Ex parte Hunt

• Decision Date: 21 April 1994
• Parties: Ex parte Harold Guy HUNT. (Re Harold Guy Hunt v. State). 1930501.
• Court: Alabama Supreme Court

Page 1060

642 So.2d 1060

Ex parte Harold Guy HUNT (Re Harold Guy Hunt v. State).

1930501.

Supreme Court of Alabama.

April 21, 1994.

Rehearing Denied June 10, 1994.

George L. Beck, Jr. and W. Terry Travis of George L. Beck, Jr., P.C., Montgomery, and William N. Clark of Redden, Mills & Clark, Birmingham, for petitioner.

James H. Evans, Atty. Gen., Rosa H. Davis, Stephen P. Feaga, Deputy Attys. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.

James E. Harris, Birmingham, for amici curiae several members of the Ala. Legislature, in support of the petitioner's position on certain issues.

PER CURIAM.

Harold Guy Hunt, Governor of the State of Alabama, was indicted by a grand jury and convicted by a petit jury of violating the Alabama Code of Ethics for Public Officials, specifically § 36-25-5, Ala.Code 1975, which provides:

"No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."

His sentence of five years' imprisonment was suspended upon the condition that he perform 1,000 hours of community service. Hunt appealed to the Court of Criminal Appeals, which affirmed his conviction and sentence. We granted certiorari review. The procedural history of this case is set out in the opinion of the Court of Criminal Appeals. Hunt v. State, 642 So.2d 999 (Ala.Cr.App.1993).

Hunt does not deny that he used the money that is the basis of this prosecution for his direct personal gain. In fact, the evidence that he did so is not contradicted. The Alabama Ethics Commission found probable cause to believe that Hunt had violated the Ethics Act and, in accordance with the Act, sent its findings to the attorney general. Hunt petitioned the United States District Court for the Middle District of Alabama to enjoin any prosecution against him on the ground that the Ethics Act did not apply to the Governor. The District Court refused to do so. Hunt v. Anderson, 794 F.Supp. 1557 (M.D.Ala.1992). Hunt appealed that decision to the United States Court of Appeals for the Eleventh Circuit. That court also rejected Hunt's argument that the state ethics law does not apply to the state's highest elected official. Hunt v. Anderson, 976 F.2d 744 (11th Cir.1992).

Hunt was indicted by the grand jury on December 28, 1992.

The record reveals the following pertinent facts: Hunt was elected Governor of the State of Alabama on November 4, 1986. After the election, an inaugural committee was formed to raise money to finance Hunt's inauguration. The money was to be raised from the sale of tickets to the various inaugural events and from the sale of advertising in a souvenir program for the inauguration.

On November 26, 1986, an account was opened at the Union Bank and Trust Company in Montgomery, styled "1987 Alabama Inaugural Committee." In December 1986, the name on the 1987 Alabama Inaugural Committee account was changed to "Hunt Transition and Inaugural Fund, Inc." ("HT & IF, Inc."). James W. Wilson, Jr., chairman of the inaugural committee, sent a letter, dated December 19, 1986, to potential finance committee members detailing the plan to raise money through the sale of inaugural event tickets and the sale of advertising in a souvenir program. Wilson's letter contained the following statement with regard to the fundraising effort:

"All of the expenses of the inaugural preparations, the costs of the transition to the new administration, and the costs of the inaugural events themselves must be paid for by the Hunt Transition and Inaugural Fund, Inc. The proceeds from the sale of inaugural tickets, advertising, and other contributions go into that account and will be used to pay for all these activities. No taxpayer funds are used."

Enclosed with Wilson's letter was a form response letter addressed to Wilson; on that form letter potential finance committee members could indicate in what manner they were willing to participate in the inaugural events and the fundraising effort. This letter contained instructions for writing checks for tickets or advertising. The letter instructed that corporate checks for advertising should be made out to HT & IF, Inc., and that personal checks for tickets should be made out to 1987 Alabama Inaugural Committee, the former name on the HT & IF, Inc., account.

On December 31, 1986, HT & IF, Inc., was incorporated as an Alabama nonprofit corporation. The articles of incorporation describe its purposes:

"to provide a non-profit organization to receive and administer funds provided by contributions, subscriptions and other sources to:

"(a) effect an orderly and efficient transfer of the Office of Governor of Alabama to Honorable Guy Hunt, Governor-elect;

"(b) defray a part of the costs of the inauguration of Governor Hunt;

"(c) renovate and improve the building provided by the State as a residence for the Governor and his family and known as the Governor's Mansion.

"(d) assist the Governor and his staff to promote the general interest and welfare of the State of Alabama and its people in various other ways including, without being so limited, through attracting additional business and industry to the state, advertising the state and its resources and supporting other organizations with similar or like purposes.

"(e) promote or carry out other scientific, educational, civic, patriotic, political, historical, literary, religious or charitable purposes as may be permitted by law and are not inconsistent with the provisions of these Articles of Incorporation,

"all to the extent such purposes are not paid for by public funds; provided, however, that no part of the funds, principal, income, property, assets or resources of the corporation shall be used, committed, expended or paid, directly or indirectly, to aid, promote, defeat or prevent the nomination or election of any person or any question or proposition submitted to the vote of the people or the interest of any political party."

HT & IF, Inc., was organized as a charitable organization, not as a political organization. The articles of incorporation specifically forbid the use of any funds raised by HT & IF, Inc., for political purposes. In spite of the express provision to the contrary, Judith Pittman, the executive director of the inaugural committee, an employee of HT & IF, Inc., testified that one of the inaugural committee's goals from the beginning was to raise money for political purposes, despite legal advice to the effect that funds raised for the transition and inaugural activities should not later be used for political purposes. The inaugural committee included, on some of its correspondence to finance committee members and ticket purchasers, a notation indicating that in the event net revenues were generated from the ticket sales to individuals or political action committees, these revenues might be used for political purposes.

Pittman testified that the inaugural committee planned to segregate the funds raised from ticket sales and those raised from advertising sales. The inaugural committee instructed the purchasers of advertising to make checks payable to HT & IF, Inc., and it earmarked these funds for transition and inaugural purposes. These funds were to be deposited in the HT & IF, Inc., account at Union Bank and Trust. Individuals and political action committees were instructed to make checks for tickets payable to 1987 Alabama Inaugural Committee. These funds were earmarked for campaign purposes and were to be deposited in a Friends of Guy Hunt Account at Union Bank and Trust.

An examination of the checks deposited into the HT & IF, Inc., account and the Friends account at Union Bank and Trust revealed that both accounts received proceeds from checks made out to 1987 Alabama Inaugural Committee and checks made out to HT & IF, Inc., and that both received proceeds from checks bearing notations indicating that they were issued to pay for tickets and from checks bearing notations indicating that they were issued to pay for advertising. Between January 8, 1987, and February 12, 1987, $394,573 raised from inaugural event tickets and advertising sales was diverted from HT & IF, Inc., and deposited into the Friends account at Union Bank and Trust. On February 12, 1987, three $100,000 checks were written on that account.

Check number 101 from the Friends account, for $100,000, was made out to Friends of Guy Hunt and was deposited in a savings account bearing that name in Cullman Savings and Loan Association (that account shall be referred to as the "Cullman Friends" account). Hunt was an authorized signatory on this account. The bulk of the funds in this account were withdrawn in the form of cashier's checks, payable to Guy Hunt, and were deposited in his personal account. On November 12, 1988, a single or consolidated signature card was created for this Cullman Friends account and for another account at Cullman Savings and Loan called "Guy Hunt or Mrs. Guy Hunt." It was signed only by Hunt, who was, therefore, at that time, the sole signatory on both accounts. On December 29, 1989, the last withdrawal from this Cullman Friends account was made in the form of a cashier's check payable to Guy Hunt or Mrs. Guy Hunt in the amount of $11,700. Hunt deposited this check in his personal account. These funds were used to cover a $16,297 check drawn on the personal account to make a payment on a note secured by a mortgage on Hunt's farm.

Check number 102 from the Friends account, for $100,000, was deposited in a new Friends account at AmSouth Bank. Hunt was an authorized signatory on this account. The $100,000 was left in this account until June 18, 1987, where it earned approximately $2,000 in interest. On June 18, 1987, the $100,000 was transferred to HT & IF, Inc. The $2,000 in interest was transferred, by various...