Ala. House of Representatives Judiciary Comm. v. Office of the Governor of Ala., 1160579

• Decision Date: 18 April 2017
• Docket Number: 1160579
• Citation: 213 So.3d 579
• Parties: ALABAMA HOUSE OF REPRESENTATIVES JUDICIARY COMMITTEE et al. v. OFFICE OF THE GOVERNOR OF ALABAMA and Governor Robert Bentley
• Court: Alabama Supreme Court

213 So.3d 579

ALABAMA HOUSE OF REPRESENTATIVES JUDICIARY COMMITTEE et al.

v.OFFICE OF THE GOVERNOR OF ALABAMA and Governor Robert Bentley

1160579

Supreme Court of Alabama.

April 18, 2017

Jackson R. Sharman III, Wesley B. Gilchrist, and Rachel M. Lary of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellants.

David B. Byrne, chief legal advisor, William F. Patty, deputy legal advisor, and Jason Paulk, deputy legal advisor, Office of the Governor; and Ross H. Garber and Susan S. Murphy of Shipman & Goodwin, LLP, Washington, D.C., for appellee The Office of the Governor of Alabama and Governor Robert Bentley.

William C. Athanas of Waller Lansden Dortch & Davis, LLP, Birmingham; and H. Lewis Gillis of Means Gillis Law, LLC, Montgomery, for appellee Robert Bentley is his personal capacity.

ORDER

On April 7, 2017, the Alabama House of Representatives Judiciary Committee ("the Judiciary Committee"); Representative Mike Jones, chairman of the Judiciary Committee; Representative Jim Hill, vice chairman of the Judiciary Committee; Representative Marcel Black, ranking minority member of the Judiciary Committee; the remaining members of the Judiciary Committee; and Representative Mac McCutcheon, Speaker of the Alabama House of Representatives, appealed an order of the Montgomery Circuit Court entered in an action filed by the Office of the Governor of Alabama and Governor Robert Bentley temporarily enjoining the Judiciary Committee from conducting hearings with regard to its investigation of two articles of impeachment filed against then Governor Robert Bentley. The appellants, in a status report not contested by the appellees, have notified this Court that on April 10, 2017, Robert Bentley resigned from the office of Governor of Alabama. A review of the record, the briefs, and the parties' status reports establishes that this appeal and the underlying action are now moot.

Therefore, it is ORDERED that this appeal is dismissed and this case remanded to the Montgomery Circuit Court for dismissal of the underlying action.

APPEAL DISMISSED.

Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

Stuart, J., concurs specially.

Murdock, J., recuses himself.

STUART, Justice (concurring specially).

I agree with the majority that the record before us and the status report notifying this Court of Robert Bentley's resignation from the office of Governor of Alabama establishes that this appeal and the underlying action are moot. The issue presented by this appeal and the underlying action, however, warrants addressing.

On April 26, 2016, the Alabama House of Representatives adopted House Rule 79.1, setting out the procedures for impeaching an official pursuant to Art. VII, § 173, Ala. Const. 1901.¹ House Rule 79.1(a) provides that, after the proper filing of articles of impeachment, the articles shall be referred to the House Judiciary Committee to investigate the allegations and to make a recommendation to the Alabama House of Representatives "as to whether cause exists to impeach the official." House Rule 79.1(a)(1) and (2).

On April 28, 2016, 23 members of the House introduced House Resolution 367, proposing two articles of impeachment against then Governor Bentley: Article I alleged that Governor Bentley had "willfully neglected his duty as Governor by failing to faithfully execute the laws of this state and by refusing to perform his constitutional and statutory duties"; Article II alleged that Governor Bentley had "unlawfully misused state property, misappropriated state resources, and consistently acted in violation of law to promote his own personal agenda." Pursuant to House Rule 79.1, the articles of impeachment were referred to the Judiciary Committee.

On June 15, 2016, pursuant to House Rule 79.1(c), the Judiciary Committee adopted "Committee Rules of the House Judiciary Committee for the Impeachment Investigation of Governor Robert Bentley."² On September 27, 2016, the Judiciary Committee adopted "Amended Committee Rules of the House Judiciary Committee for the Impeachment Investigation of Governor Robert Bentley." Pursuant to the Judiciary Committee's amended Rule 13, the Judiciary Committee hired Jack Sharman of Lightfoot, Franklin & White, LLC, to serve as special counsel to the Judiciary Committee and to conduct an impeachment investigation of Governor Bentley.

On April 7, 2017, in anticipation of the issuance of Special Counsel Sharman's investigative report, the Office of the Governor of Alabama and Governor Robert Bentley (hereinafter referred to collectively as "Governor Bentley") filed a complaint in the Montgomery Circuit Court, asking the court to declare that Governor Bentley is entitled to due process in the impeachment proceedings, that the Judiciary Committee had violated Governor Bentley's due-process rights, and that the manner in which the Judiciary Committee had "conducted the impeachment proceedings against Governor Bentley has exceeded the mandate of the House under Art. VII, § 173 and is in violation of the separation-of-powers doctrine." Governor Bentley also moved the circuit court for an order temporarily enjoining and restraining the Judiciary Committee "from further abridging and violating the Governor's constitutional due-process rights and from taking any additional actions that exceed their legitimate impeachment authority in violation of the separation-of-powers doctrine embodied in the Alabama Constitution." Specifically, Governor Bentley argued that the Judiciary Committee:

"a. prosecuted impermissibly vague and ambiguous articles of impeachment against the Governor;

"b. failed to give the Governor sufficient notice of the charges against him;

"c. improperly delegated the impeachment authority reserved for the House of Representatives to an unelected private lawyer;

"d. unlawfully limited the evidence the Governor may present in his own defense;

"e. deprived the Governor of the ability to confront and cross-examine witnesses against him;

"f. failed to adopt evidentiary standards to ensure the reliability of evidence presented to the Committee;

"g. refused to provide the Governor with exculpatory evidence; and

"h. refused to consider legal argument presented by the Governor."

Following a hearing at which both Governor Bentley and the Judiciary Committee presented oral argument, the circuit court issued a temporary restraining order enjoining the Judiciary Committee from holding any hearings with regard to Special Counsel Sharman's investigation of the articles of impeachment, from making any recommendation to the House of Representatives with regard to the impeachment of Governor Bentley, and from conducting any proceedings that did not afford Governor Bentley due process. The circuit court also entered an order scheduling a show-cause hearing for May 15, 2017.

That same day, April 7, 2017, the Alabama House of Representatives Judiciary Committee; Representative Mike Jones, chairman of the Alabama House of Representatives Judiciary Committee; Representative Jim Hill, vice chairman of the Alabama House of Representatives Judiciary Committee; Representative Marcel Black, ranking minority member of the Alabama House of Representatives Judiciary Committee; the remaining members of the Alabama House of Representatives Judiciary Committee (all hereinafter referred to collectively as "the Judiciary Committee"); and Representative Mac McCutcheon, Speaker of the Alabama House of Representatives, appealed the order of the Montgomery Circuit Court temporarily enjoining the Judiciary Committee from conducting hearings with regard to its investigation of the two articles of impeachment against Governor Robert Bentley. On April 8, 2017, this Court, ex mero motu, entered an order staying the circuit court's temporary restraining order and ordering the parties to file briefs pursuant to an expedited schedule set forth in the Court's order.

In its brief to this Court, the Judiciary Committee contends that the circuit court erred by enjoining its proceedings with regard to the articles of impeachment preferred against Governor Bentley because, it says, the matter presented in this case is nonjusticiable, i.e., that the court system—the judicial branch of government—does not have the constitutional authority to exercise jurisdiction over this matter by virtue of the doctrine of separation of powers.

"The Constitution of Alabama expressly adopts the doctrine of separation of powers that is only implicit in the Constitution of the United States. Opinion of the Justices No. 380 , 892 So.2d 332, 334 n. 1 (Ala. 2004). This Court has said that the Alabama Constitution provides that the 'three principal powers of government shall be exercised by separate departments,' and it 'expressly vest[s] the three great powers of government in three separate branches.' Ex parte Jenkins , 723 So.2d 649, 653–54 (Ala. 1998). Section 42, Ala. Const. 1901, provides:

" 'The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.'

"Section 43 provides:

" 'In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.'

" ' "Great care must be exercised by the courts not to usurp the functions of other departments of government. § 43, Constitution 1901. No branch of the government is so responsible for the autonomy of the several governmental units and branches as the judiciary." ' Piggly Wiggly No. 208, Inc. v. Dutton ,

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