Muhammad v. Ford, 1050550.

• Decision Date: 07 December 2007
• Docket Number: 1050550.
• Citation: 986 So.2d 1158
• Parties: Lateefah MUHAMMAD and Leon E. Frazier v. Representative Johnny FORD and David Warren, sheriff of Macon County.
• Court: Alabama Supreme Court

986 So.2d 1158

Lateefah MUHAMMAD and Leon E. Frazier v. Representative Johnny FORD and David Warren, sheriff of Macon County.

1050550.

Supreme Court of Alabama.

December 7, 2007.

Lateefah Muhammad, Tuskegee, for appellant.

Fred D. Gray, Jr., of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee, for appellees.

PER CURIAM.

Lateefah Muhammad and Leon E. Frazier appeal from a judgment dismissing their action against Johnny Ford, in his capacity as a member of the Alabama House of Representatives, and David Warren, sheriff of Macon County.¹ We affirm.

I. Background

During the 2003 regular session of the Alabama Legislature, then Representative Ford sponsored House Bill 660, which proposed an amendment to the Alabama Constitution of 1901 that would provide for the legal operation of bingo games for eleemosynary purposes in Macon County and would grant the Macon County sheriff the authority to promulgate rules and regulations governing the operation of such bingo games in Macon County. House Bill 660 also provided for a referendum on the proposed constitutional amendment pursuant to Amendment No. 555, Ala. Const. 1901 (now § 284.01, Ala. Const. 1901 (Off.Recomp.)). The legislature enacted House Bill 660, which became Act No. 2003-124, Ala. Acts 2003. On November 4, 2003, voters approved the constitutional amendment proposed by Act No. 2003-124 in a referendum, and it became Amendment No. 744 to the Alabama Constitution of 1901 (now Local Amendments, Macon County § 1 (Off.Recomp.)). Amendment No. 744, Ala. Const.1901, provides:

"The operation of bingo games for prizes or money by nonprofit organizations for charitable, educational, or other lawful purposes shall be legal in Macon County. The sheriff shall promulgate rules and regulations for the licensing and operation of bingo games within the county. The sheriff shall insure compliance pursuant to any rule or regulation and the following requirements:

"(1) No person under the age of 19 years shall be permitted to play any game or games of bingo, nor shall any person under the age of 19 years be permitted to conduct or assist in the operation of any game of bingo.

"(2) No bingo license shall be issued to any nonprofit organization, unless the organization shall have been in existence for at least three years in the county immediately prior to the issuance of the permit or license.

"(3) Bingo games may be operated on the premises owned or leased by the nonprofit organization operating the bingo game.

"(4) A nonprofit organization may enter into a contract with any individual, firm, association, or corporation to have the individual or entity operate bingo games or concessions on behalf of the nonprofit organization. A nonprofit organization may pay consulting fees to any individual or entity for any services performed in relation to the operation or conduct of a bingo game.

"(5) A nonprofit organization may lend its name or allow its identity to be used by another person or entity in the operating or advertising of a bingo game in which the nonprofit organization is not directly and solely operating the bingo game.

"(6) Prizes given by any nonprofit organization for the playing of bingo games shall not exceed the cash amount or gifts of equivalent value set by rule or regulation during any bingo session during any calendar week."

On March 26, 2004, Muhammad and Frazier initiated this declaratory-judgment action in the Macon Circuit Court pursuant to § 6-6-220 et seq., Ala.Code 1975, seeking to have Act No. 2003-124 declared unconstitutional as violative of the separation-of-powers provision contained in § 43, Ala. Const.1901.² On April 29, 2004, Ford and Warren filed a motion to dismiss the action.³ Their motion was premised on the arguments that the trial court lacked jurisdiction, that Muhammad and Frazier lacked standing, and that Muhammad and Frazier failed to state a claim upon which relief could be granted. Muhammad and Frazier amended their complaint on May 24, 2004, to name Alabama Attorney General Troy King as a defendant. Attorney General King filed an acceptance and waiver of further service with the trial court on July 2, 2004.

Muhammad and Frazier again amended their complaint on November 21, 2005. In the second amended complaint, they alleged "that House Bill 660, ratified as Amendment 744 to the Alabama Constitution, violates the separation of powers doctrine under the Alabama Constitution, the due process of the laws under both the United States and Alabama Constitutions, and the equal protection clause under both the United States and Alabama Constitutions." On the same day Muhammad and Frazier filed a written response to Ford and Warren's motion to dismiss.

On November 22, 2005, the trial held a hearing on the motion to dismiss, and by order of December 13, 2005, the trial court dismissed Muhammad and Frazier's complaint without stating any reason for its decision. Muhammad and Frazier appeal.

II. Standard of Review

"A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). We must also view the allegations of the complaint most strongly in the pleader's favor to determine whether it appears the pleader could prove any set of circumstances that would entitle the pleader relief. Nance, 622 So.2d at 299. Furthermore, we will not consider whether the pleader will ultimately prevail on the complaint but whether the pleader may possibly prevail. Id.

"For a declaratory-judgment action to withstand a motion to dismiss there must be a bona fide justiciable controversy that should be settled. Anonymous v. Anonymous, 472 So.2d 640, 641 (Ala.Civ.App.1984); Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 309 So.2d 424, 427 (1975). The test for the sufficiency of a complaint seeking a declaratory judgment is whether the pleader is entitled to a declaration of rights at all, not whether the pleader will prevail in the declaratory-judgment action. Anonymous, 472 So.2d at 641.

"The lack of a justiciable controversy may be raised by either a motion to dismiss or a motion for a summary judgment. Smith, 309 So.2d at 427. See also Rule 12, Ala. R. Civ. P.; Rule 56, Ala. R. Civ. P. However, a motion to dismiss is rarely appropriate in a declaratory-judgment action. Wallace v. Burleson, 361 So.2d 554, 555 (Ala.1978). If there is a justiciable controversy at the commencement of the declaratory-judgment action, the motion to dismiss should be overruled and a declaration of rights made only after an answer has been submitted and evidence has been presented. Anonymous, 472 So.2d at 641. However, if there is not a justiciable controversy, a motion to dismiss for failure to state a claim should be granted. Curjel v. Ash, 263 Ala. 585, 83 So.2d 293, 296 (1955)."

Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220, 223 (Ala.2003).

III. Analysis

Before considering the merits of this appeal, this Court must first consider whether Muhammad and Frazier have standing to challenge the constitutionality of Amendment No. 744. Muhammad and Frazier contend that "they do have standing to bring this cause forward because a justiciable controversy exists." (Muhammad and Frazier's brief, p. 14.) However, our analysis is not as simple as whether a justiciable controversy exists. As this Court has previously observed:

"`To say that a person has standing is to say that that person is the proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.' Doremus v. Business Council of Alabama Workers' Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996). `Standing ... turns on "whether the party has been injured in fact and whether the injury is to a legally protected right."' [State v. Property at] 2018 Rainbow Drive, 740 So.2d [1025,] 1027 [(Ala.1999)] (quoting Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)) (emphasis omitted). In the absence of such an injury, there is no case or controversy for a court to consider. Therefore, were a court to make a binding judgment on an underlying issue in spite of absence of injury, it would be exceeding the scope of its authority and intruding into the province of the Legislature. See City of Daphne v. City of Spanish Fort, 853 So.2d 933, 942 (Ala.2003) (`The power of the judiciary ... is "the power to declare finally the rights of the parties, in a particular case or controversy ...."' (quoting Ex parte Jenkins, 723 So.2d 649, 656 (Ala.1998))); Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ('[T]he law of Art. III standing is built on a single basic idea—the idea of separation of powers.')."

Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256 (Ala.2004). In Alabama Alcoholic Beverage Control Board v. Henri-Duval Winery, L.L.C., 890 So.2d 70 (Ala.2003), this Court adopted a more precise rule regarding standing articulated by the United States Supreme Court:

"A party establishes standing to bring a [constitutional] challenge ... when it demonstrates the existence of (1) an actual, concrete and particularized `injury in fact'—`an invasion of a legally protected interest'; (2) a `causal connection between the injury and the conduct complained of`; and (3) a likelihood that the injury will be `redressed by a favorable decision.' Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party must also demonstrate that `he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.' Warth [v. Seldin], 422 U.S. [490,] 518, 95 S.Ct. 2197 [(1975)]."

890 So.2d at 74.

Muhammad and Frazier argue that the...