Ala. Educ. Ass'n v. Bentley

• Decision Date: 07 January 2013
• Docket Number: Civil Action No. CV-11-S-761-NE
• Parties: ALABAMA EDUCATION ASSOCIATION; et al., Plaintiffs, v. ROBERT BENTLEY, in his official capacity as Governor of the State of Alabama and President of the State School Board; et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

ALABAMA EDUCATION ASSOCIATION; et al., Plaintiffs,

v. ROBERT BENTLEY, in his official capacity as Governor of theState of Alabama and President of the State School Board; et al., Defendants.

Civil Action No. CV-11-S-761-NE

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

DONE: January 3, 2013

FILED: January 7, 2013

MEMORANDUM OPINION AND ORDER

This action is before the court on motions to quash subpoenas duces tecum issued by plaintiffs to four non-parties: i.e., Alabama Senate President Pro Tempore Del Marsh; Speaker of the Alabama House of Representatives Mike Hubbard; former Alabama Governor Robert R. ("Bob") Riley; and, current Alabama Governor Robert J. Bentley, who was a defendant until August 22, 2012, when all claims against him were dismissed.¹ Understanding how the documents sought by the contested subpoenas relate to claims asserted by plaintiffs requires a review of the case's procedural history.

I. PROCEDURAL HISTORY

The Alabama Education Association ("AEA"), Alabama Voice of Teachers for Education ("A-VOTE"), and six individuals affiliated with those organizations commenced this action in February of 2011.² They challenged the constitutionalityof Alabama Act No. 2010-761 ("Act No. 761"), an amendment of preexisting law that was enacted by the Alabama Legislature on December 15, 2010, and signed into law by Governor Riley on December 20, 2010.³

A. Preexisting Alabama Law

Prior to the enactment of Act No. 761, Alabama Code § 16-22-6 directed city and county boards of education, as well as some post-secondary institutions, to adopt procedures to allow employees to deduct from their paychecks contributions for, among other things, "membership dues" and "voluntary contributions." The pertinent portion of the statute as it then existed provided that:

Each local board of education and certain postsecondary institutions shall adopt policies or regulations which will provide for deductions from salaries of its employees or groups of employees whenever a request is presented to the board or postsecondary institution by the employees or groups. The deductions shall be made from salaries earned in at least nine different pay periods and shall be remitted to the appropriate company, association, or organization as specified by the employees within 10 days following each deduction. The deductions may be made for, but [are] not limited to, savings plans, tax sheltered annuities, the Public Employees' Individual Retirement Account Fund, membership dues, voluntary contributions, and group insurance premiums. Deductions for membership dues and voluntary contributions shall be made based upon membership lists and forms provided by the employees' organization. Such lists are to be corrected, updated, and returned to the employees' designated organization(s) not later than November 10 of each school year. . . .

Ala. Code § 16-22-6(a) (1975) (2001 Replacement Vol.) (emphasis and alterationsupplied). Those statutory requirements had been a part of the corpus of Alabama law since at least 1973. Relatedly, Alabama Code § 36-1-4.3 provided that:

(a) The state Comptroller shall adopt statewide policies which provide for deductions from the salaries of state employees or groups of state employees whenever a request is presented to the state Comptroller by a group of participating state employees equal in number to at least 200 provided, however, that deductions being made as of April 23, 1985, shall continue to be made. The deductions shall be made at least monthly and shall be remitted to the appropriate company, association, or organization as specified by the employees. The deductions may be made for membership dues, and voluntary contributions, and insurance premiums. Any deduction provided under the provisions of this section may be terminated upon two months' notice in writing by a state employee to the appropriate company, association, or organization and to the appropriate payroll clerk or other appropriate officials as specified by the state Comptroller.

(b) The state Comptroller may, at his discretion, collect from the deductions withheld a cost of administration fee not to exceed one percent of the total deduction collected.

Ala. Code § 36-1-4.3 (1975) (2001 Replacement Vol.) (emphasis supplied). Again, the basis for those statutory requirements had been a part of the corpus of Alabama law since at least 1985.

Both of the foregoing statutes were tempered by Alabama Code § 17-17-5, which is located in a chapter addressing "Election Offenses," and which read as follows prior to the enactment of Act. No. 761:

No person in the employment of the State of Alabama, a county, or a city whether classified or unclassified, shall use any state, county,or city funds, property or time, for any political activities. Any person who is in the employment of the State of Alabama, a county, or a city shall be on approved leave to engage in political action or the person shall be on personal time before or after work and on holidays. It shall be unlawful for any officer or employee to solicit any type of political campaign contributions from other employees who work for the officer or employee in a subordinate capacity. It shall also be unlawful for any officer or employee to coerce or attempt to coerce any subordinate employee to work in any capacity in any political campaign or cause. Any person who violates this section shall be guilty of the crime of trading in public office and upon conviction thereof, shall be fined or sentenced, or both, as provided by Section 13A-10-63.

Ala. Code § 17-17-5 (1975) (2007 Replacement Vol.).⁴

B. Alabama Act No. 761

Act No. 761 specifically addressed Alabama Code § 17-17-5, and amended the language of that provision in the following manner:

ENROLLED, An Act,

To amend Section 17-17-5, Code of Alabama 1975, relating to prohibited political activities by state, county, and city employees; to further specifically prohibit employees of the state, a county, a city, a local school board, or other governmental agency from using any agency funds, property, or time arranging for payments by salary deduction, or otherwise, to a political action committee or dues for membership organizations that use funds for political activities.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Section 17-17-5, Code of Alabama 1975, is amended to read as follows:

"§17-17-5.

"(a) No person in the employment of the State of Alabama, a county, a city, a local school board, or any other governmental agency, whether classified or unclassified, shall use any state, county, city, local school board, or other governmental agency funds, property, or time, for any political activities.

"(b) No person in the employment of the State of Alabama, a county, a city, a local school board, or any other governmental agency may arrange by salary deduction or otherwise for any payments to a political action committee or arrange by salary deduction or otherwise for any payments for the dues of any person so employed to a membership organization which uses any portion of the dues for political activity. For purposes of this subsection (b) only, political activity shallbe limited to all of the following:

"(1) Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.

"(2) Engaging in or paying for public opinion polling.

"(3) Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.

"(4) Engaging in or paying for any type of political advertising in any medium.

"(5) Phone calling for any political purpose.

"(6) Distributing political literature of any type.

"(7) Providing any type of in-kind help or support to or for a political candidate.

"Any organization that requests the State of Alabama, a county, a city, a local school board, or any other governmental agency to arrange by salary deduction or otherwise for the collection of membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall certify to the appropriate governmental entity that none of the membership dues will be used for political activity. Thereafter, at the conclusion of each calendar year, each organization that has arranged for the collection of its membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall provide the appropriate governmental entity a detailed breakdown of the expenditure of the membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency collected by the governmental entity. Any organization that fails to provide the required certifications, that reportsany expenditures for political activity or that files false information about political activity in any of its reports shall be permanently barred from arranging for the collection of its membership dues by any governmental entity. The Examiners of Public Accounts shall annually review a sample of at least ten percent of the certifications filed with each governmental entity and report its findings to the appropriate governmental entity.

"(c) Any person who is in the employment of the State of Alabama, a county, a city, a local school board, the State Board of Education or any other governmental agency, shall be on approved leave to engage in political action or the person shall be on personal time before or after work and on holidays. It shall be unlawful for any officer or employee to solicit any type of political campaign contributions from other employees who work for the officer or employee in a subordinate capacity. It shall also be unlawful for any officer or employee to coerce or attempt to coerce any subordinate employee to work in any capacity in any

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