State v. City of Birmingham, 112719 ALSC, 1180342

Docket Nº:1180342
Opinion Judge:BRYAN, JUSTICE
Party Name:State of Alabama v. City of Birmingham and Randall L. Woodfin, in his official capacity as Mayor of the City of Birmingham
Judge Panel:Parker, C.J., and Shaw, Wise, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur. Bolin, J., concurs specially. BOLIN, Justice (concurring specially.)
Case Date:November 27, 2019
Court:Supreme Court of Alabama
 
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State of Alabama

v.

City of Birmingham and Randall L. Woodfin, in his official capacity as Mayor of the City of Birmingham

No. 1180342

Supreme Court of Alabama

November 27, 2019

Appeal from Jefferson Circuit Court (CV-17-903426)

BRYAN, JUSTICE

The State of Alabama appeals from a judgment entered by the Jefferson Circuit Court ("the circuit court") in favor of the City of Birmingham ("the City") and its mayor, Randall L. Woodfin ("the mayor"), 1 in the State's action seeking a judgment declaring that the City and the mayor violated the Alabama Memorial Preservation Act, § 41-9-231 et seq., Ala. Code 1975 ("the Act").

I. Background Facts and Procedural History

The parties stipulated to the following facts: "1. In 1905, the Pelham Chapter of the United Daughters of the Confederacy dedicated the Confederate Soldiers and Sailors Monument ('monument') to Confederate soldiers who fought in the Civil War in Capitol Park, which has since been renamed to Charles Linn Park ('Linn Park').

"2. The City ... is a Class 1 municipal corporation located in Jefferson County, Alabama.

"3. Linn Park is owned and operated by the City ....

"4. The monument consists of a stone base measuring 15' x 15' with a marble shaft on top that extends 42 feet into the air.

"5. The stone base was laid on April 26, 1894, during the 4th Annual Convention of the Confederate Veterans, and the marble shaft was placed on the base in 1905.

"6. On the east corner of the stone base are the words: 'In Honor of the Confederate Soldiers and Sailors.' On the north side of the stone base are the words: 'Corner Stone Laid April 26, A.D. 1894.'

"7. The marble shaft monument contains inscriptions of crossed sabers, muskets, and an anchor. Four stone artillery balls lie at the base of the monument.

"8. On one side of the marble shaft monument is an inscription that reads: 'The manner of their death was the crowning glory of their lives.' On another side there is an inscription that reads: 'To the memory of the Confederate soldiers and sailors. Erected by the Pelham Chapter, United Daughters of the Confederacy. Birmingham, Ala. April 26, 1905.'

"9. The Pelham Chapter of the United Daughters of the Confederacy dedicated the monument jointly to the State of Alabama and the City of Birmingham. Lieutenant Governor R.M. Cunningham received the monument on behalf of the State. Mayor W.M. Drennan received the monument on behalf of the City.

"10. The monument is more than 40 years old, has remained in Linn Park until the present and is owned and maintained by the City ... with no funds being provided from the State of Alabama for maintenance and upkeep.

"11. On August 15, 2017, then-Mayor William Bell ordered City employees to erect a freestanding plywood screen in the area near and around the base of the monument, which is not permanently affixed to park property and does not touch or connect to the monument. The plywood screen measures 16' x 16'9" at the base and is 12' high.

"12. The plywood screen obscures the base of the monument and the bottom of the marble shaft from view, but does not touch or connect to the monument.

"....

"15. The plywood screen currently remains around the monument without touching or connecting to the monument and the monument remains in the same location as it has since 1905."

On August 16, 2017, the State filed a declaratory-judgment action against the City and the mayor, in his official capacity (the City and the mayor are hereinafter referred to collectively as "the City defendants"). The State sought a judgment declaring that the placement of the plywood screen around the monument violated § 41-9-232(a), Ala. Code 1975, a part of the Act, that provides: "No ... monument which is located on public property and has been so situated for 40 or more years may be relocated, removed, altered, renamed, or otherwise disturbed." (Emphasis added.) Section 41-9-235(a), Ala. Code 1975, allows, among other things, entities exercising control of public property to petition the Committee on Alabama Monument Protection ("the committee"), which was created by the Act, see § 41-9-234, Ala. Code 1975, for a waiver from certain provisions of the Act. However, nothing in § 41-9-235(a) or any other part of the Act allows an entity such as the City to petition for a waiver from § 41-9-232(a), which specifically concerns monuments that have been "so situated" on public property for 40 or more years, such as the monument in this case. Thus, because the monument in this case could not, under any circumstances, be "relocated, removed, altered, renamed, or otherwise disturbed," the State also asked the circuit court to impose upon the City defendants, pursuant to § 41-9-235(a)(2)d., Ala. Code 1975, a fine of $25, 000 for each day the memorial remains "altered" or "otherwise disturbed" pursuant to the terms of the Act.

Ultimately, both the State and the City defendants moved for a summary judgment based on the stipulated facts. The State argued that the only disputed legal question in count one of its complaint was whether the City defendants' placement of the plywood screen around the base of the monument "altered" or "otherwise disturbed" the monument. As to the second count of its complaint, the State argued that the penalty provision of the Act, § 41-9-235(a)(2)d., is ambiguous but that the clear intent of the legislature was to allow a $25, 000-per-day penalty to be assessed against entities that violated § 41-9-232(a). The City defendants opposed that motion and filed their own motion for a summary judgment, arguing that the plain language of both § 41-9-232(a) and § 41-9-235(a)(2)d. support a conclusion that the City defendants did not violate the Act by placing the plywood screen around the monument and that, even if a violation occurred, there is no enforceable penalty authorized by the Act under the particular circumstances of this case. Additionally, the City defendants asserted that the Act violated the City's right to "government speech" which, they said, is protected by the First Amendment to the United States Constitution and Article 1, § 4, Ala. Const. 1901.

After both sides filed additional briefing, the circuit court conducted a hearing on the parties' pending summary-judgment motions. At the circuit court's request, the parties filed post-hearing briefs to address certain constitutional questions raised during the hearing, including whether the City possessed a right to free speech under the First Amendment to the United States Constitution and the Alabama Constitution and whether the City possessed a right to due process under the Fourteenth Amendment to the United States Constitution. The Southern Poverty Law Center sought leave from the circuit court to file a brief in support of the City defendants as amicus curiae; no party opposed that request, and the circuit court granted the motion.

The circuit court entered an order on January 14, 2019, denying the State's summary-judgment motion and granting the City defendants' motion. The circuit court concluded that the Act impermissibly denied the City "its right to government speech" by "forcing the City to speak" a message it did not wish to convey in violation of its right to free speech. The circuit court also concluded that the Act violated the City's Fourteenth Amendment due-process rights because the Act, specifically § 41-9-235(a), failed to provide a procedure by which the City could petition the committee for a waiver that would allow it to relocate, remove, alter, rename, or otherwise disturb the monument. The circuit court concluded that § 41-9-235(a) "deprive[d] the City of its constitutionally protected speech, as well as ... its constitutional right to due process." The circuit court held that § 41-9-235(a) was unconstitutional, that it could not be severed from the Act, and that, therefore, the entirety of the Act is void.

The State moved for a stay of the circuit court's judgment pending appeal, but there is no indication that the circuit court ruled on the State's request. The State timely appealed and applied to this Court for a stay of the final judgment during the pendency of its appeal. On February 15, 2019, this Court granted the State's motion to stay and further ordered that "the accrual of any penalties under the ... Act ... is hereby stayed."

II. Standard of Review

"An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala. 2004). In addition, '[t]his court reviews de novo a trial court's interpretation of a statute, because only a question of law is presented.' Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala. 2003). Where...

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