Case 4:05-cv-00201-HLM Document 98 Filed 06/08/2006 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION COMMON CAUSE / GEORGIA, ) et al., ) ) Plaintiffs, ) CIVIL ACTION NO. v. ) 4:05-CV-201-HLM ) MS. EVON BILLUPS, Superintendent ) of Elections for the Board of Elections ) and Voter Registration for Floyd ) County and the City of Rome, Georgia, ) et al., ) ) Defendants. ) REPLY BRIEF IN SUPPORT OF STATE DEFENDANTS MOTION TO DISMISS SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF IN PART PURSUANT TO FED. R. CIV. P. 12(b)(6) Plaintiffs have conceded that this Court lacks jurisdiction over their state law claims (Pls. Resp. in Opp n to State Defs. Mot. to Dismiss at 1, 5); the Court, therefore, should dismiss Count One of Plaintiffs Second Amended Complaint as barred by the Eleventh Amendment. 1 Accordingly, the only issue remaining for resolution in this Motion to Dismiss is whether Plaintiffs claims against the 2005 1 As explained in detail in State Defendants Response in Opposition to Plaintiffs Renewed Motion to Certify [docket no. 97], State Defendants oppose Plaintiffs request to have this Court certify the question of whether the 2005 and 2006 Photo ID Acts violate the Georgia Constitution to the Georgia Supreme Court. 1
Case 4:05-cv-00201-HLM Document 98 Filed 06/08/2006 Page 2 of 8 amendment to O.C.G.A. 21-2-417 (Act No. 53, Section 59) ( the 2005 Photo ID Act ) in Counts Two, Three, Five, and Six are moot by virtue of the enactment and preclearance of the 2006 amendments to O.C.G.A. 21-2-417 and addition of a new provision in O.C.G.A. 21-2-417.1 (Act No. 432) ( the 2006 Photo ID Act ). Eleventh Circuit law is clear that when a statute challenged by a plaintiff has been replaced by a new statute, the original action generally is moot. See Coral Springs Street Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1329 (11th Cir. 2004) ( Generally, a challenge to the constitutionality of a statute is mooted by repeal of the statute. ). In this case, the portions of the 2005 statute challenged by Plaintiffs have been completely replaced with two new statutes as enacted by the 2006 Photo ID Act. As such, Plaintiffs claims based on the 2005 statute are moot under the general rule. In their Response in Opposition to State Defendants Motion to Dismiss, however, Plaintiffs attempt to invoke an exception to this general rule, which applies only if there is a substantial likelihood that the challenged statutory language will be reenacted. Coral Springs, 371 F.3d at 1329. That exception does not apply in this case. In several cases, the Eleventh Circuit has considered the exception and held (consistent with other federal circuit courts of appeal) that the repeal of a 2
Case 4:05-cv-00201-HLM Document 98 Filed 06/08/2006 Page 3 of 8 challenged ordinance will moot a plaintiff s request for injunctive relief in the absence of some evidence that the ordinance has been or is reasonably likely to be reenacted after dismissal of the suit. Coral Springs, 371 F.3d at 1331 n.9, 1333 (reversing and remanding to the district court with instructions to dismiss for lack of subject matter jurisdiction because there was absolutely no indication... that the City repealed its old Sign Code in bad faith, intending to reinstate it later, just as soon as the threat of a lawsuit had abated ); see Christian Coalition of Ala. v. Cole, 355 F.3d 1288, 1292-93) (11th Cir. 2004) (affirming dismissal because the case was moot, as there is no reasonable expectation that the wrong will be repeated ); Revolution Outdoor v. City of Casselberry, 234 F.3d 711 (11th Cir. 2000) (unpublished opinion) (affirming summary judgment on mootness grounds because there was no indication from the record that the City has any intention of reenacting the challenged portions of the repealed sign ordinance) (quoted in Coral Springs, 371 F.3d at 1330 n.8); Jews for Jesus v. Hillsborough County Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998) (dismissing a constitutional challenge as moot precisely because there was no reasonable expectation that the challenge [would] resume after the lawsuit [was] dismissed ). C.f. Nat l Adver. Co. v. City of Ft. Lauderdale, 934 F.2d 283 (11th Cir. 1991) (reversing and remanding the district court s dismissal on mootness grounds because there was a 3
Case 4:05-cv-00201-HLM Document 98 Filed 06/08/2006 Page 4 of 8 chance that the challenged sign ordinance would be reenacted if the city managed to defeat jurisdiction in the lawsuit). In this case, like in Jews for Jesus, Christian Coalition, and Revolution, and unlike in the National case, there is absolutely no evidence that the General Assembly would reenact the 2005 Photo ID Act. The 2006 Photo ID Act, for example, does not contain a savings clause which would automatically reenact the 2005 Photo ID Act in the event that the statutes amended and added by the 2006 Photo ID Act is declared unconstitutional and enjoined by this Court. Neither has there been any other expression of the General Assembly s intent to the contrary, and [t]he determination whether discontinuance moots a case is apt to be affected by the distinction between public and private defendants. Courts are more apt to trust public officials than private defendants to desist from future violations. See 13A Wright et al., Federal Practice and Procedure 3533.7 (2d ed. 2004). Because no support exists for the notion that the 2005 Photo ID Act will be reenacted, Plaintiffs claims against that Act are moot and should be dismissed. Moreover, there is no merit to Plaintiffs argument that a ruling by this Court that the 2006 Act is unconstitutional, null and void would make it possible that the portion of the 2006 Act that repealed the 2005 Act would also become null 4
Case 4:05-cv-00201-HLM Document 98 Filed 06/08/2006 Page 5 of 8 and void. (Pls. Resp. in Opp n to State Defs. Mot. to Dismiss at 2.) Only O.C.G.A. 21-2-417, as amended by the 2006 Photo ID Act, and new O.C.G.A. 21-2-417.1, added by the 2006 Photo ID Act, are in effect and the subjects of this constitutional challenge by Plaintiffs. Even assuming arguendo that this Court declares O.C.G.A. 21-2-417 and -417.1, as amended and added by the 2006 Photo ID Act, unconstitutional and permanently enjoins their enforcement, that would not, as Plaintiffs suggest without any citation of authority, automatically revive the statute that was amended by the 2005 Photo ID Act. See Warren v. Suttles, 190 Ga. 311, 314 (1940) (explaining that, when a repealing statute is itself repealed, the first statute is not revived in a case where the statute repeals absolutely a prior existing law, and substitutes for it another and more comprehensive scheme of legislation, which undertakes to deal with the whole subject to which the prior statute relates ). The 2005 Photo ID Act was repealed by the 2006 Photo ID Act. The fact the 2006 Photo ID Act reenacted some of the provisions contained in the 2005 Photo ID Act, and added others, does not mean the 2005 Act continues to exist in any manner. State Defendants should not be required to defend the constitutionality of a repealed statute that cannot be enforced. That pointless effort is precisely what the mootness doctrine is designed to prevent. 5
Case 4:05-cv-00201-HLM Document 98 Filed 06/08/2006 Page 6 of 8 Accordingly, for the above reasons, Defendants Cathy Cox and the State Election Board respectfully urge this Court to dismiss Count One of Plaintiffs Second Amended Complaint as barred by the Eleventh Amendment, and to dismiss Count Three and those portions of Counts Two, Five, and Six of the Second Amended Complaint which challenge the now-amended 2005 statute as moot. This 8th day of June, 2006. Respectfully submitted, THURBERT E. BAKER Attorney General Georgia Bar No. 033887 Department of Law DENNIS R. DUNN State of Georgia Deputy Attorney General 40 Capitol Square, S.W. Georgia Bar No. 234098 Atlanta, GA 30334-1300 Telephone: 404/656-7298 STEFAN E. RITTER Facsimile: 404/657-9932 Senior Assistant Attorney General dennis.dunn@law.state.ga.us Georgia Bar No. 606950 Troutman Sanders LLP /s/ Mark H. Cohen 5200 Bank of America Plaza MARK H. COHEN 600 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30308 Georgia Bar No. 174567 Telephone: 404/885-3597 Facsimile: 404/962-6753 mark.cohen@troutmansanders.com (signatures continued on following page) 6
Case 4:05-cv-00201-HLM Document 98 Filed 06/08/2006 Page 7 of 8 Strickland Brockington Lewis LLP /s/ Anne W. Lewis Midtown Proscenium, Suite 2000 ANNE W. LEWIS 1170 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30309 Georgia Bar No. 737490 Telephone: 678/347-2200 (signed with express permission by Mark H. Cohen) Facsimile: 678-347-2210 awl@sbllaw.net Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font, in compliance with Local Rule. 5.1C. /s/ Mark H. Cohen MARK H. COHEN 7
Case 4:05-cv-00201-HLM Document 98 Filed 06/08/2006 Page 8 of 8 CERTIFICATE OF SERVICE The undersigned hereby certifies that the within and foregoing Reply Brief in Support of State Defendants Motion to Dismiss Second Amended Complaint for Declaratory and Injunctive Relief in Part Pursuant to Fed. R. Civ. P. 12(b)(6) was electronically filed with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to counsel of record for Plaintiffs. The undersigned also certifies that the within and foregoing document was served by email to the following non-cm/ecf participants: H. Boyd Pettit, III hboyd@innerx.net Peter Olson polson@jnlaw.com This 8th day of June, 2006. /s/ Mark H. Cohen MARK H. COHEN 8