No IN THE SUPREME COURT OF ALABAMA. DEL MARSH, et al., Appellants, vs. LYNN PETTWAY, Appellee

Transcription

1 E-Filed 04:46:05 PM Honorable Robert Esdale Clerk Of The Court No IN THE SUPREME COURT OF ALABAMA DEL MARSH, et al., Appellants, vs. LYNN PETTWAY, Appellee On Appeal from the Circuit Court of Montgomery County OPPOSITION TO "EMERGENCY MOTION TO VACATE OR STAY TEMPORARY RESTRAINING ORDER PENDING APPEAL" JAMES H. ANDERSON WILLIAM F. PATTY Jackson, Anderson & Patty, P.C. 250 Commerce St., Suite 100 Montgomery, Alabama (334) /(334) wpatty@jaandp.com; janderson@jaandp.com ROBERT SEGALL Copeland, Franco, Screws,& Gill, P.C. 444 South Perry Street Montgomery, AL 36104/(334) segall@copelandfranco.com THERON STOKES CLINT DAUGHTREY Alabama Education. Association P.O. Box 4177 Montgomery, AL (334) / therons@alaedu.org EDWARD STILL, ESQ. Edward Still Law Firm LLC 130 Wildwood Parkway Ste Birmingham, Alabama still@votelaw.com SAMUEL H. HELDMAN, ESQ. The Gardner Firm, P.C st Street NW Washington, D.C (202) sheldman@gmail.com

2 Table of Contents 1. The"emergency motion" seeks relief that would be appeal-dispositive, not mere provisional relief. The Court should not issue such relief without actual briefing. Therefore, the request to "vacate" should be carried with the case (if the Court denies Appellee Pettway's motion to dismiss or remand), and the request to "stay" should be denied The Court should also deny the motion because movants did not comply with Ala. R. App. P. 8(b) To the extent this Court takes an initial and rushed look at the merits of the underlying issues at this stage, the Court should recognize that there are strong arguments against movants' contentions A. Pettway has a ripe claim under the Open Meetings Act. It is not a claim that a law is unconstitutional, but is a claim arising under the explicit terms of an Act that the Legislature itself passed B. The harm to Pettway is the harm that the Open Meetings Act is designed to protect the public against; there is no other remedy for that harm C. To enforce the Open Meetings Act would not violate the "separation of powers." The Legislature intentionally decided that it would be subject to the Act, as part of its authority to determine the rules of its proceedings. The Judiciary must respect that legislative choice; to override or ignore it, as movants ask, would be the real "separation of powers" problem D. Movants' argument, that a legislative chamber's violation of its own Rules is non-justiciable, ignores the Legislature's own enactment of 36-25A-5: a body must follow its own rules of i

3 parliamentary procedure, and suit can be brought when that command is violated E. The allegation of a secret meeting of a quorum of the conference committee also states a valid claim under the Open Meetings Act F. Even if relief against legislators were barred by legislative immunity, still the claim for equitable relief would remain against Mr. Woodard Conclusion ii

4 TABLE OF AUTHORITIES Table of Authorities Hilton v. Braunskill, 481 U.S. 770, 776 (1987) Ex parte Health Care Management Group, Inc., 522 So. 2d 280, 282 (Ala. 1988) Ex parte Sutley, 86 So.2d 997, 999 (Ala. 2011) Ferguson v. Commercial Bank, 578 So. 2d 1234, 1236 (Ala. 1991) Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997) Ex parte Ankrom, So.3d, 2013 Ala. LEXIS 8 (Ala. 2013) BJCCA v. Birmingham, 912 So.2d 204, 212 (Ala. 2005) STATUTES AND OTHER AUTHORITIES Alabama Constitution, Article IV, ,18 Alabama Constitution, Article IV, Alabama Constitution, Article V, Ala. Code 36-25A ,4 Ala. Code 36-25A ,19,20 Ala. Code 36-25A-2(4) ,19 Ala. Code 36-25A-1(a) ,21 Ala. Code 36-25A-5(a) ,19,23 Ala. Code 36-25A Ala. Code 36-25A-9(f) ,21,22,23 iii

5 Ala. Code 36-25A ,23 Ala. Code 36-25A-2(6) Ala. R. App. P. Rule 8(b) ,9 Ala Rule of Civil Procedure 62(c) Joint Rules of the Alabama Legislature, Rule ,19,20 iv

6 OPPOSITION TO "EMERGENCY MOTION TO VACATE OR STAY TEMPORARY RESTRAINING ORDER PENDING APPEAL" Plaintiff-Appellee Lynn Pettway hereby respectfully opposes the motion to vacate or stay the temporary restraining order (TRO). 1. The "emergency motion" seeks relief that would be appeal-dispositive, not mere provisional relief. The Court should not issue such relief without actual briefing. Therefore, the request to "vacate" should be carried with the case (if the Court denies Appellee Pettway's motion to dismiss or remand), and the request to "stay" should be denied. As a practical matter, the motion seeks not a "stay" or any other provisional relief but a final victory even before briefing, which even this Court could almost certainly not un-do - not even if the Court determined after briefing that the appeal should have been dismissed or that the trial court's ruling should have been affirmed. The question at stake right now, in this case, is whether the Honorable Mr. Woodard, the Clerk of the House of Representatives, will transmit HB84 (as substituted) to Governor Bentley. The trial court has issued a TRO forbidding Mr. Woodard from doing that, for a few days. A hearing on the request for preliminary injunction is set for March 15, just 4 days from now. 1

7 The questions which the Appellants-Movants seek to present boil down to the question whether Mr. Woodard can be ordered not to transmit such a bill, where its passage was effectuated through multiple alleged violations of the Open Meetings Act, Ala. Code 36-25A-1 et seq. Those violations include an alleged unlawful secret meeting of a quorum of a legislative committee, and disregard of the legislature's own rules of parliamentary procedure (see 36-25A-5 (bodies covered by the Open Meetings Act must adhere to their own rules of parliamentary procedure)). The trial court has scheduled a preliminary injunction proceeding, at which it will further consider Appellants' contention that such relief is inappropriate under the circumstances. For now, by its TRO, the trial court has simply maintained the status quo to allow the parties and the court to prepare for a deliberate resolution of the legal and factual issues that may be involved. The trial court has noted that it wants to hear further argument on the legal issues and positions that the defendants have raised. (See final paragraph of TRO, Ex. G to Motion). The trial court is still going to consider the issues; for now it has merely maintained the status quo. 2

8 Appellants contend that the issues presented in their appeal are of "enormous public importance." See Docketing Statement, section XII. By their motion to vacate or stay, therefore, they are in effect asking this Court to decide those issues of "enormous public importance" as a practical matter, not even after massively-expedited briefing on the merits, but before any briefing on the merits. The Court should not take such an extraordinary step. The request to "vacate" the TRO "pending appeal" is, on its face, a request for the very relief that movants would obtain if they won the appeal. Therefore, that request should be carried with the case, if the Court does not grant Appellee Pettway's motion to dismiss or remand. There is simply no basis for granting that overtly case-dispositive relief before the Court has received the briefs. The Court should, by the same token, deny the motion to "stay." An order that was (in form) a "stay pending appeal" would be dispositive of this case in a practical sense. If this Court "stays" the TRO, then Mr. Woodard will transmit HB84 (as substituted) to Governor Bentley. Once that happens, the hands of time cannot be turned back. There will be 3

9 remaining questions as to what other relief Plaintiff Pettway might obtain, on his claim under the Open Meetings Act, Ala. Code 36-25A-1 et seq. Other claims, by Pettway or others, may also become ripe - such as constitutional challenges to the law - and could be brought. But the possibility of the relief that was granted by TRO, and that is now scheduled to be the subject of the preliminary injunction hearing, will be gone forever. Hilton v. Braunskill, 481 U.S. 770, 776 (1987), sets out a useful standard, as to whether to stay an order pending appeal: "[T]he factors regulating the issuance of a stay are generally the same: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Here, none of those factors support a stay. Appellants are unlikely to succeed on the "merits" of this 1 appeal, both because of jurisdictional issues and because the 1 See Pettway's motion to dismiss or remand. Movants ask the Court to treat their appeal as a mandamus petition, if (as Pettway has argued) there is no right to appeal. 4

10 trial court's TRO was a reasonable exercise of discretion to maintain the status quo for a short time. While Appellee Pettway will discuss the "merits" issues of the litigation in Section 3 below, the more relevant principle at this point is that the merits of the litigation are not reached yet. The TRO should be affirmed (if this Court has jurisdiction) not as being a correct decision on the merits of the underlying claims and issues, but because it was an appropriate preliminary step before deciding the merits of the underlying claims and issues. "It is well settled that the purpose of granting a temporary restraining order is to maintain the status quo until the merits of the case can be determined." Ex parte Health Care Management Group, Inc., 522 So. 2d 280, 282 (Ala. 1988). "It is not contemplated by the Rules that a T.R.O. request will result in a hearing on the merits of the case. A proceeding on an application for a T.R.O., by its very nature, does not reach the merits of a case. A T.R.O. is granted to maintain the status quo until there is an (Motion, p. 5). But mandamus will not lie where another adequate remedy exists. Ex parte Sutley, 86 So.2d 997, 999 (Ala. 2011). Here, there is another adequate remedy: oppose the preliminary injunction, four days from now, and appeal if that effort is unsuccessful. 5

11 opportunity for an adjudication on the merits." Ferguson v. Commercial Bank, 578 So. 2d 1234, 1236 (Ala. 1991). That is what the trial court did: exactly what a TRO is supposed to do. Further, movants would not be irreparably injured by denial of the stay. irreparable injury.) (Mere impatience does not count as But as already noted, Pettway would be irreparably injured by a stay, as it would (as a practical matter) remove any possibility of his obtaining the relief that was sought and ordered. And the public interest lies in obtaining a deliberate, rather than rushed, resolution of the issues that Appellants describe as being so important. In assessing these equitable considerations, the Court should not be under the impression that the TRO will keep the Legislature from enacting legislation. Thus there is no actual harm to the Legislature, and certainly not to the public, from a denial of a stay. As noted in Pettway's response to the "motion to expedite," there are many calendar weeks left in the Legislative session; and movants themselves control when, during that period, the legislative days will fall. 6

12 In fact, even now the Legislature is free to consider enacting the same legislation. It could be introduced as a bill today, in each house. Within a very few days, it could be passed by both houses and presented to the Governor for his signature - if legislators, having been given more than a few minutes to think about the massive issues of policy that the bill implicates, really believe that it is wise. Alternatively, if the Legislature's leadership are intent on taking their chances by insisting that HB84 (as substituted) is immune from challenge under the Open Meetings Act, they have a chance to prevail on that before the Legislative session ends. If they can convince the trial court not to issue a preliminary injunction, or if they successfully appeal from a preliminary injunction, then the bill as already passed could make it to the Governor well before the end of the Legislative session. With both of those possibilities being open to the Legislature, there is no reason to believe either that the public interest demands a stay, or that denying a stay would cause any cognizable harm to Appellants. 7

13 2. The Court should also deny the motion because movants did not comply with Ala. R. App. P. 8(b). The Court should also deny the motion because the movants did not comply with Ala. R. App. P. 8(b). That Rule declares specifically that a motion such as this must be made to the trial court in the first instance, unless the movant shows that it is "not practicable" to do so. (b) Stay must ordinarily be sought in the first instance in trial court; motion for stay in appellate court. In a civil action, application for a stay of the judgment or order of a trial court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the trial court. A motion for such relief may be made to the appellate court in which the appeal is pending, but the motion shall show that application to the trial court for the relief sought is not practicable, or that the trial court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the trial court for its action. (emphasis supplied). 2 Here, movants' only suggestion as to impracticability is their supposition that the trial court would have denied a 2 This Rule is applicable, if a TRO is appealable as an injunction. As we have shown elsewhere, a TRO is not appealable as an injunction. But if the Court disagrees, then by the same token, Rule 8(b) applies here. 8

14 motion for a stay: they say that the trial court granted the TRO, so the trial court would surely not stay it. That is their whole argument. (Motion, p. 4). The argument is insufficient. The whole point of Rule 8(b) is that one should not assume that a trial court, having issued an injunction, will refuse to stay it. As the Rule says, the appellate court should then be apprised of what reasons the trial court gave for denying a stay, if that is what the trial court does. Movants have simply chosen to bypass the proper procedure. Perhaps movants are suggesting that Rule 8(b) is only about permanent injunctions, and that a trial court does not need to be asked to stay a preliminary injunction or TRO. If that is their argument, it too is contrary to law. If that were what Rule 8(b) meant, it would speak of "permanent" injunctions only. It does not. Relatedly, and further confirming the error of movants' position, Rule of Civil Procedure 62(c) expressly recognizes the power of a trial court to suspend or modify an interlocutory injunction pending appeal. 3 It is not inherently futile or impracticable to ask 3 Rule 62 provides: "(c) Injunction pending appeal. When an interlocutory or final judgment has been rendered granting, dissolving, or denying an injunction, the court in 9

15 the trial court to do something that the Rules of Civil Procedure specifically contemplate. Movants' stance in this regard reflects an unfortunate lack of respect for the trial court. 4 They act as though it is beneath them, to argue to the trial court; they want to skip right to this Court for decisions in the first instance. This Court must not accept that sort of disrespect to any part of the Judiciary. 3. To the extent this Court takes an initial and rushed look at the merits of the underlying issues at this stage, the Court should recognize that there are strong arguments against movants' contentions. As we have noted above, the merits are not reached on a its discretion may suspend, modify, restore, or grant an injunction during the pendency of an appeal from such judgment upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. The power of the court to make such an order is not terminated by the taking of the appeal." 4 It is, in that sense, like their unwillingness even to try to convince the trial court not to issue a preliminary injunction. Movants claim, in this Court, that the law supports their position with perfect clarity. Yet they are unwilling to see whether, on the request for preliminary injunction, the trial court might agree. (See related discussion in Pettway's "Response to Emergency Motion to Expedite Appeal,"). The reasonable inference, therefore, is either (1) that movants know that they are exaggerating the strength of their legal position, or (2) that movants entirely fail to respect the trial court's integrity and willingness to follow the law, or (3) all of the above. 10

16 TRO. But if this Court looks forward to the merits of the dispute that have not yet been resolved below, there are strong arguments in favor of the trial court's ability to enforce the Open Meetings Act through a TRO, and then a preliminary injunction, directed at Mr. Woodard. A. Pettway has a ripe claim under the Open Meetings Act. It is not a claim that a law is unconstitutional, but is a claim arising under the explicit terms of an Act that the Legislature itself passed. Movants argue that Pettway has no ripe claim. They contend in that vein that "the circuit court has prejudged as unconstitutional not a law, but rather a bill passed by both houses of the legislature." (Motion, p. 15). Movants misunderstand, or mischaracterize, the nature of this suit. It is not a claim that a bill, or law, is unconstitutional. Nor has the trial court made any such ruling. Pettway's claim, instead, is a statutory claim under a law that the Legislature itself enacted - and which the Legislature intentionally made applicable to its own activities. See Ala. Code 36-25A-2(4)(reflecting Legislature's express direction that Open Meetings Act's requirements are applicable to the "legislative[] department of the state" and "committees" thereof, as well as to other 11

17 governmental bodies). The cause of action under the Open Meetings Act accrues and is ripe, not when the Governor signs a bill, but when a governmental body takes action forbidden by the Open Meetings Act. Act. This includes the Legislature, which is subject to the The violation does not come into existence upon some later bill-signing by the Governor (just as a violation of the Act while considering a proposed constitutional amendment would not come into existence only if the People adopted the proposed amendment). The violation of the Act, in the Legislature, exists when it occurs. These movants, as individual legislators, apparently regret the passage of the Open Meetings Act and regret its applicability to them. But it is the law. B. The harm to Pettway is the harm that the Open Meetings Act is designed to protect the public against; there is no other remedy for that harm. Likewise, movants err in arguing (Motion, pp ) that Pettway suffers no harm until the bill is signed, and that he has an adequate remedy in that he can challenge the constitutionality of the bill. Again, Movants fail to recognize the nature of the Open Meetings Act that the Legislature itself created. The harm, against which the Open 12

18 Meetings Act was supposed to protect the public, is the harm of government-in-secret ( 36-25A-1(a)) and the harm of government bodies failing to abide by their own rules of parliamentary procedure ( 36-25A-5(a)). This Open Meetings Act suit is the procedure that the Legislature itself provided, as a mechanism for challenging legislators' violations of those commands. Furthermore, the Legislature itself demanded that Open Meetings Act suits be brought promptly ( 36-25A-10), and provided that meaningful relief invalidating unlawful action was available only if the action was brought even more quickly (i.e., within 21 days after the action in question, see 36-25A-9(f)). Even if Pettway waited until the Governor signed the bill, that would risk his ability to obtain meaningful relief, as others might then say that they had "relied" on the bill once the Governor signed it. (See 36-25A-9(f), limiting relief if there has been good-faith third-party reliance.) Again, these legislators apparently regret that the Legislature enacted these provisions, and may wish that they could postpone or avoid any consequences for their violations of the Act; but these provisions are the law. 13

19 C. To enforce the Open Meetings Act would not violate the "separation of powers." The Legislature intentionally decided that it would be subject to the Act, as part of its authority to determine the rules of its proceedings. The Judiciary must respect that legislative choice; to override or ignore it, as movants ask, would be the real "separation of powers" problem. The very existence of the Open Meetings Act is also the primary answer to the movant's cry of "separation of powers." It was not the Judiciary or the Executive who decided that the Legislature would be covered by that Act; it was the Legislature itself. The Legislature decided that this would help the people of Alabama. The Legislature decided that it, along with other governmental bodies throughout the State, would be subject to the entire Act. The Legislature decided not to exempt itself from the Act's substantive demands or from the Act's enforcement provisions. In so doing, the Legislature was taking the steps that it thought best, to fulfill its power and obligation "to determine the rules of its proceedings" and "enforce obedience" to them. Ala. Const. 53. In so doing, the Legislature was also furthering the Constitutional command that its doors be open to the public. Ala. Const

20 These individual legislators, as movants, now ask this Court to ignore what the Legislature as a whole enacted, in the Open Meetings Act. They do not dare ask the Court actually to hold the Open Meetings Act unconstitutional; they make no such claim. Instead they simply want this Court not to follow that law. It is therefore ironic that their cry is "separation of powers" - because the real violation of the "separation of powers" principle of our Constitution would be for the judiciary to refuse to enforce a valid law as the Legislature has written it. This has been this Court's most common, and correct, refrain for some years: that this Court must not claim for itself the right to re-write statutes or ignore them, because the power to write statutes belongs with the Legislature. "[I]t is our job to say what the law is, not to say what it should be. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers." Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997), cited and quoted in (among other cases) Ex parte Ankrom, So.3d, 2013 Ala. LEXIS 8 (Ala. 2013). 15

21 The core concern of the "separation of powers" doctrine is that one branch must not "usurp" another branch's power. See, e.g., BJCCA v. Birmingham, 912 So.2d 204, 212 (Ala. 2005). But for the Judiciary to do what the Legislature told the Judiciary to do, in the Open Meetings Act itself, is not a Judicial usurpation of power. Movants also claim that the trial court "violated the separation of powers doctrine by improperly relying on testimony concerning legislative acts." (Motion, p. 13). This must be in regard to the trial court's mention of testimony given by Senator Quinton Ross and Representative Joe Hubbard regarding the "secret meeting" Open Meetings Act 5 issue. (See TRO, Exhibit G, pp. 1-2). Movants' position - reducing essentially to the notion that an unlawful secret meeting of a legislative body can't be proven unless the Legislature itself notes the secret meeting on its official 5 Even if testimony were not permissible, the Legislature's own records will demonstrate the other way that the Legislature violated the Open Meetings Act: by violating its own Rule 21. The Legislature's records will not reflect any motion, much less a vote, to suspend Rule 21 on the floor of either house regarding the adoption of the conference committee substitute of HB84. As further discussed below, the Legislature's own records - the bill, and Rule 21 - will also demonstrate the applicability of Rule 21, as enforced through the Open Meetings Act. 16

22 records - would make a mockery of the Legislature's own decision to cover itself under the Act. Movants' position bears no relationship to any reasonable understanding of what the Legislature intended, and what the Legislature provided, in the Act. Again, it is movants who are asking this Court to violate the most basic "separation of powers" principle. 6 Movants also invoke Section 125 of the Constitution ("Every bill which shall have passed both houses of the legislature, except as otherwise provided in this Constitution, shall be presented to the governor "). But this provision - which appears in Article V of the Constitution, about the powers and duties of the Executive Branch - should not be read as obliterating the Legislature's own power to enact statutory controls on its own legislative operations. If a bill's progress through the Legislature is 6 It may further be noted that there were various other problems in regard to the progress of HB84 - including various problems that may rise to the level of violations of the Constitution itself. However, this lawsuit, at this stage, is not about those; this lawsuit is about violations of a particular statute, the Open Meetings Act. As movants themselves emphasize, any constitutional challenges must wait until it is known whether this bill has become law. If movants are asking this Court to make some pronouncement about evidentiary admissibility to interfere with future potential constitutional claims that cannot be brought yet, then the answer is that this Court cannot do that, and this Court should not allow itself to be used in that way. 17

23 accomplished by procedures which the Legislature itself has declared unlawful, then the Legislature can create a rule of law that blocks the bill from going further once the fatal flaw is identified. That, we submit, is the situation here. By doing so, in the Open Meetings Act, the Legislature exercised its judgment as to how best "to enforce obedience to its processes" under 53 of the Constitution. This Court should accept that. We recognize that, upon further inquiry, the trial court may decide that the remedy is inappropriate in this particular case, for one reason or another. But there is no absolute rule of constitutional law that "anything goes" in the Legislature as long as some bill makes it across the finish line. Even if no other body can set rules and limits in the first instance, still the Legislature itself can set limits, and it can empower the Judiciary to enforce those limits. That is exactly what the Legislature did, in the Open Meetings Act. Movants have not demonstrated that the Legislature lacks these powers. To hold that the Legislature lacks these powers would itself be a monumental holding of constitutional law, which should be undertaken only upon careful deliberation. It is not the stuff of which "emergency" rulings are made. 18

24 D. Movants' argument, that a legislative chamber's violation of its own Rules is non-justiciable, ignores the Legislature's own enactment of 36-25A-5: a body must follow its own rules of parliamentary procedure, and suit can be brought when that command is violated. Part of Pettway's Open Meetings Act claim, as described in Count Two, is that the Legislature violated Rule 21 of the Joint Rules of the Alabama Legislature. Movants argue (motion, pp ) that any violation by the Legislature of its own rules is non-justiciable. Once again, movants are ignoring and asking this Court to ignore the Open Meetings Act. Movants literally do not even cite the relevant command, enacted by the Legislature: Ala. Code 36-25A-5(a), which commands, "Unless otherwise provided by law, meetings shall be conducted pursuant to the governing body's adopted rules of parliamentary procedure not in conflict with laws applicable to the governmental body." That was the Legislature's own enactment, its own choice. Likewise, the Legislature's own choice was to include itself among the entities covered by the Open Meetings Act, see 36-25A-2(4), and to provide a cause of action, see 36-25A-9, when the Act's commands (such as 36-25A-5(a)) are violated. 19

25 Movants rely on cases that predate the Open Meetings Act or that do not discuss the Open Meetings Act. And again, movants do not ask this Court to hold the Open Meetings Act unconstitutional, insofar as it represents a Legislative choice to make cases such as this justiciable. Holding any part of the Open Meetings Act unconstitutional - whether this Court did so explicitly or implicitly - would be a holding of enormous importance. It is certainly not the sort of thing that ought to be done on a rushed basis, before briefing, where the movants have not even asked for such a holding. 7 7 Movants also assert that the bill was not subject to Rule 21. They frame this as a question of fact and evidence: "the plaintiff has failed to offer a shred of evidence that the passage of House Bill 84 violated Rule 21 because it was an appropriations bill" (Motion, p. 20). As a fact question, it would be particularly unsuited to emergency rushed disposition by this Court. If the availability of relief under 36-25A-5 depends on the sufficiency of evidence, as movants' fall-back argument suggests, then this is a matter to be litigated at the preliminary injunction hearing. But in reality, the text of the bill itself demonstrates that it is an appropriations bill, and apparently an unlimited appropriation at that. Section 8(a)(2) of the bill provides, "Income tax credits authorized by this section shall be paid out of sales tax collections made to the Education Trust Fund,... and there is hereby appropriated therefrom, for such purpose, so much as may be necessary to annually pay the income tax credits provided by this section." 20

26 E. The allegation of a secret meeting of a quorum of the conference committee also states a valid claim under the Open Meetings Act. Another part of the Open Meetings Act claim, in this case, is that there was a secret closed meeting of a quorum of the "conference committee," leading to the massive surprise changes in the bill that had been under consideration. Secret and closed meetings of a committee quorum are, in general, violations of the Open Meetings Act. See 36-25A-1(a); 36-25A-2(6). Movants argue evidentiary sufficiency: "The plaintiff offered no evidence, however, to support her allegation that there was a secret meeting by a quorum of Republican legislators during the recess that discussed House Bill 84." (Motion, p. 7). Again, that sort of question of evidentiary sufficiency is to be litigated in a preliminary injunction hearing; it is no basis for emergency action by this Court on review of a TRO. Movants also argue that, even if they did have a secret closed meeting, their violation of law was wiped away by the subsequent public vote of the conference committee, or by the votes of the houses of the legislature. Movants invoke Ala. Code 36-25A-9(f); but that section does not shield their 21

27 actions. Section 9(f) allows the judiciary to order, as relief under the Open Meetings Act, the invalidation of acts taken in violation of the Act. (This is why, contrary to movants' overall position, the judiciary can invalidate legislative actions, under the Act itself, when they violate the Act.) The last clause of section 9(f) provides, "however, that any action taken at an open meeting conducted in a manner consistent with this chapter shall not be invalidated because of a violation of this chapter which occurred prior to such meeting." The last proviso of section 9(f) does not shield movants, because (1) The conference committee's public vote did not take place "at an open meeting conduct in a manner consistent with this chapter," and the secret quorum meeting did not take place "prior to such meeting." Instead, the secret quorum meeting took place during a mere recess of the conference committee meeting. The secret meeting was, in legal effect, an unlawful part of the conference committee meeting; and thus there is no safe harbor. (2) The House and Senate votes were not "taken at an open meeting conducted in a manner consistent with this chapter," because of the violation of the 22

28 Legislature's own parliamentary rules (enforceable under 36-25A-5(a)) that has already been described in a prior section. These arguments are, we recognize, not simple ones. They deserve full airing and deliberation before a final decision is made. Movants cite no caselaw interpreting section 9(f); they seek to make new law. New law should be made deliberately and carefully, if at all. F. Even if relief against legislators were barred by legislative immunity, still the claim for equitable relief would remain against Mr. Woodard. Movants contend that suit against legislators under the Open Meetings Act is barred by legislative immunity. (Motion, p. 16). Once again, they do not actually ask the Court to hold the Act unconstitutional; they do not mention the Act in this portion of their argument. They hope instead that the Court will join them in whistling past the remedy and enforcement provisions of the Act, 36-25A-9. No restraining order was entered against legislators. Only Mr. Woodard was restrained. So, this case does not, at this point, present the question whether legislators can be enjoined. Whether legislators can face monetary penalties or other relief, under 36-25A-9, has not been decided below; 23

29 there is no emergency requiring this Court to decide it, on a rushed basis, in the first instance. Frankly, it is questionable whether the legislators actually want to be dismissed on the basis of immunity, leaving them on the sidelines while Mr. Woodard continues as the remaining defendant. If they really do want that, they should make it clear at Friday's preliminary injunction hearing. For now, "legislative immunity" is simply not an answer to the TRO that binds Mr. Woodard. Conclusion The Court should deny the motion. There is no emergency. These legislators are unwilling to openly ask this Court to strike down the Open Meetings Act; instead, they want this Court to join them in ignoring that law. The Court should decline their invitation. RESPECTFULLY SUBMITTED this 11th day of March, COUNSEL FOR APPELLEE /s/ James H. Anderson JAMES H. ANDERSON [ASB-4440-R73J] WILLIAM F. PATTY [ASB-4197-P52W] Jackson, Anderson & Patty, P.C. 250 Commerce Street, Suite 100 Montgomery, Alabama (334) /Fax: (334) wpatty@jaandp.com; janderson@jaandp.com 24

30 ROBERT SEGALL(ASB-7354-E68R) Copeland, Franco, Screws,& Gill, P.C. 444 South Perry Street Montgomery, AL /(334) SAMUEL H. HELDMAN, ESQ. The Gardner Firm, P.C st Street NW Washington, D.C (202) THERON STOKES (ASB:2106-T83T) CLINT DAUGHTREY(ASB C) Alabama Education Association P.O. Box Dexter Avenue Montgomery, AL (334) / fax therons@alaedu.org EDWARD STILL, ESQ. EDWARD STILL LAW FIRM LLC 130 Wildwood Parkway Ste Birmingham, Alabama still@votelaw.com This brief was prepared in Courier New, 13 point type CERTIFICATE OF SERVICE I hereby certify that on March 11, 2013, I e-filed the foregoing with the Clerk of the Court and served all counsel of record by electronic mail and by U.S. Postal Service as follows: Marc James Ayers, Esq. R. Aaron Chastain, Esq. BRADLEY ARANT BOULT CUMMINGS LLP One Federal Place 1819 Fifth Avenue North 25

31 Birmingham, Alabama (205) / (205) (Fax) mayers@babc.com / achastain@babc.com Attorneys for Appellants Senator Del Marsh and Senator Gerald Dial J. Rudy Hill, Esq. BRADLEY ARANT BOULT CUMMINGS LLP Alabama Center for Commerce 401 Adams Avenue, Suite 780 Montgomery, Alabama (334) / (334) (fax) rhill@babc.com Attorney for Appellants Senators Del Marsh and Senator Gerald Dial Christopher W. Weller (WEL020) Patricia R. Osuch (ROM012)90 Capell & Howard, P.C. P. O. Box 2069 Montgomery, AL (334) / (334) (fax) cww@chlaw.com / pro@chlaw.com Attorneys for Representatives Jay Love, Chad Fincher and Mike Hubbard Andrew L. Brasher OFFICE OF ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama (334) /(334) (fax) abrasher@ago.state.al.us Attorney for Jeff Woodard /s/ James H. Anderson James H. Anderson 26