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ELECTRONICALLY FILED
11/28/2022 3:03 PM
03-CV-2022-901464.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, ALABAMA

STATE OF ALABAMA, ex rel. )

STEVE MARSHALL, Attorney )
General for the State of Alabama, )
)
Plaintiff, )
)
VS. ) CASE NO.:
)
ALABAMA ETHICS )
COMMISSION, a State Agency; )
JOHN M. PLUNK, )
JACQUELYN L. STUART, )
STANTON H. MCDONALD, and )
EDWARD F. CROWELL, in their )
official capacities as Commissioners )
of the Alabama Ethics Commission; )
and TOM ALBRITTON, in his )
official capacity as Executive )
Director of the Alabama Ethics )
Commission, )
)
Defendants. )

Complaint for Declaratory Judgment

INTRODUCTION

1. Plaintiff, the State of Alabama, by and through Attorney General Steve Marshall, files this

complaint for Declaratory Judgment pursuant to Ala. Code §§41-22-10 and 6-6-220 et seq.

This complaint relates to the Alabama Ethics Commission’s policy statement regarding its

disclosure obligations to respondents, as expressed in Advisory Opinion 2022-03 (“AO 2022-

03” or “the Advisory Opinion”). The State requests a declaration that adopting the Advisory

Opinion violates the Alabama Administrative Procedure Act (“AAPA”) because it effectively
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promulgated a new rule without complying with the procedures of the AAPA. AO 2022-03

provides an interpretation of the Ethics Commission’s legal obligations under the federal Brady

rule and the Alabama Ethics Act that is generally applicable to all respondents under

investigation by the Ethics Commission. Since the Ethics Commission failed to follow the

AAPA’s procedures in adopting this rule, the State further requests a declaration that AO 2022-

03 is null and void.

STATEMENT OF THE PARTIES

2. Petitioner, the State of Alabama, is represented by and through Attorney General Steve

Marshall. The Attorney General receives cases, presumed to be criminal, by referral from the

Ethics Commission for prosecution or administrative resolution under the Alabama Ethics Act.

Advisory Opinion 2022-03 was issued by the Ethics Commission in direct response to concerns

raised by the Attorney General in the performance of his duty under Ala. Code §36-25-27(b)

to approve or disapprove a proposed administrative resolution of an alleged ethics violation.

See AO 2022-03, at 1.

3. Defendant, the Alabama Ethics Commission, is a state agency1 that aids in enforcing the

Alabama Ethics Act. The Ethics Commission’s duties are governed by Ala. Code §§36-25-4

to -4.3.

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The Attorney General has the authority under Ala. Code §36-15-21 to control the Ethics
Commission’s defense of this litigation; however, he may choose to allow both sides to be
represented by Assistant or Deputy Attorneys General. See Ex parte Weaver, 570 So. 2d 675, 681-
83 (Ala. 1990), overruled on other grounds by Riley v. Cornerstone Cmty. Outreach, Inc., 57 So.
3d 704 (Ala. 2010). The Ethics Commission employs an Assistant Attorney General who is
authorized to defend the Ethics Commission in this suit.
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4. Defendant Commissioners are the individual commissioners who, by majority vote, adopted

Advisory Opinion 2022-03. Defendant Commissioners are named as defendants in this lawsuit

in their official capacity as commissioners of the Alabama Ethics Commission. See Ala. Code

§36-25-3(a).

5. Defendant Albritton is named as a defendant in this lawsuit in his official capacity as the

Executive Director of the Alabama Ethics Commission. As Executive Director, Defendant

Albritton’s duties include ensuring Ethics Commission staff comply with Ethics Commission

procedures in investigating potential violations of ethics laws and presenting evidence for the

Ethics Commission to make a finding of probable cause that a violation has occurred. See Ala.

Code §36-25-3(f).

JURISDICTION AND VENUE

6. Jurisdiction is proper pursuant to Ala. Code §41-22-10, which provides that a party may

request a determination of the validity of an agency rule through an action for a declaratory

judgment in the Montgomery County Circuit Court. Jurisdiction is also proper pursuant to the

Court’s power to issue declaratory judgments as to the legal rights of parties whose interests

are adversely affected by public officials and that involve the construction of statutes affecting

public rights. See Ala. Code §§6-6-222, -223.

7. Venue is proper in Montgomery County, Alabama under the AAPA and because all

Defendants are State officials whose county of official residence is Montgomery County. See

Ala. Code §41-22-10; Ex parte Neely, 653 So. 2d 945 (Ala. 1995).

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FACTS

8. The Ethics Commission is authorized by statute to receive complaints and conduct

investigations into violations of the Alabama Ethics Act and Fair Campaign Practices Act. The

Ethics Commission is also authorized to issue advisory opinions that offer protection to the

person “at whose request the opinion was issued,” as well as to “prescribe, publish, and enforce

rules” in accordance with the Alabama Administrative Procedures Act to carry out its duties

under the Ethics Act. Ala. Code §§36-25-4(a)(9), (11).

9. A respondent to an ethics complaint is given notice of the charges filed against him and an

opportunity to appear before the Ethics Commission at a hearing where “the laws of due

process shall apply.” Ala. Code §36-25-4(d).

10. The Ethics Commission has promulgated administrative regulations further governing the

procedures for Ethics Commission hearings, including the privileges afforded respondents. See

ALA. ADMIN CODE r. 340-X-1-.01. For example, respondents to an ethics complaint are

permitted to testify in their own defense but are not allowed to confront or cross-examine

witnesses testifying against them. Ala. Admin Code r. 340-X-1-.01(5)(a), (c). Respondents

may call witnesses in their defense but may not be present while the witnesses testify and are

questioned by the Ethics Commission. Id. at (d).

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11. If, after a hearing, the Ethics Commission “finds probable cause” that a person committed a

crime by violating the Ethics Act, it refers the case to the district attorney of the appropriate

judicial circuit or the Attorney General for appropriate legal action. Ala. Code §36-25-4(i).

The Ethics Commission’s findings of probable cause are reported in the minutes of Ethics

Commission meetings, include the name of the respondent, and are publicly viewable on the

Ethics Commission’s website.

12. As an alternative to referral for potential criminal prosecution after a finding of probable cause,

a respondent to an ethics complaint may petition the Ethics Commission or otherwise agree to

an administrative resolution of the complaint for minor violations of the ethics laws. Ala. Code

§36-25-27(b). An administrative resolution results only in a monetary penalty and precludes

any criminal prosecution for violating the ethics laws. Id. The Ethics Commission must

unanimously vote to adopt an administrative resolution, and the administrative resolution must

be approved by the appropriate district attorney or the Attorney General. Id.

13. On November 18, 2021, the Attorney General rejected proposed administrative resolutions in

two cases referred to him by the Ethics Commission, pursuant to his authority under Ala. Code

§36-25-27(b). State’s Exhibit A. (redacted in accordance with Ala. Code §36-25-4(c)). In an

accompanying 101-page memorandum to the Ethics Commission, the Attorney General raised

concerns that the Ethics Commission had violated the Brady rule2 in its handling of the cases

by not turning over material exculpatory or impeachment evidence to the respondents.

2
The Brady rule, named after Brady v. Maryland, 373 U.S. 83 (1963) requires, as a matter of due
process, disclosure of material evidence favorable to the accused that is in the government’s
possession.
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14. On July 5, 2022, the Attorney General’s Office was notified via email from the Executive

Director of the Ethics Commission that the Ethics Commission would be meeting on July 13,

2022, to consider approving an advisory opinion related to its obligations under both the federal

Brady rule and the Alabama Ethics Act regarding the disclosure of exculpatory or

impeachment evidence to respondents under investigation by the Ethics Commission.

15. In an email of July 5, 2022, from Executive Director Albritton, three draft advisory opinions

were attached for the Attorney General’s review and feedback. One draft opined that the grand

jury restrictions of the Ethics Act do not apply under Brady. One draft opined that the grand

jury restrictions of the Ethics Act trump obligations under Brady. The last draft opined that the

grand jury restrictions of the Ethics Act permit, but do not require, disclosure of exculpatory

evidence under Brady.

16. The draft advisory opinions regarding Brady obligations were not requested by any member

of the public but were self-generated by the Ethics Commission. See AO 2022-03 at 1.

17. The Attorney General’s Office responded to the July 5th email, reiterating previously-raised

concerns about the Ethics Commission’s understanding of Brady and the Ethics Act and urging

the Ethics Commission to simply return to its longstanding practice of providing respondents

with exculpatory evidence.

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18. On July 13, 2022, the Ethics Commission met to discuss the three draft opinions. A

representative of the Attorney General’s Office addressed the Ethics Commission and outlined

why the Ethics Commission is legally obligated to produce exculpatory evidence to all

respondents under investigation by the Ethics Commission.

19. The Ethics Commission voted to adopt what is now Advisory Opinion 2022-03, which

concludes that the Ethics Commission is neither required nor permitted to disclose Brady

material to respondents under investigation by the Ethics Commission.

20. On July 28, 2022, the Attorney General’s Office made a formal request to the Ethics

Commission for reconsideration of Advisory Opinion 2022-03, which was denied on August

9, 2022.

21. The Ethics Commission’s adoption of AO 2022-03 impairs the ability of the Attorney General

to enforce the state’s ethics laws.

22. The purpose of the Ethics Commission’s power to conduct investigations, to hold hearings,

and to make formal findings of probable cause as to whether the state’s ethics laws have been

violated is to indicate reliably to prosecuting authorities that it is more likely than not that a

crime has occurred.

23. As a result of AO 2022-03, the Attorney General cannot rely on the Ethics Commission’s

findings of probable cause that a crime was committed or the validity of the proceedings before

the Ethics Commission that led to the finding of probable cause.

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24. As a result of AO 2022-03, the Attorney General cannot rely on a respondent’s request for or

agreement to an administrative resolution in assessing whether to approve it. A respondent’s

agreement to an administrative resolution is now less likely to be knowing and voluntary

because the respondent has made the decision to admit to an ethics violation without being

provided exculpatory Brady material.

25. AO 2022-03 renders any future referrals and proposed administrative resolutions from the

Ethics Commission useless to the Attorney General, as they would be tainted with due process

concerns.

26. Rather than cure the deficiencies in its procedures, the Ethics Commission has withheld

referrals for prosecution and proposed administrative resolutions from the Attorney General

since the adoption of AO 2022-03. While the Ethics Commission is permitted to send its

referrals and proposed resolutions to a district attorney, this is no workable bypass. The

Attorney General still maintains the ultimate authority over these matters. See Ala. Code §36-

15-14.

27. In short, AO 2022-03 frustrates the entire ethics enforcement regime. The collapse of credible

collaboration between the Ethics Commission, the Attorney General, and the District Attorneys

results in a pocketbook injury to the Office of the Attorney General, as the Attorney General

will now be forced to duplicate the Ethics Commission’s efforts and expend additional

resources to fully ensure the integrity of referrals and proposed administrative resolutions.

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28. The Attorney General has been harmed, not just by the implementation of AO 2022-03, but by

the procedural failure of the Ethics Commission to follow the AAPA. The Attorney General

has been injured by the loss of the notice-and-comment opportunity provided by section 5(a)

of the AAPA. Ala. Code §41-22-5(a). Though the Office of the Attorney General was afforded

the opportunity to address the Ethics Commission, the Office was precluded from submitting

public comments that, though of little interest to the Ethics Commission, may well have been

compelling to the Legislative Council—the entity responsible for approving or disapproving

proposed agency regulations under the AAPA. See Ala. Code §41-22-22; see also Ex parte

LeFleur, 329 So. 3d 613 at 629-30 (2020) (“A litigant who alleges a deprivation of a procedural

protection to which he is entitled never has to prove that if he had received the procedure the

substantive result would have been altered. All that is necessary is to show that the procedural

step was connected to the substantive result.”)

COUNT ONE:

DECLARATORY JUDGMENT

29. The State of Alabama realleges and incorporates by reference all of the proceeding allegations

contained in Paragraphs 1-28.

30. As an administrative agency of the State of Alabama, the Alabama Ethics Commission is

subject to the AAPA, codified at Ala. Code §§41-22-1 through 41-22-27. See also Ala. Code

§36-25-4(a)(11). The purposes of the AAPA include increasing the availability of judicial

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review of agency actions and increasing administrative agencies’ public accountability. See

Ala. Code §41-22-25.

31. Since its inception, the Ethics Commission has proposed twenty-eight regulations, only six of

which are currently found in the Alabama Administrative Code. See ALA. ADMIN. CODE r.340-

X-1-.01 to -.06.

32. Because of the Attorney General’s duty to enforce the Ethics Act, including the prosecution of

criminal cases referred by the Ethics Commission and the approval of administrative

resolutions proposed by the Ethics Commission, the Attorney General has a significant interest

in the policies and rules under consideration by the Commission. In the past, the Attorney

General has exercised his right under the AAPA, Ala. Code §41-22-5, to submit public

comments on rules proposed by the Ethics Commission.

33. Of the rules that the Ethics Commission has formally adopted, many of the provisions relate

to interactions between the Ethics Commission and respondents. For example, rule 340-X-1-

.01(2) states “The Commission may not require the respondent to be a witness against himself

or herself.” ALA. ADMIN. CODE r.340-X-1-.01(2).

34. More specifically, the Ethics Commission has adopted provisions regarding what a respondent

is entitled to obtain from the Ethics Commission in discovery. Rule 340-X-1-.01(4) states that

“The respondent shall not be entitled to the commission’s investigatory report, memoranda,

witness lists, or other internal documents made by any employee or agent of the Commission

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in connection with the investigation of the case or the substance of any statements made by

prospective witnesses.” ALA. ADMIN. CODE r.340-X-1-.01(4).

35. Because policies like these are generally applicable to all respondents under investigation by

the Ethics Commission, they are subject to the rulemaking requirements of the AAPA. Section

41-22-3(4) of the AAPA explains that the Act covers “each agency rule, regulation, standard

or statement of general applicability that implements, interprets, or prescribes law or policy, or

that describes the organization, procedure, or practice requirements of any agency.” Ala. Code

§41-22-3(4).

36. “General applicability” distinguishes an agency decision over a specific controversy from

those policies that are “applicable to all persons or a relatively large segment of the population

outside the contest of any specific controversy.” See Official Commentary Note (9) in re: Ala.

Code §41-22-3.

37. Advisory Opinion 2022-03 is a rule, as defined by the AAPA. The Advisory Opinion is a

statement of general applicability that 1) interprets a law (the Ethics Act); 2) prescribes policy

(as to the production of exculpatory evidence in discovery); and 3) describes the practice

requirements of the agency (pertaining to information that will not be disclosed by the Ethics

Commission to respondents under investigation). See Ala. Code §41-22-3(9).

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38. Alabama courts have interpreted the term “rule” as having a broad definition in regard to the

procedural requirements of the AAPA. Ex parte Traylor Nursing Home, Inc., 543 So.2d 1179,

1183 (Ala. 1988).

39. Advisory Opinion 2022-03 was also an improper use of the Ethics Commission’s advisory

opinion authority. The opinion was not requested by any party, nor was it addressed to any

party, as contemplated by the statute. See Ala. Code §36-25-4(9) (“[Advisory opinions] shall

protect the person at whose request the opinion was issued.”).

40. The Ethics Commission’s own website notes that an advisory opinion “answers a question

based on the information and facts presented by an individual or group.” ALABAMA ETHICS

COMMISSION, http://www.ethics.alabama.gov/commission-opinions.aspx (emphasis added).

41. Advisory Opinion 2022-03 was addressed to the Executive Director of the Ethics Commission,

not to any requesting party, further underscoring its distinctive characteristic as a “statement

of general applicability,” or a rule, under the AAPA. AO 2022-03 at 1.3

3
The Ethics Commission has at least constructive notice that it lacks the authority to issue advisory
opinions without a formal request. In 2019, the Ethics Commission proposed the following
addition to the Alabama Administrative Code, at 340-X-1-.02(3): “The Commission may self-
generate Advisory Opinions.” State’s Exhibit B. This proposed rule, along with the others
proposed by the Ethics Commission in 2019, was later withdrawn by the Ethics Commission prior
to the required review of the Alabama Legislature’s Joint Committee on Administrative Regulation
Review (or “the Legislative Council”), by the authority granted to the Ethics Committee in Ala.
Code §41-22-22. In other words, the Legislative Council has never validated the Ethics
Commission’s authority to issue advisory opinions in the absence of a request for an opinion.

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42. Though statements concerning “only the internal management of an agency” are exempted

from the AAPA’s definition of rule, that is only to the degree that the statements do not affect

“private rights or procedures available to the public.” Ala. Code §41-22-3(9)(a). Advisory

Opinion 2022-03 affects both.

43. Section 41-22-4(b) of the AAPA further states that “no agency rule, order, or decision shall be

valid or effective against any person or party nor may it be invoked by the agency for any

purpose until it has been made available for public inspection and indexed as required by this

section and the agency has given all notices required by Section 41-22-5.” Ala. Code §41-22-

4(b) (emphasis added).

44. The significant negative effect of Advisory 2022-03 is immediate against all respondents who

are or will be investigated by the Ethics Commission. According to the opinion, “The

Commission is not required or permitted to disclose exculpatory information or Brady material

to respondents,” absent narrow exceptions. AO 2022-03 at 4. Thus, the respondent can neither

be confident that he fully understands the case against him, nor that the exculpatory evidence

has been considered by the Ethics Commission before it votes on whether to refer the matter

for prosecution or administrative resolution. In either case, the respondent’s legal defense is

impeded.

45. In matters where an administrative resolution is proposed by the Ethics Commission, the

respondent’s legal defense is uniquely impaired. The respondent is presented with the decision

to resolve the alleged violations against him by agreeing to an administrative resolution and

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fine without knowing whether exculpatory evidence exists. An agreement by the respondent

to an administrative resolution implies an admission of guilt, which is why it must be approved

by the Attorney General—if approved, then the “crime” cannot be prosecuted. Ala. Code §36-

25-27(b).

46. The Ethics Commission votes to refer matters for prosecution or administrative resolution in

open public meetings, during which the respondent is identified by name. Whether or not the

case is ultimately prosecuted or administratively resolved, the respondent faces reputational

risks. As a result, the conclusion of Advisory Opinion 2022-03, that “the prosecutor will be

responsible for disclosing any exculpatory or Brady material at the adjudicatory phase or trial

of the accused,” is of little consolation to the respondent. AO 2022-03 at 4 (emphasis added).

47. Advisory Opinion 2022-03 has a significant negative effect on the work of the Attorney

General’s Office, as the Ethics Commission’s self-imposed prohibition on providing Brady

material to respondents directly interferes with and impairs his duties under the Alabama Ethics

Act.4 Referrals from the Ethics Commission are useless to the Attorney General when

discovery is conducted by the Ethics Commission in the legally deficient manner prescribed

by the advisory opinion.

4
The phrase “interferes with or impairs, or threatens to interfere with or impair [the plaintiff's]
legal rights or privileges” has been liberally construed to confer standing on a broad class of
plaintiffs who seek to challenge administrative rules. Medical Ass'n of Alabama v. Shoemake, 656
So.2d 863, 866 (Ala.Civ.App.1995).
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48. The inability to rely upon proposed administrative resolutions or referrals for prosecution from

the Ethics Commission undermines the cooperative partnership, contemplated by the Ethics

Act, between the Ethics Commission and the Attorney General. See Ala. Code §36-25-4(j). It

also requires the Attorney General to spend substantially more resources re-investigating and

reviewing resolutions or referrals from the Ethics Commission.

49. Advisory Opinion 2022-03 was not properly promulgated as an agency rule, nor did its

adoption comply with the prescribed notice-and-comment procedure for the adoption of an

agency rule under the AAPA. See Ala. Code §41-22-5. As a result, the Attorney General’s

Office was deprived of the opportunity to submit public comments in opposition to the

proposed Advisory Opinion, as was the general public, and was further deprived of the

oversight provided by the Legislative Council under Ala. Code §41-22-22.

50. The State of Alabama respectfully requests that this Court determine that Advisory Opinion

2022-03 is a rule, as defined in Ala. Code §41-22-3(9), issued in violation of the AAPA, and

that AO 2022-03 is consequently null and void.

PRAYER FOR RELIEF

The State of Alabama respectfully requests this Honorable Court to declare that:

51. Advisory Opinion 2022-03 is a rule, as defined by the Alabama Administrative Procedure Act;

52. Advisory Opinion 2022-03 was adopted in violation of the Alabama Administrative Procedure
Act;

53. Advisory Opinion 2022-03 is null and void; and

54. Any and all other such relief as this Court deems appropriate.

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Respectfully submitted this 28th day of November, 2022.

Steve Marshall
Attorney General

/s/ Katherine Robertson

Katherine Robertson
Chief Counsel, Deputy Attorney General

Brad A. Chynoweth
Assistant Chief Deputy, Civil Division

Tara S. Hetzel
Deputy Attorney General

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OFFICE OF THE ATTORNEY GENERAL

501 Washington Avenue
Montgomery, Alabama 36130-0152
Telephone: (334) 242-7300
Fax: (334) 353-8400
Katherine.Robertson@AlabamaAG.gov
Brad.Chynoweth@AlabamaAG.gov
Tara.Hetzel@AlabamaAG.gov

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