history.”

“The closest thing we have to this is a death penalty case,” he said. “It takes time.”

The Hubbard case is also one of the first major tests of the 2010 state ethics law, which the former speaker helped pass. John Carroll, a retired federal judge and professor at the Cumberland School of Law, said Monday that may be weighing on the judges.

“Quite frankly, there’s not a lot of appellate decisions dealing with the ethics act,” Carroll said in a phone interview. “There’s no body of law they can count on. They were going to have to develop the law that is the law of this particular case.”

A Lee County jury convicted Hubbard, once one of the most powerful figures in Alabama government, of using his office to secure business from lobbyists and those who employ them, known as principals. Hubbard was also found guilty of using staff members to do work for private consulting clients; voting for a budget that would have benefited a client and lobbying then-Gov. Robert Bentley on behalf of a client.

Hubbard’s appeal, filed in May 2017, extends arguments his defense team made during the trial. The former speaker’s attorneys argued prosecutors interpreted the ethics law far too broadly and questioned the definition of principal used in the decision.

Raw Video: Acting Attorney General W. Van Davis answers questions Friday night after former House Speaker Mike Hubbard was found guilty of 12 ethics violations. Raw Video: Acting Attorney General W. Van Davis answers questions Friday night after former House Speaker Mike Hubbard was found guilty of 12 ethics violations.

“The prosecution depended on either ignoring the specific limitations of the provisions that the Legislature adopted in the ethics laws or reading provisions broadly in a way that was not settled or understood at the time Hubbard acted,” the attorneys wrote.

The Alabama Attorney General’s Office, which prosecuted Hubbard, declined comment Monday. In a response filed in July 2017, prosecutors argued Hubbard was trying to “obscure the facts” and that if his conduct was not prohibited by the state’s ethics laws, “then the laws are a sham designed to let lawmakers disguise unethical conduct with a veneer of legality.”

How the court weighs those arguments could impact future ethics cases.

"It’s an extremely important case, and the court wants to get it right," Carroll said. "And it may be taking awhile for them to get it right."

There are few high-profile examples of the Court of Criminal Appeals dealing with ethics cases. The body affirmed former Gov. Guy Hunt’s 1993 conviction on ethics charges within a year of the jury’s verdict. But that decision fell under an earlier version of the ethics law.

Bill Baxley: Mike Hubbard 'victim of a witch hunt' The former Alabama House Speaker's defense attorney discusses Hubbard's sentence and their plan to appeal.

Legislators may revisit the ethics law in the 2019 legislative session, beginning next March. A committee is looking at possible changes to the law. Legislative leaders last spring shelved a draft of changes proposed by the Alabama attorney general’s office.

Baxley said Hubbard was “trying to make a living” and that he, like everyone else, was awaiting the court’s decision.

“It’s like being in the Army,” Baxley said. “All we can do is hurry up and wait.”