The Alabama Attorney General's Office asked a Montgomery County Circuit Court judge to let a lawsuit against the Alabama Ethics Commission continue last week.

Alabama Attorney General Steve Marshall filed a lawsuit in November in Montgomery County Circuit Court against the Alabama Ethics Commission, stating their advisory opinion No. 2022-03 "directly interferes with and impairs his duties." An attorney for the ethics commission filed a motion to dismiss the lawsuit in December.

The opinion from July 2022 states that the "Ethics Commission is not required or permitted to disclose exculpatory information or Brady material to respondents of complaints filed with the Ethics Commission."

According to a filing last week by Alabama Deputy Attorney General Katherine Robertson, the "Attorney General has standing under the Alabama Administrative Procedures Act to challenge Advisory Opinion 2022-03 because it is, by definition, a rule."

"The Ethics Commission was thus legally bound to promulgate the opinion as a rule, to allow for a notice-and-comment opportunity, and to submit the opinion to the Legislative Council for review," Robertson said in the filing. "The Ethics Commission failed to comply with this duty. The Attorney General has asserted his vested procedural right to the Ethics Commission's compliance with the Act and has shown that this court can fully resolve this dispute relief by simply requiring the Ethics Commission to republish the opinion as a rule."

Brian Hall Patterson, Jr., attorney for the Alabama Ethics Commission, said in a motion to dismiss in December that the advisory opinion is "not a self-imposed prohibition on providing Brady material to respondents." 

"Rather, it provides an interpretation of the existing requirements imposed by the Ethics Act in accordance with the Commission's obligation to issue advisory opinions," Patterson said in the filing.

Patterson wrote in the filing that "there is nothing in the Ethics Act that prohibits the Ethics Commission from issuing an Advisory Opinion to itself, the members of the Ethics Commission, the Director of the Ethics Commission, or the members of the staff of the Ethics Commission."

"The revocation of Advisory Opinion 2022-03 would cause a chilling effect for both potential complainants and witnesses if they knew that their statements could be produced to the respondent," Patterson said in the motion to dismiss in December. "The nullification of Advisory Opinion 2022-03 could also result in the public disclosure of evidence that may be incomplete and damaging to complainants or third parties."

Marshall said the lawsuit filed in November, "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." 

"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," Marshall added.

The Brady rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government's possession to the defense.

Marshall asks in the lawsuit for the court to rule that the advisory opinion was "adopted in violation of the Alabama Administrative Procedure Act" and declare it null and void."

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