DOCUMENT 773

ELECTRONICALLY FILED
8/5/2016 4:24 PM
43-CC-2014-000565.00
CIRCUIT COURT OF
LEE COUNTY, ALABAMA
MARY B. ROBERSON, CLERK

IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA,

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)
)
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v.
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)
MICHAEL GREGORY HUBBARD, )
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Defendant.
)

CASE NO.

CC-2014-000565

STATES SUPPLEMENTAL BRIEF IN SUPPORT OF

SENTENCING RECOMMENDATION
This Court requested supplemental briefing on interpreting victim in the
Restitution to Victims of Crime Act (the Act), Ala. Code 15-18-66, to include
the State. This interpretation of the Act is consistent with the statutory text and
surrounding statutes, the Acts purpose, other states interpretations of similar
statutes, and judicial economy. And it is just in this case. Interpreting the Act to
allow Hubbard and defendants like him to keep their ill-gotten gains would create a
perverse incentive for white collar criminals to engage in efficient breach-style, costbenefit analysis to determine whether the time is worth the money. This Court
should conclude that the State is the victim of Hubbards crimes under the Act and
order Hubbard to pay restitution of $1,125,000.00.

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ARGUMENT
Restitution orders are not overturned except in cases of clear and flagrant
abuse. Ex parte Theodorou, 53 So. 3d 151, 156 (Ala. 2010) (quoting Richardson v.
State, 603 So. 2d 1132, 1134 (Ala. Crim. App. 1992)). And ordering restitution in
this case is reasonable. The State has presented the factual basis necessary to
establish the exact amount of restitution. At trial, the State introduced evidence
showing the salary Hubbard received while receiving consulting contracts and
investments from lobbyists and principals, as well as the total ill-gotten gain from
those things of value. Consistent with the evidence, the plain meaning of Ala. Code
15-18-66, and persuasive authority from other states, this Court should conclude
that the State is the victim under Ala. Code 15-18-66 and grant the State restitution
in the amount of $1,125,000.00.
I.

Interpreting victim to include the State is consistent with the

statutory text, the common meaning of person, and other states
practice.
The Act defines victim as [a]ny person whom the court determines has

suffered a direct or indirect pecuniary damage as a result of the defendants

criminal activities. Ala. Code 15-18-66 (emphasis added). Consistent with the
text of the statute, other provisions of Alabama law, and the Acts purpose, the
State can be a victim under the Act. And interpreting person to include the State

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is consistent with other states interpretation of their statutes that identify a victim
as a person without specifically including the State.
A. Person is a legal term of art not limited to natural persons.
Under basic legal principles, the common meaning of the word person
includes the State of Alabama. For example, Blacks Law Dictionary defines
person as [a]n entity (such as a corporation) that is recognized by law as having
most of the rights and duties of a human being. Person, Blacks Law Dictionary
(10th ed. 2014). The State is well established as an entity with rights and duties,
expressly enumerated in the Alabama State Constitution. Blacks Law Dictionary
has thirty-five particularized types of person, such as natural person (defined as a
human being), and public person (defined as a sovereign government, or a body
or person delegated authority under it). Id. If the legislature had intended to limit
the definition of person to natural persons, it could have done so expressly.
And the legislature demonstrated this ability by expressly excluding
individuals who participated in the defendants criminal activities from the
definition of victim under the Act. See Ala. Code 15-18-66(4). Where a single
exclusion exists, this Court should not read additional exclusions into the statute.
Instead, this Court should give person its common legal meaning, which can
include the State.

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B. Reading the statute in pari materia with Alabama Code Title 15 on

Criminal Procedure shows that the stated definition of person
includes the State.
The Act states the provisions of this section shall be read and deemed in
pari materia with other provisions of law. Ala. Code 15-18-78(b). Under the
in pari materia canon of statutory construction, statutes addressing the same
subject matter generally should be read as if they were one law. Wachovia Bank
v. Schmidt, 543 U.S. 303, 315-16 (2006). In the twenty-three definition sections in
Title 15, the term victim is always defined as a person or persons. See, e.g., Ala.
Code 15-14-52, 15-18-142, 15-23-3, 15-23-41, and 15-23-60. And the term
person is defined twice in Title 15: in the Alabama Crime Victims Court
Attendance Act and in the Alabama Restitution Withholding Act.
Under the Alabama Crime Victims Court Attendance Act, person
includes a government or a governmental instrumentality, including, but not
limited to, the State of Alabama or any political subdivision thereof. Ala. Code
15-14-52(1).

Under the Alabama Restitution Withholding Act, person

includes [a] government or governmental instrumentality, including, but not

limited to, the State of Alabama or any political subdivision thereof. Id. 15-18142(1)(c). These provisions, read in pari materia with the Act, show that the State
is a person under the Act and other provisions of Title 15.

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C. Interpreting victim to include the State, making it eligible for

restitution, is reasonable, consistent with the Acts purpose, and just.
As a practical matter, the States position on restitution is reasonable,
consistent with the Acts purposes, and just. It is axiomatic that a guide to the
meaning of a statute is found in the evil which it is designed to remedy. Holy
Trinity Church v. United States, 143 U.S. 457, 463 (1892). Restitution serves not
only remedial but also rehabilitative purposes. See State v. Redmon, 885 So. 2d
850, 853 (Ala. Crim. App. 2004) ([R]estitution is . . . a measure that has both
salutary remedial and rehabilitative characteristics. Restitution is a part of the
criminal sentence rather than merely a debt between the defendant and the victim.).
Generally speaking, restitution also acts as a deterrent to future criminality.
Roberts v. State, 863 So. 2d 1149, 1155 (Ala. Ct. Crim. App. 2002) (quoting
People v. Bernal, 101 Cal. App. 4th 155, 16063 (2002)). And restitution is an
equitable remedy granted to the extent that justice between the parties requires.
United States v. Barnette, 10 F.3d 1553, 1556 (11th Cir. 1994).
In the context of a white-collar crime case, justice requires public officials to
be forbidden from keeping ill-gotten gains obtained as a result of breaching the
publics trust. As the Eleventh Circuit reasoned, if a white-collar criminal could
steal millions of dollars, place the money in an off-shore bank account, serve his
probationary sentence, and then be free to start a new life with his newly-acquired
fortune, this court sees little incentive for that person to think twice before
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concocting such a scheme. United States v. Livesay, 587 F.3d 1274, 1279 (11th
Cir. 2009). Unless this Court orders restitution, Hubbard and his businesses will
continue reaping the returns from his sale of his office as Speaker even after he
serves his prison sentence.
And, without paying restitution of his ill-gotten gains, Hubbard will not be
rehabilitated from his criminal conduct.

Under the Act, rehabilitation is one

consideration courts must weigh in determining the amount of restitution to award.

Ala. Code 15-18-68(a)(3) (requiring courts to consider the anticipated
rehabilitative effect on the defendant regarding the manner of restitution or the
method of payment). Without restitution, Hubbard cannot experience the
rehabilitative effect of making the State whole for its loss of his honest services.
Pennsylvanias restitution statute, like Alabamas, does not explicitly name
the State as a potential victim. But Pennsylvania courts have interpreted victim
to include the State, considering the purposes of its restitution statute.
Pennsylvanias former House Speaker, John Perzel, was convicted based on a
course of conduct like Hubbards. The Pennsylvania court concluded that the State
was a direct victim of Perzels use of government staff, equipment, and facilities
for personal gain. Com. v. Perzel, 116 A.3d 670, 673 (Pa. Super. Ct. 2015).
Reasoning that Pennsylvanias restitution laws have dual purposes of rehabilitation
and deterrence, the Court concluded that failing to award restitution to the State
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would therefore be contrary to the statutes purpose and the General Assemblys
intentnot to mention common sense. Id. at 673. Put another way, the restitution
statute both provided compensation to victims and rehabilitated defendants. Id.
Here, awarding restitution to the State would repay the State for its loss of
Hubbards honest services and would have a rehabilitative effect.
D. Interpreting victim to include the State would be consistent with
other states interpretation of their restitution statutes which define
victim as a person or persons without defining person.
The States position on restitution is also consistent with similar
interpretations in other states. For instance, a court in Indiana concluded that the
State qualifies as a victim under its restitution statutes. See Ault v. Indiana, 705
N.E.2d 1078, 1082 (Ind. Ct. App. 1999) (citing I.C. 35-50-5-3); see also
Hendrickson v. Indiana, 690 N.E.2d 765, 768 (Ind. Ct. App. 1998) (affirming
restitution to the State because public policy requires ensuring that victims are
reimbursed and defendants are prevented from being unjustly enriched by their
criminal acts.) (emphasis added). In Ault, the Court looked not to whether the
language included the State, but whether the language precluded the State from
being a victim. 705 N.E.2d at 1082.

In finding that the language did not

preclude[] the State from being found a victim, the Court in Ault found that
restitution in this case advances Indianas public policy of ensuring that victims of
criminal acts are reimbursed. Id.
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Similarly, Connecticut law provides that a victim is eligible for restitution

when one person is convicted of an offense that resulted in injury to another
person. Conn. Gen. Stat. 53a-28(c). When reviewing an award to the State, a
Connecticut court determined that when the people of the State are the victim, then
[t]he people of the state cannot have fewer rights than a private victim. In re
Pellegrino, 42 B.R. 129, 134 (Bankr. D. Conn. 1984) (refusing to discharge
responsibility for restitution to the State after bankruptcy) (citing Kelly v.
Robinson, 479 U.S. 36, 5253 (1986) (recognizing that state criminal restitution
orders serve a rehabilitative and deterrent purpose and holding that restitution
owed the State was non-dischargeable in bankruptcy)).
And other states whose restitution statutes define victim with reference to
person without specifically defining person have concluded that the State is a
victim for purposes of restitution. See, e.g., Washington v. Tobin, 166 P. 3d 1167,
1168, 117074 (Wash. 2007) (en banc) (upholding restitution to the State that
included extraordinary administrative and investigatory costs); Haynes v. Alaska,
15 P.3d 1088, 1091 (Alaska Ct. App. 2001) (citing Alaska Stat. Ann. (West)
12.55.045(a)).

Interpreting the Act to include the State of Alabama in the

definition of victim would be consistent with the law in other jurisdictions

interpreting similar statutes.

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E. While this issue is a matter of first impression, it is not

unprecedented.
Although this is a matter of first impression in Alabamas appellate courts, a
state district court ordered restitution to the State as part of a plea agreement based
on the same course of conduct as Hubbards. Plea Agreement, State v. Wren, No.
DC-14-809 (Dist. Ct. Montgomery Cty. April 1, 2016). Specifically, the Court
ordered former State Representative Greg Wren to pay restitution to the State in
the amount of $24,000. See id. at 1. And Wren paid full restitution of the $24,000
he received in consulting contracts because the State was the victim of his
dishonest services. See id. at 1. That Court accepted the plea agreement on that
theory. This Court should award restitution to the State on the same theory.1
*

Interpreting the Acts definition of victim to include the State is consistent

with the statutes text and surrounding statutes. That interpretation is consistent
with the statutes purpose. And it is consistent with other states interpretations of
their similar statutes. The State of Alabama lost Hubbards honest services when
he sold his office as Speaker for personal gain, and Hubbard should pay restitution
to the State of his ill-gotten gains.

It is also not unprecedented for the State of Alabama to be the victim of violations of
federal law by state public officials. In those case, the federal district courts awarded restitution
to the State under similar circumstances. See States Brief in Support of Sentencing
Recommendation (Doc. 756), at pp. 17-19.
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II.

Awarding restitution in this case would preserve judicial economy.

At trial, the State proved the facts necessary to obtain an award of restitution.

See Ex parte Stutts, 897 So. 2d 431, 433 (Ala. 2004) (quoting Hagler v. State, 625
So. 2d 1190, 1191 (Ala. Crim. App. 1993) (holding that the trial judge need be
convinced only by a preponderance of the evidence as to whether restitution is
proper and the amount of restitution). Requiring the State to file another action
would unnecessarily burden the Court system with duplicative litigation.
And the restitution amount is up to the discretion of the trial judge and will
not be overturned except in cases of clear and flagrant abuse. Ex parte Theodorou,
53 So. 3d at 156. There is simply no need for any more litigation or judicial
proceedings on the States restitution claim. The time has come for Hubbard to
disgorge his ill-gotten gains obtained at the expense of the peoples right to honest
government.
CONCLUSION
For these reasons, the State respectfully asks this Court to enter an Order for
Restitution in the amount of $1,125,000.00, the amount of Hubbards ill-gotten
gains.
Respectfully submitted this 5th day of August 2016.

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DOCUMENT 773

W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Michael B. Duffy
Michael B. Duffy
Deputy Attorney General
mduffy@ago.state.al.us
OF COUNSEL:
W. Van Davis
Supernumerary District Attorney
Acting Attorney General
423 23rd Street North
Pell City, AL 35125
vandclaw@centurylink.net
Miles M. Hart
Deputy Attorney General
mhart@ago.state.al.us
John D. Gibbs
Deputy Attorney General
jgibbs223@outlook.com
Katie Langer
Assistant Attorney General
klanger@ago.state.al.us
Megan Kirkpatrick
Assistant Attorney General
mkirkpatrick@ago.state.al.us
Kyle Beckman
Assistant Attorney General
kbeckman@ago.state.al.us
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, AL 36130

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CERTIFICATE OF SERVICE
I hereby certify that I have, this the 5th day of August 2016, 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:
William J. Baxley
Joel E. Dillard
David McKnight
Baxley, Dillard, McKnight, James & McElroy
2700 Highway 280
Suite 110 East
Birmingham, AL 35223
bbaxley@baxleydillard.com
jdillard@baxleydillard.com
dmcknight@baxleydillard.com
R. Lance Bell
Trussell, Funderburg, Rea & Bell, P.C.
1905 1st Avenue South
Pell City, AL 35125
lance@tfrblaw.com
Phillip E. Adams, Jr.
Blake Oliver
Adams White Oliver Short & Forbus, L.L.P.
205 South 9th Street
Opelika, AL 36801
padams@adamswhite.com
boliver@adamswhite.com
/s/ Michael B. Duffy
Deputy Attorney General

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