COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF. COME NOW the Plaintiffs City of Homewood, Alabama ( Homewood ) and James Alan

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1 ELECTRONICALLY FILED 2/14/2019 1:58 PM 01-CV CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA JACQUELINE ANDERSON SMITH, CLERK IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA CITY OF HOMEWOOD, ALABAMA; ) and JAMES ALAN OWEN, ) Plaintiffs, ) ) v. ) Case No. ) JOHN H. MERRILL, in his official ) capacity as Secretary of State of ) Alabama; HON. ALAN L. KING, in his ) official capacity as Probate Judge of ) Jefferson County; and KAY E. IVEY, in ) her official capacity as Governor of the ) State of Alabama. ) ) Defendants. ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF COME NOW the Plaintiffs City of Homewood, Alabama ( Homewood ) and James Alan Owen ( Owen ) (and collectively Plaintiffs ) and hereby file this complaint for declaratory and injunctive relief as follows: This is an action seeking declaratory and injunctive relief voiding and invalidating the November 6, 2018 general election concerning the local constitutional amendment related to Homewood s efforts to be exempted from the cap on ad valorem taxes under Article XI, 217 of the Constitution of Alabama of In particular, Homewood seeks to have the election declared void for failure to adhere to the requirements of the enabling legislation and for failing to use a uniform ballot at each polling place. Homewood further seeks an order requiring the Defendants to permit a special election to be conducted on the proposed constitutional amendment. Parties 1. Plaintiff CITY OF HOMEWOOD, ALABAMA is a municipality located in Jefferson County, Alabama. 1

2 2. Plaintiff James Alan Owen ( Owen ), is an individual resident of and qualified elector in Jefferson County, Alabama. Owen has an interest in this matter because he is a qualified elector in Jefferson County and a resident of the City of Homewood. 3. Defendant JOHN H. MERRILL ( Merrill ) is the Secretary of State of the State of Alabama and is sued solely in that capacity and in order to provide full relief. 4. Defendant HON. ALAN L. KING ( Judge King ) is the Probate Judge of Jefferson County, Alabama, and is sued solely in that capacity and in order to provide full relief. Judge King is also the Chief Elections Officer for Jefferson County. 5. Defendant KAY E. IVEY ( Ivey ) is the Governor of the State of Alabama, and is sued solely in that capacity and in order to provide full relief. Factual Background 6. Pursuant to Article XI, 217 of the Constitution of Alabama of 1901, ad valorem property taxes are effectively capped at 75 mils ($75.00 per $1000 in value) for all municipalities in Alabama, except for Huntsville, Mountain Brook and Vestavia Hills which are exempted from this cap. Section 217 is generally referred to as the Lid Bill and was added to the Alabama Constitution in The City of Homewood, having reached the applicable cap on property taxes almost two decades ago, recently sought an exemption to 217 by way of a local constitutional amendment that would allow the residents of Homewood to vote by referendum on any future property tax increases without being subject to the cap. In order to enable such an exemption, a proposed local constitutional amendment was prepared and introduced in the Alabama Legislature during the most recent legislative session. 2

3 8. The enabling legislation for the proposed constitutional amendment (HB146) passed the Alabama House of Representatives unanimously on February 15, 2018 and Act unanimously passed the Alabama Senate on March 1, Section 2 of the enabling legislation provided that [a]n election upon the proposed amendment shall be held in accordance with Section to the Constitution of Alabama of 1901 and the election laws of this state. Section 3 of the Act provided that [t]he appropriate election official shall assign a ballot number for the proposed constitutional amendment on the election ballot and shall set forth the following description of the substance or subject matter of the proposed constitutional amendment: Relating only to the City of Homewood in Jefferson County, proposing an amendment to the Constitution of Alabama of 1901, to provide that existing limits on the amount of ad valorem taxes payable on various classes of taxable property in any one year would not apply (A true and correct copy of the enabling Act is attached hereto as Exhibit A). 10. On August 24, 2018, Alabama Secretary of State Merrill certified the prescribed language for the proposed constitutional amendments, including the Homewood local amendment, to appear on the ballot for the general election to be held on November 6, There were four statewide amendments certified, but the Homewood local amendment was the only local constitutional amendment certified for Jefferson County. 11. Pursuant to (d) of the Constitution of Alabama of 1901, notice of the proposed Homewood local amendment was given by proclamation of the Governor and published once a week for four successive weeks preceding the November 6, 2018 general election in the Birmingham News. 12. In accordance with to the Constitution of Alabama of 1901, the proposed constitutional amendment was to be placed on the general election ballot only in Jefferson County 3

4 and would become law if approved by a majority of the qualified voters in both the City of Homewood and in the rest of Jefferson County. 13. In order to encourage support for the proposed constitutional amendment, the City of Homewood and the Homewood City Schools undertook an informational campaign designed to educate voters about the proposed amendment. Because the proposed constitutional amendment was the only local amendment on the ballot in Jefferson County and Homewood had been told that it would appear on the ballot as Local Amendment 1, supporters of the Homewood amendment fashioned their campaign around the phrase Yes On Local One or YOLO! The Homewood City Schools created a website named yolojeffco.com and allocated up to $280, to marshalling support for the local constitutional amendment. Significant time, energy, and resources were devoted to publicizing the proposed constitutional amendment as Local Amendment 1 in Homewood and Jefferson County. 14. In the final days leading up to the November 6, 2018 general election, Homewood learned for the first time that election officials had apparently made the decision to unilaterally renumber the proposed constitutional amendment on the official ballots used by voters in Homewood. Instead of being named Local Amendment 1, the proposed amendment was renumbered and renamed as Local Amendment 2 even though there was only one local amendment under consideration in Jefferson County. (True and correct copies of the different sample ballots are attached hereto as Exhibit B). 15. The decision to assign two different ballot numbers to the proposed constitutional amendment was an innocent mistake that was motivated by good intentions, but which resulted in unforeseen adverse consequences. These unforeseen consequences rendered the November 6, 2018 election on the proposed amendment void and invalid. 4

5 16. The decision to renumber the proposed constitutional amendment caused a great deal of voter confusion on the very eve of the election and seriously undermined or vitiated Homewood s efforts to educate voters about the proposed amendment. This confusion was exacerbated by the fact that there were also four statewide constitutional amendments on the general election ballot, several of which had engendered significant controversy. 17. In the November 6, 2018 general election, although it was approved by voters in Homewood, the proposed constitutional amendment narrowly failed to receive the approval of a majority of the voters in greater Jefferson County. When the votes in Homewood are added to the votes in the rest of Jefferson County, the amendment lost by only 2565 votes. Claims for Relief 18. Section 3 of the enabling Act for the Homewood constitutional amendment provided that [t]he appropriate election official shall assign a ballot number for the proposed constitutional amendment on the election ballot. (Emphasis added). This language required that the proposed constitutional amendment be assigned a single, solitary number when it was placed on the general election ballot. The last-minute renumbering of the proposed amendment so that it had one ballot number in parts of Jefferson County and another ballot number in other parts of Jefferson County violated the unambiguous requirements of the enabling Act. As a general proposition, when the statute expressly declares how the ballot shall be prepared, distributed, marked and identified by the officers charged with such duties and providing that ballots which do not so conform shall not be counted, a failure of substantial compliance with such mandatory provision invalidates the ballot. Walker v. Junior, 24 So.2d 431, 432 (Ala. 1945). Because the election ballots did not comply with the enabling legislation, the results of the election must be voided. 5

6 19. The decision to assign two different ballot numbers to the proposed constitutional amendment also violated Alabama law requiring uniformity of ballots. Ballot uniformity has long been the public policy and law in Alabama. Section , CODE OF ALABAMA, for example, provides in pertinent part: There shall be provided at each polling place at each election at which public officers are voted for, but one form of ballot for all the candidates for public office. (Emphasis added here). Because the proposed constitutional amendment was assigned different ballot numbers depending on the polling place, the ballots were not uniform and the election must be voided. 20. The decision to assign two different ballot numbers to the proposed constitutional amendment rendered the November 6, 2018 vote invalid and void. COUNT ONE: DECLARATORY JUDGMENT 21. Plaintiffs incorporate by reference the allegations in the preceding paragraphs as if fully set out herein. 22. There exists a real, substantial, and bona fide controversy between the parties regarding the validity of the November 6, 2018 vote on the proposed constitutional amendment and the decision to assign two different ballot numbers to the proposed amendment. 23. Pursuant to the Alabama Declaratory Judgment Act, , et seq., Plaintiffs request that this Court enter a declaratory judgment finding that: (a) the assignment of two different ballot numbers to the proposed constitutional amendment was improper and violated Alabama law; (b) because of the improper assignment of two different ballot numbers to the proposed constitutional amendment, the November 6, 2018 vote on the proposed amendment is invalid and void; and (c) because the November 6, 2018 vote on the proposed constitutional amendment is invalid and void, there should be a special election conducted in order to provide voters with the 6

7 opportunity to consider and vote on the proposed amendment without the improper ballots used in the November 6, 2018 vote. COUNT TWO: REQUEST FOR INJUNCTIVE RELIEF 24. Plaintiffs incorporate by reference the allegations in the preceding paragraphs as if fully set out herein. 25. The decision to assign two different ballot numbers for the proposed constitutional amendment caused harm and injury to Plaintiffs which can only be remedied by the holding of a special election in order to give voters the opportunity to consider and vote on the proposed amendment without the confusion caused by the improper ballots used in the November 6, 2018 vote. 26. Plaintiffs request that this Court enter an order directing the Defendants and other appropriate election officials to schedule a special election in which voters will be permitted to consider and vote on the proposed amendment with a single assigned ballot number, after appropriate notice has been given pursuant to to the Constitution of Alabama of appropriate. 27. Plaintiffs request such further, additional, and different relief as this Court thinks OF COUNSEL: SIROTE & PERMUTT, P.C Highland Avenue South P.O. Box Birmingham, AL Tel.: (205) Fax: (205) bragsdale@sirote.com msalvati@sirote.com /s/ Barry A. Ragsdale Barry A. Ragsdale (RAG003) Meghan A. Salvati (SAL035) 7

8 SERVE DEFENDANTS BY CERTIFIED MAIL AS FOLLOWS: John Harold Merrill Secretary of State State of Alabama State Capitol Building Suite S Dexter Avenue Montgomery, AL Honorable Alan L. King Probate Judge Jefferson County Courthouse 716 North Richard Arrington Jr. Blvd. Birmingham, AL Kay E. Ivey Governor of the State of Alabama State Capitol Building 600 Dexter Avenue Montgomery, AL

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