Chapman v. Gooden

• Citation: 974 So.2d 972
• Decision Date: 01 June 2007
• Docket Number: 1051712.
• Parties: Beth CHAPMAN, in her official capacity as Secretary of State of Alabama, et al. v. Richard GOODEN and Angela Thomas, on behalf of themselves and all others similarly situated.
• Court: Alabama Supreme Court

974 So.2d 972

Beth CHAPMAN, in her official capacity as Secretary of State of Alabama, et al. v. Richard GOODEN and Angela Thomas, on behalf of themselves and all others similarly situated.

1051712.

Supreme Court of Alabama.

June 1, 2007.

Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., James W. Davis, Margaret L. Fleming, and Misty S. Fairbanks, asst. attys. gen., for appellants.

Edward Still of Edward Still Law Firm, LLC, Birmingham; Theodore M. Shaw, director, and Debo P. Adegbile and Ryan P. Haygood, NAACP Legal Defense & Educational Fund, Inc., New York, New York; and Samuel Spital of Holland & Knight, New York, New York, for appellees.

S. Douglas Jones and Anil A. Mujumdar of Whatley Drake & Kallas, LLC, Birmingham; and Deborah Goldberg, Erika Wood, Renée Paradis, and Myrna Pérez of Brennan Center for Justice at New York University School of Law, New York, New York, for amici curiae Rev. Robert M. Alexander, Jr., Rev. Mary Bendall, Rev. Herbert Benson, Rev. Jerry E. Bledsoe, Rev. James Francis Brooks, Rev. Douglas Caddell, Rev. Reginald W. Calvert, Rev. Robert L. Cook, Rev. Solomon Crenshaw, Rev. J.W. Croom, Jr., Mr. Scott Douglas, Rev. G. Thomas Duley, Rev. James L. Evans, Rev. Wilson Fallin, Jr., Rev. K.C. Fink, Rev. Edgar Fisher, Rev. Thomas Earl Gilmore, Sr., Rev. Willie J. Gilmore, Jr., Rev. Perry Goins, Rev. Chris Hamlin, Rev. Tommy Hagler, Rev. P. Banneker Hatcherson, Rev. Dr. Lawton Higgs, Rev. Albert L. Hyche, Immanuel Presbyterian Church, Rev. Edward O. Jackson, Dr. Stewart Jackson, Rev. David C. Jamison, Rev. Alfonza January, Sr., Rev. Fred Jemison, Rev. J. Stephen Jones, Rev. W.J. Luster, Rev. Perry Macon, Rev. L.P. McAdory, Mount Zion Baptist Church, Rev. Elizabeth O'Neill, Rev. Rick Owen, Rev. William Perry, Jr., Rev. Marion Russell, Sr., Saint John Missionary Baptist Church, Rev. Patrick Sellers, Rev. Walter Sims, Rev. Steve Small, Jr., Rev. Andra D. Sparks, The Ordinary People Society (T.O.P.S.), Pastor Vallie Thomas III, Rev. Charles W. Thomspon, Rev. Morrell Todd, Rev. S. William, Rev. Carlos D. Williams, Rev. Clasco P. Williams, Rev. H.L.

Williams, Rev. Timothy D. Williams, and Rev. Gregory D. Woods.

WOODALL, Justice.

Secretary of State Beth Chapman,¹ Jefferson County Registrar Nell Hunter, and the State of Alabama (collectively "the defendants") appeal from a judgment in favor of Richard Gooden and Angela Thomas, as class representatives in a putative class action involving the voting rights of convicted felons. We reverse the judgment in part and dismiss the appeal in part.

In June 1996, the citizens of Alabama ratified Amendment No. 579 to Ala. Const. 1901, § 177. As amended, § 177 provides, in pertinent part:

"(a) Every citizen of the United States who has attained the age of eighteen years and has resided in this state and in a county thereof for the time provided by law, if registered as provided by law, shall have the right to vote in the county of his or her residence. The Legislature may prescribe reasonable and nondiscriminatory requirements as prerequisites to registration for voting. The Legislature shall, by statute, prescribe a procedure by which eligible citizens can register to vote.

"(b) No person convicted of a felony involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until restoration of civil and political rights or removal of disability."

(Emphasis added.)

On March 18, 2005, Attorney General Troy King issued an opinion in response to questions posed to him by William C. Segrest, then executive director of the Board of Pardons and Paroles (Op. Att'y Gen. 2005-092). Those questions, among others, in the order in which we think they apply here, were: (1) "If an individual has been convicted solely of [a felony not involving moral turpitude], does he or she remain eligible to vote?" (2) "Is an individual eligible under section 15-22-36.1 of the Code of Alabama to apply to the Pardons and Paroles Board for certification for eligibility to vote if he or she has not committed a crime involving moral turpitude?" and (3) "What specific felonies do not include moral turpitude?"

The opinion answered question one in the affirmative and question two in the negative. With regard to question two, it said: "If a person has been convicted of a felony that does not involve moral turpitude, that person remains eligible to vote and is therefore ineligible to apply for a Certificate of Eligibility to Register to vote."

With regard to question three, the opinion stated, in pertinent part:

"Although this Office cannot provide an exhaustive list of every felony involving moral turpitude, we can provide a list of the crimes that Alabama courts have determined to be crimes involving moral turpitude. It is important to note that the following crimes will only prohibit a person from voting if that person has been convicted of a degree of one of these crimes that is considered a felony. The Alabama Supreme [C]ourt stated that murder, rape, burglary, robbery, and income tax evasion have all been found to be crimes involving moral turpitude. Ex parte McIntosh, 443 So.2d 1283 (Ala.1983) (citations omitted).

"In addition, forgery (Moton v. State, 13 Ala.App. 43, 69 So. 235 (1915)), conspiracy to commit fraud ([G.M. Mosley Contractors, Inc. v.] Phillips, 487 So.2d [876,] 879 [(Ala.1986)]), aggravated assault (Johnson v. State, 629 So.2d 708 (Ala.Crim.App.1993)), possession of marijuana for resale (McIntosh, 443 So.2d at 1286), sale of marijuana (Gholston v. State, 338 So.2d 454 (Ala.Crim.App. 1976)), manslaughter (Johnson v. State, 357 So.2d 162 (Ala.Crim.App.1978)), theft (Johnson v. State, 292 Ala.208, 291 So.2d 336 (Ala.1974)), transporting stolen vehicles across state lines (Matthews v. State, 286 So.2d 91 (Ala.Crim.App.1973)), unauthorized sale of a controlled substance (Ex parte Bankhead, 585 So.2d 112 (Ala.1991)), and bigamy (Lawson v. State, 33 So.2d 388 (Ala.App.1948)) have all been held to be crimes involving moral turpitude.

"In addition, section 15-22-36.1 of the Code of Alabama provides the following list of felonies involving moral turpitude that will preclude an individual from applying to have his or her civil and political rights restored:

"`A person who has lost his or her right to vote by reason of conviction in a state or federal court for any of the following will not be eligible to apply for a Certificate of Eligibility to Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason.'

"Ala.Code § 15-22-36.1(g) (Supp.2004) (emphasis added).

"Alabama courts have also discussed crimes that do not involve moral turpitude. In McIntosh, the Supreme Court stated that both assault and doing business without a license are not crimes involving moral turpitude. McIntosh, 443 So.2d at 1286. In addition, violation of liquor laws (Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967)), aiding prisoner to escape (now listed in the Alabama Code as permitting or facilitating escape) (McGovern v. State, 44 Ala.App. 197, 205 So.2d 247 (1967)), mere possession of marijuana (Neary v. State, 469 So.2d 1321 (Ala.Crim.App.1985)), and driving under the influence (Finley v. State, 661 So.2d 762 (Ala.Crim.App. 1995)) have all been held to be crimes that do not involve moral turpitude."

Op. Att'y Gen. 2005-092, pp. 3-4. On May 27, 2005, then Secretary of State Nancy Worley notified Hunter and every other voter registrar in the State that she was seeking advice from the attorney general regarding which felonies were disfranchising.

On September 29, 2005, Gooden filed a complaint in the Jefferson Circuit Court styled "complaint for declaratory judgment, temporary restraining order, mandatory injunction, and writ of mandamus." Naming Nell Hunter and then Secretary of State Nancy Worley as defendants, Gooden alleged that he "was registered to vote from the mid-1960s until 2000, when he was convicted of felony driving under the influence of alcohol (DUI), and [was] told by the State of Alabama that his voting rights were revoked." More specifically, the complaint alleged, in pertinent part:

"11. The Board of Pardons and Paroles ['the Board'] issued a press release ... upon information and belief, to effectuate the intent and substance of the attorney general's opinion.... The press release noted that ... the Board ... `discovered that many eligible voters [were] unaware' that they did not need a `certificate from this agency in order to register to vote.' `Under the current law only felonies involving moral turpitude disqualify a person from voting. Convictions for other felonies do not disqualify a person from voting. If individuals who are already eligible to vote do not ask us for certificates, we can process the other applications more promptly.' While the press release did not provide an exhaustive list of felonies involving moral turpitude, it noted that `felony driving under the influence' and `felony possession of drugs' are offenses that do not involve moral turpitude.

"12. Notwithstanding the clear direction provided by the attorney general's opinion, and the press release that was issued by the [Board], local registrars represented to agents of [Gooden's] counsel that registrars in ... twenty counties ... were directed by the secretary of state not to register people with felony convictions — whether or not the felony involved moral turpitude — without a certificate of eligibility.

"13. On September 21, 2005, [Gooden] attempted to register with [Hunter], but was told that he was `not eligible' to...