Thompson v. State, CASE NO. 2:16–CV–783–WKW

• Citation: 293 F.Supp.3d 1313
• Decision Date: 26 December 2017
• Docket Number: CASE NO. 2:16–CV–783–WKW
• Parties: Treva THOMPSON, et al., Plaintiffs, v. State of ALABAMA, et al., Defendants.
• Court: United States District Courts. 11th Circuit. Middle District of Alabama

293 F.Supp.3d 1313

Treva THOMPSON, et al., Plaintiffs,

v.State of ALABAMA, et al., Defendants.

CASE NO. 2:16–CV–783–WKW

United States District Court, M.D. Alabama, Northern Division.

Signed December 26, 2017

Aderson B. Francois, Pro Hac Vice, Institute for Public Representation, Georgetown University Law Center, Danielle Lang, Joseph Gerald Hebert, Campaign Legal Center, Jessica Ring Amunson, Pro Hac Vice, Jenner & Block LLP, Patrick D. Llewellyn, Public Citizen Litigation Group, Washington, DC, Armand Derfner, Derfner & Altman LLC, Charleston, SC, James Uriah Blacksher, Attorney at Law, Birmingham, AL, Joseph Mitchell McGuire, McGuire & Associates LLC, Montgomery, AL, Pamela Karlan, Pro Hac Vice, Stanford Law School, Stanford, CA, for Plaintiffs.

Andrew L. Brasher, James William Davis, Misty Shawn Fairbanks Messick, Brad A. Chynoweth, Laura Elizabeth Howell, Mary Mangan, Winfield James Sinclair, Office of the Attorney General, Montgomery, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Under Alabama law, an individual of voting age who commits a "felony involving moral turpitude" forfeits his or her right to vote. Ala. Const. art. VIII, § 177 (b). Restoration of the right to vote is available only after the felon has completed all the terms of his or her sentence, which includes full payment of all fines, court costs, fees, and restitution. Ala. Code § 15–22–36.1 (2016). In this putative class action against the State of Alabama and its officials, Plaintiffs contend that these laws—section 177(b) of Article VIII of the Alabama Constitution of 1901, and section 15 – 22 – 36.1 of the Alabama Code—violate the federal constitution and section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Plaintiffs allege that, due to their felony convictions or their financial inability to satisfy the monetary obligations associated with their convictions, they cannot vote in the State of Alabama.

In a prior Order, the court granted in part and denied in part Defendants' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure and noted that a memorandum opinion would follow. (Doc. # 75.) This is that opinion. For the reasons to follow, Counts 3, 4, 5, 6, 7, 8, 9, 10, 14, and 15 are due to be dismissed either for failure to state a claim upon which relief can be granted or sua sponte for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(6), (h)(3). But this action will proceed as to Counts 1, 2, 11, 12, and 13.

II. JURISDICTION AND VENUE

Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331, with the exception of the counts over which this court lacks subject-matter jurisdiction for the reasons discussed below. The parties do not contest personal jurisdiction or venue.

III. STANDARDS OF REVIEW

A. Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint against the legal standard articulated by Rule 8 of the Federal Rules of Civil Procedure. Rule 8 provides that the complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc. , 693 F.3d 1317, 1321–22 (11th Cir. 2012). However, the court need not accept mere legal conclusions as true. Id. at 1325.

To survive a 12(b)(6) motion, the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Additionally, notwithstanding the alleged facts, Rule 12(b)(6)"[d]ismissal is ... permitted ‘when on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.’ " Glover v. Liggett Grp., Inc. , 459 F.3d 1304, 1308 (11th Cir. 2006) (quoting Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist. , 992 F.2d 1171, 1174 (11th Cir. 1993) ); see also Neitzke v. Williams , 490 U.S. 319, 326–27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (explaining that Rule 12(b)(6) allows a court "to dismiss a claim on the basis of a dispositive issue of law").

B. Rule 12(h)(3)

"If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). " Rule 12(h)(3) motions are subject to the same standard as motions brought pursuant to Rule 12(b)(1)" of the Federal Rules of Civil Procedure. Peterson v. Cont'l Airlines, Inc. , 970 F.Supp. 246, 248–49 (S.D.N.Y. 1997). In this case, the mootness inquiry is resolved on the complaint and the undisputed post-suit enactment of HB 282, as discussed in Part V.E., and, thus, presents a factual challenge. See Williamson v. Tucker , 645 F.2d 404, 413–14 (5th Cir. 1981)¹ (explaining that a factual Rule 12(b)(1) motion can be resolved as a matter of law when it implicates facts outside the pleading that are not contested).

IV. BACKGROUND

A. History of the Alabama Constitution's Disenfranchisement of Individuals Convicted of "Moral Turpitude" Crimes

In the beginning, section 182 of the Alabama Constitution of 1901 denied the right to vote to individuals convicted of "any ... crime involving moral turpitude," be it a misdemeanor or a felony. Ala. Const. art. VII, § 182 (repealed 1996). Eighty-four years after the adoption of section 182, on a challenge to its application to misdemeanors, the U.S. Supreme Court in Hunter v. Underwood , 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985), held that section 182's "original enactment was motivated by a desire to discriminate against blacks on account of race," the impact of which had continued up to that point. Id. at 233, 105 S.Ct. 1916. Thus, the Court struck down section 182's disenfranchisement provision as applied to misdemeanor offenses on grounds that it violated the Fourteenth Amendment's Equal Protection Clause. The Court expressly declined to decide whether section 182"would be valid if enacted today without any impermissible motivation." Id.

A decade after the Court's decision in Hunter , the Alabama Legislature replaced section 182. In 1996, the Alabama Legislature unanimously passed Amendment 579, and the state's voters ratified the amendment thereafter. Amendment 579—hereinafter referred to and cited as section 177 (b)² —provides that "[n]o person convicted of a felony involving moral turpitude ... shall be qualified to vote until restoration of civil and political rights." Ala. Const. art. VIII, § 177(b). Section 177 (b) thus restricted disenfranchisement to individuals convicted of felonies involving moral turpitude and effectively re-enfranchised individuals convicted of misdemeanors involving moral turpitude.

Section 177 (b), the same as its predecessor, did not define "moral turpitude." The Alabama Constitution of 1901—and, until earlier this year, the Alabama Code—contained no definition of the phrase. As a result, the state's county boards of registrars had the unenviable task of sorting through "Alabama case law or, in absence of a court precedent, opinions of the Alabama Attorney General to determine whether" a given crime was a crime of moral turpitude. Hunter , 471 U.S. at 226, 105 S.Ct. 1916 ; Pippin v. State , 197 Ala. 613, 616, 73 So. 340 (1916) (explaining, not too helpfully, that "moral turpitude" "impl[ies] something immoral in itself, regardless ... whether it is punishable by law"). The Alabama Attorney General and the Alabama Administrative Office of Courts attempted to define the phrase in 2005, 2007, and 2008. (See Compl. ¶¶ 24–30, 32–35); see generally Chapman v. Gooden , 974 So.2d 972, 976 (Ala. 2007) (recounting the Alabama Attorney General's 2005 opinion listing crimes that the Alabama courts have determined are crimes involving moral turpitude under § 177 (b) ). But, as alleged in the Complaint, this administrative guidance "is non-exhaustive, non-authoritative, vague, and internally inconsistent." (Compl. ¶ 23.)

B. The Felony Voter Disqualification Act ("HB 282")

The phrase "moral turpitude" evaded an authoritative definition until after the filing of this lawsuit. In its 2017 regular session, the Alabama Legislature defined the phrase "moral turpitude" for the first time when it unanimously passed the Felony Voter Disqualification Act, House Bill 282 ("HB 282"). Governor Kay Ivey signed HB 282 into law on May 25, 2017, and HB 282 went into effect on August 1, 2017.

HB 282, which now is codified at section 17–3–30.1 of the Alabama Code, enumerates a list of more than forty Alabama felonies that "involv[e] ‘moral turpitude’ " within the meaning of section 177 (b). Only the Alabama felony convictions listed prohibit an individual from voting in Alabama. HB 282 sets out its purposes, which are:

a. To give full effect to Article VIII of the Constitution of Alabama of 1901, now appearing as Section 177 of Article VIII of the Official Recompilation of the Constitution of Alabama of 1901, as amended.b. To ensure that no one is wrongly excluded from the electoral franchise.

c. To provide a comprehensive list of acts that constitute moral turpitude for the limited purpose of disqualifying a person from exercising his or her right to vote.

Ala. Code § 17–3–30.1(b)(2) (2017).

C. Section 15–22–36.1 of the Alabama Code

Section 177 (b) provides an exception to voter disqualification where the individual convicted of a felony involving moral turpitude has had his or her "civil and...