Ala. Educ. Ass'n v. Bentley (In re Hubbard)

• Decision Date: 14 October 2015
• Docket Number: 13–10382.,13–10283,Nos. 13–10281,s. 13–10281
• Citation: 803 F.3d 1298
• Parties: 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

803 F.3d 1298

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.

Oct. 14, 2015.

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William Glenn Parker, Jr., Andrew Lynn Brasher, James W. Davis, Margaret L. Fleming, Luther J. Strange, III, Alabama Attorney General's Office, Montgomery,

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AL, Matthew Howard Lembke, Michael R. Pennington, Bradley Arant Boult Cummings, LLP, Birmingham, AL, for Petitioners Mike Hubbard, Del Marsh, and Bob Riley.

Algert Swanson Agricola, Jr., Albert Linch Jordan, Susan Elaine McPherson, for Petitioner Robert Bentley.

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, Albert 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, Albert Linch Jordan, Wallace Jordan Ratliff & Brandt, LLC, Birmingham, AL, 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, Gregory B. Stein, Stein & Pilcher, LLC, Fairhope, AL, Theron Stokes, Alabama Education Association, Montgomery, AL, for Respondents.

On Petitions for Writ of Mandamus and Appeals from the United States District Court for the Northern District of Alabama.

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. (AEA I), 665 F.3d 1234, 1235 (11th Cir.2011) (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. (AEA II), 746 F.3d 1135, 1139–40 (11th Cir.2014).

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,

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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 forced to choose between using state payroll deduction procedures to collect their membership dues and using their membership dues to fund political activity.²

In an attempt to avoid having to make that choice, AEA filed its § 1983 lawsuit before Act 761 went into effect, challenging the Act as unconstitutional on several grounds. The named plaintiffs are AEA, A–VOTE (the political action committee associated with AEA), and six AEA members. (For brevity's sake, we are referring to them collectively as “AEA.”)

The complaint asserted that Act 761 violated AEA's constitutional rights to due process, equal protection, freedom of speech, and freedom of association. It named as defendants several state government officials in charge of enforcing Act 761, including current Governor Robert Bentley, the Alabama Comptroller, and the Alabama Finance Director. AEA sought a declaratory judgment that the Act was unconstitutional, an injunction barring implementation and enforcement of the Act, as well as attorney's fees and costs.

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The district court granted a preliminary injunction in March 2011 barring enforcement of Act 761. Ala. Educ. Ass'n v. Bentley, 788 F.Supp.2d 1283, 1328 (N.D.Ala.2011). The court did so based on AEA's claim that the Act was vague and overbroad in violation of the First Amendment. Id. at 1310–28. The defendants appealed, and a different panel of this Court (1) narrowed the scope of the injunction to permit enforcement of the Act in a manner consistent with the restriction on payroll deductions that was approved by the Supreme Court in Ysursa , and (2) certified two questions to the Supreme Court of Alabama about the scope of Act 761. AEA I, 665 F.3d at 1237–39.

After the Supreme Court of Alabama answered the certified questions, see Superintendent of Educ. v. Ala. Educ. Ass'n, 144 So.3d 265, 278 (Ala.2013), this Court held that Act 761 was neither overbroad nor void for vagueness, reversed the district court's order granting the preliminary injunction, and remanded the case for further proceedings consistent with its opinion, AEA II, 746 F.3d at 1140. That opinion was issued in February 2014.

Meanwhile, back in April 2012, the district court had entered an order allowing AEA to proceed with discovery on the claims that were not the basis for the preliminary injunction and, as a result, were not involved in the pending appeal.³ In June 2012, the defendants moved to dismiss all of those remaining claims.

That same month, AEA served the subpoenas that led to these appeals. Those subpoenas went to, among others, Governor Bentley, former Governor Bob Riley, Alabama House of Representatives Speaker Mike Hubbard, and Alabama Senate President Pro Tempore Del Marsh. The subpoenas sought production of six categories of documents relating to: the contents and passage of Act 761, any similar proposals to stop payroll deductions and collection of dues for employee organizations, as well as any communications regarding AEA and the other plaintiffs in the lawsuit.⁴ The three who received subpoenas who were not defendants in the lawsuit—

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