803 F.3d 1298 (11th Cir. 2015), 13-10281, In re Hubbard

Docket Nº:13-10281, 13-10283, 13-10382
Citation:803 F.3d 1298, 25 Fla.L.Weekly Fed. C 1690
Opinion Judge:ED CARNES, Chief Judge
Party Name:In re: MIKE HUBBARD, DEL MARSH, BOB RILEY, Petitioners. v. ROBERT BENTLEY, in his official capacity as Governor of the State of Alabama and President of the State School Board, Defendant-Appellant, ALABAMA EDUCATION ASSOCIATION, an Alabama non-profit corporation, A-VOTE, an Alabama political committee, PAM HILL, JEFF BREECE, CHASSITY SMITH, et al.,
Attorney:For In re: MIKE HUBBARD, DEL MARSH, Petitioners (13-10281): William Glenn Parker, Jr., Andrew Lynn Brasher, James W. Davis, Margaret L. Fleming, Luther J. Strange, III, Alabama Attorney General's Office, MONTGOMERY, AL. For BOB RILEY, Petitioner (13-10281): Matthew Howard Lembke, Michael R. Penni...
Judge Panel:Before ED CARNES, Chief Judge, TJOFLAT, Circuit Judge, and MARRA,[*] District Judge.
Case Date:October 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1298

803 F.3d 1298 (11th Cir. 2015)

25 Fla.L.Weekly Fed. C 1690

In re: MIKE HUBBARD, DEL MARSH, BOB RILEY, Petitioners.

ALABAMA EDUCATION ASSOCIATION, an Alabama non-profit corporation, A-VOTE, an Alabama political committee, PAM HILL, JEFF BREECE, CHASSITY SMITH, et al., Plaintiffs-Appellees,

ASEA, et al., Intervenor Plaintiffs-Appellees,

v.

ROBERT BENTLEY, in his official capacity as Governor of the State of Alabama and President of the State School Board, Defendant-Appellant,

JOSEPH B. MORTON, in his official capacity as Superintendent of Education, et al., Defendants, DEL MARSH, MIKE HUBBARD, BOB RILEY, Movants-Appellants.

In re: ROBERT BENTLEY, Petitioner

Nos. 13-10281, 13-10283, 13-10382

United States Court of Appeals, Eleventh Circuit

October 14, 2015

On Petitions for Writ of Mandamus and Appeals from the United States District Court for the Northern District of Alabama. D.C. Docket No. 5:11-cv-00761-CLS.

For In re: MIKE HUBBARD, DEL MARSH, Petitioners (13-10281): William Glenn Parker, Jr., Andrew Lynn Brasher, James W. Davis, Margaret L. Fleming, Luther J. Strange, III, Alabama Attorney General's Office, MONTGOMERY, AL.

For BOB RILEY, Petitioner (13-10281): Matthew Howard Lembke, Michael R. Pennington, Bradley Arant Boult Cummings, LLP, BIRMINGHAM, AL.

For A-VOTE, ALABAMA EDUCATION ASSOCIATION, PAM HILL, JEFF BREECE, CHASSITY SMITH, Mandamus Respondents (13-10281): Edward Still, Edward Still Law Firm, LLC, BIRMINGHAM, AL; J. Cecil Gardner, The Gardner Firm, PC, MOBILE, AL; Sam Heldman, The Gardner Firm, WASHINGTON, DC.

For SERVICE, Mandamus Respondent (13-10281): Algert Swanson Agricola, Jr., Ryals Donaldson & Agricola, PC, MONTGOMERY, AL; Andrew Clay Allen, John Mark White, White Arnold Dowd, PC, BIRMINGHAM, AL; J. R. Brooks, Taylor P. Brooks, William W. Sanderson, Jr., Lanier Ford Shaver & Payne, PC, HUNTSVILLE, AL; Julian D. Butler, Sirote & Permutt, PC, HUNTSVILLE, AL; Annary Cheatham, Cheatham & Associates, PLLC, HUNTSVILLE, AL; Joseph C. Espy, III, James Flynn Mozingo, Melton Espy & Williams, PC, MONTGOMERY, AL; Matthew David Fridy, Susan Elaine McPherson, Wallace Jordan Ratliff & Brandt, LLC, BIRMINGHAM, AL; Philip A. Hostak, Alice O'Brien, National Education Association, WASHINGTON, DC; Rebekah Keith McKinney, Herman Austin Watson, Jr., Watson McKinney, LLP, HUNTSVILLE, AL; Robert D. Segall, Copeland Franco Screws & Gill, PA, MONTGOMERY, AL; Gregory B. Stein, Stein & Pilcher, LLC, FAIRHOPE, AL; Theron Stokes, Alabama Education Association, MONTGOMERY, AL.

For CATHY MCNEAL, DOROTHY J. STRICKLAND, RONALD SLAUGHTER, Mandamus Respondents (13-10281): J. Cecil Gardner, The Gardner Firm, PC, MOBILE, AL; Edward Still, Edward Still Law Firm, LLC, BIRMINGHAM, AL.

For ROBERT BENTLEY, Mandamus Respondent (13-10281): Albert Linch Jordan, Wallace Jordan Ratliff & Brandt, LLC, BIRMINGHAM, AL.

For ALABAMA EDUCATION ASSOCIATION, an Alabama non-profit corporation, A-VOTE, CHASSITY SMITH, PAM HILL, JEFF BREECE, Plaintiffs - Appellees (13-10283): Edward Still, Edward Still Law Firm, BIRMINGHAM, AL; Annary Cheatham, Cheatham & Associates, PLLC, HUNTSVILLE, AL; J. Cecil Gardner, The Gardner Firm, PC, MOBILE, AL; Sam Heldman, The Gardner Firm, WASHINGTON, DC; Philip A. Hostak, Alice O'Brien, National Education Association, WASHINGTON, DC; Rebekah Keith McKinney, Herman Austin Watson, Jr., Watson McKinney, LLP, HUNTSVILLE, AL; Robert D. Segall, Copeland Franco Screws & Gill, PA, MONTGOMERY, AL; Theron Stokes, Alabama Education Association, MONTGOMERY, AL.

For ROBERT BENTLEY, in his official capacity as Governor of the State of Alabama and President of the State School Board, Defendant - Appellant (13-10283): Albert Linch Jordan, Susan Elaine McPherson, Wallace Jordan Ratliff & Brandt, LLC, BIRMINGHAM, AL; Algert Swanson Agricola, Jr., Ryals Donaldson & Agricola, PC, MONTGOMERY, AL.

For MIKE HUBBARD, DEL MARSH, Interested Party - Appellants (13-10283): William Glenn Parker, Jr., Andrew Lynn Brasher, James W. Davis, Margaret L. Fleming, Alabama Attorney General's Office, MONTGOMERY, AL.

For BOB RILEY, Interested Party - Appellant (13-10283): Matthew Howard Lembke, Michael R. Pennington, Bradley Arant Boult Cummings, LLP, BIRMINGHAM, AL.

For STATE OF GEORGIA, Amicus Curiae (13-10283): Stefan Ernst Ritter, Attorney General's Office, ATLANTA, GA.

For NATIONAL CONFERENCE OF STATE LEGISLATURES (13-10283): Jess R. Nix, Kenneth D. Sansom, Spotswood Sansom & Sansbury, LLC, BIRMINGHAM, AL; Steven F. Huefner, University/Moritz College of Law, COLUMBUS, OH.

For In re: ROBERT BENTLEY, Petitioner (13-10382): Albert Linch Jordan, Susan Elaine McPherson, Wallace Jordan Ratliff & Brandt, LLC, BIRMINGHAM, AL; Algert Swanson Agricola, Jr., Ryals Donaldson & Agricola, PC, MONTGOMERY, AL.

For ALABAMA EDUCATION ASSOCIATION, A-VOTE, JEFF BREECE, CHASSITY SMITH, PAM HILL, Mandamus Respondents (13-10382): Sam Heldman, The Gardner Firm, WASHINGTON, DC; Edward Still, Edward Still Law Firm, LLC, BIRMINGHAM, AL.

For SERVICE, Mandamus Respondents (13-10382): Andrew Clay Allen, John Mark White, White Arnold Dowd, PC, BIRMINGHAM, AL; J. R. Brooks, Taylor P. Brooks, William W. Sanderson, Jr., Lanier Ford Shaver & Payne, PC, HUNTSVILLE, AL; Julian D. Butler, Sirote & Permutt, PC, HUNTSVILLE, AL; Annary Cheatham, Cheatham & Associates, PLLC, HUNTSVILLE, AL; James W. Davis, Margaret L. Fleming, William Glenn Parker, Jr., Alabama Attorney General's Office, MONTGOMERY, AL; Joseph C. Espy, III, James Flynn Mozingo, Melton Espy & Williams, PC, MONTGOMERY, AL; Matthew David Fridy, Wallace Jordan Ratliff & Brandt, LLC, BIRMINGHAM, AL; J. Cecil Gardner, The Gardner Firm, PC, MOBILE, AL; Sam Heldman, The Gardner Firm, WASHINGTON, DC; Philip A. Hostak, Alice O'Brien, National Education Association, Office of General Counsel, WASHINGTON, DC; Rebekah Keith McKinney, Herman Austin Watson, Jr., Watson McKinney, LLP, HUNTSVILLE, AL; Robert D. Segall, Copeland Franco Screws & Gill, PA, MONTGOMERY, AL; Theron Stokes, Alabama Education Association, MONTGOMERY, AL.

For CATHEY MCNEAL, DOROTHY J. STRICKLAND, RONALD SLAUGHTER, Mandamus Respondents (13-10382): Edward Still, Edward Still Law Firm, LLC, BIRMINGHAM, AL.

Before ED CARNES, Chief Judge, TJOFLAT, Circuit Judge, and MARRA,[*] District Judge.

OPINION

ED CARNES, Chief Judge:

In February 2011, the Alabama Education Association (AEA), a public-sector union, and related parties filed a 42 U.S.C. § 1983 lawsuit challenging the constitutionality of Alabama Act No. 2010-761 (codified at Ala. Code § 17-17-5) (Act 761). Act 761 " prohibit[s] a state or local government employee from arranging by payroll deduction or otherwise the payment of any contribution to an organization that uses any portion of those contributions for political activity." Ala. Educ. Ass'n v. State Superintendent of Educ., 665 F.3d 1234, 1235 (11th Cir. 2011) (AEA I) (quotation marks omitted). That prohibition alone, we have previously decided in another appeal involving this same lawsuit, is not a violation of the First Amendment. Id. at 1237; see Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 355, 129 S.Ct. 1093, 1096, 172 L.Ed.2d 770 (2009). And we have also already decided that Act 761, as interpreted by the Alabama Supreme Court, is not unconstitutionally overbroad or impermissibly vague. Ala. Educ. Ass'n v. State Superintendent of Educ., 746 F.3d 1135, 1139-40 (11th Cir. 2014) (AEA II).

This appeal stems from another claim that AEA brought against Act 761, which is that it violates the First Amendment rights of AEA and its members because the subjective motivations of the lawmakers in passing the Act were to retaliate against AEA for its political speech on education policy. The specific issues before us arise from AEA's pursuit of that claim through subpoenas seeking files of the Alabama Senate President Pro Tempore, the Speaker of the Alabama House of Representatives, the current Governor of Alabama, and the former governor. (For convenience, we will refer to those four collectively as " the four lawmakers" even though two of them are or were governors.)

Before us now are the lawmakers' petitions for writs of mandamus and their appeals, all challenging the district court's refusal to quash AEA's subpoenas. We have two questions to answer: Do we have jurisdiction to hear the appeals? And, if so, did the district court abuse its discretion in refusing to quash AEA's subpoenas? Our answers are yes, and yes.

I. Background and Procedural History

For several decades Alabama law facilitated public-sector unions' collection of membership dues by authorizing the use of government resources to deduct those dues from the paychecks of state and local government employees who permitted it. See, e.g., Ala. Code § 16-22-6(a); id. § 36-1-4.3. Under state law at the time there was no restriction on the purpose for which those withheld membership dues could be used by the unions. See id.

That changed in the wake of the November 2010 election when the Republicans captured both houses of the Alabama legislature for the first time since Reconstruction. The next month outgoing Republican Governor Bob Riley called a special session of the newly elected legislature to consider an ethics reform package. That special session produced Act 761. See Ala. Code § 17-17-5. Act 761 changed the State's previous payroll deduction policies by prohibiting state and local public-sector employees from arranging, " by salary deduction or otherwise," for: (1) payments of dues to a membership organization that " uses any portion of the dues for political activity," or (2) payments to a political action committee.1 Id. § 17-17-5(b)(1). As a result, public-sector unions like AEA were...

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