White v. John

• Decision Date: 26 September 2014
• Docket Number: 1111554.
• Citation: 164 So.3d 1106
• Court: Alabama Supreme Court
• Parties: Thomas L. WHITE, Jr., as Comptroller of the State of Alabama v. Karen JOHN et al.

164 So.3d 1106

Thomas L. WHITE, Jr., as Comptroller of the State of Alabama

v.Karen JOHN et al.

1111554.

Supreme Court of Alabama.

Sept. 26, 2014.

Albert L. Jordan, Matthew D. Friday, and Susan E. McPherson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Algert S. Agricola, Jr., of Ryals, Plummer, Donaldson, Agricola & Smith, P.C., Montgomery, for appellant.

James H. Anderson and William F. Patty of Jackson, Anderson & Patty, P.C., Montgomery; J. Cecil Gardner of The Gardner Firm, P.C., Mobile; Walter S. Turner, Montgomery; and Theron Stokes, Alabama Education Association, Montgomery, for appellees Alabama Education Association and Karen John.

Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery, for appellees Alabama State Employees Association and Randy Hebson.

Opinion

MURDOCK, Justice.

The State Comptroller, Thomas L. White, Jr. (“the comptroller”), appeals from a preliminary injunction entered by the Montgomery Circuit Court in response to an action for declaratory and injunctive relief brought by Karen John, the Alabama Education Association (“the AEA”), Randy Hebson, and the Alabama State Employees Association (“the ASEA”). We reverse and remand.¹

I. Statement of Facts

This is the third time a case involving the question of deductions by the comptroller from a State employee's salary for payment of contributions and dues has come before this Court recently.² The first case, Davis v. Alabama Education Ass'n, 92 So.3d 737 (Ala.2012), concerned the comptroller's implementation on or about June 28, 2010, of a new policy stopping certain deductions from the paychecks of State employees. Specifically, the comptroller interpreted then existing § 17–17–5, Ala.Code 1975,³ as preventing him from executing salary deductions and remitting the deducted funds as contributions to the political-action committees of organizations—including the political-action committees of the AEA and the ASEA. By the same token, based on his determination that some portion of the deductions designated for remittance to the AEA was being transferred by the AEA to its political-action committee, the comptroller ceased execution of all salary deductions designated for remittance to the AEA. The comptroller also understood the then existing statute therefore to prevent him from making payroll deductions for the purpose of, in turn, making remittances to the AEA itself. As then codified, § 17–17–5 provided in part that “[n]o person in the employment of the State of Alabama ... shall use any state ... funds, property, or time, for any political activities.” The comptroller also based his position on § 36–12–61, Ala.Code 1975, which provides:

“It shall be unlawful for any officer or employee of the State of Alabama to use or to permit to be used any state-owned property of any character or description, including stationery, stamps, office equipment, office supplies, automobiles or any other property used by him, in his custody or under his control for the promotion or advancement of the interest of any candidate for the nomination or election to any public office of the State of Alabama.”

The AEA, the ASEA, and their political-action committees filed a declaratory-judgment action challenging the comptroller's change in policy and sought a preliminary injunction to force the comptroller to continue executing salary deductions as he had previously. The Montgomery Circuit Court granted the requested preliminary injunction; the State finance director and the comptroller appealed the circuit court's order to this Court. That appeal was the subject of Davis.

Subsequently, in a special session, the legislature enacted, and the governor signed into law on December 20, 2010, Act No. 2010–761, Ala. Acts 2010 (“the Act”). The Act amended § 17–17–5, Ala.Code 1975, to state explicitly as follows:

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

“(b)(1) No person in the employment of the State of Alabama ... 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.

“....

“(2) 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....”

The Act became effective on March 20, 2011.

Before the Act became effective, the AEA and six of its members filed an action in federal court on February 25, 2011, against various State officials challenging the constitutionality of the Act under the First and Fourteenth Amendments to the United States Constitution. See Alabama Educ. Ass'n v. State Superintendent of Educ., 665 F.3d 1234 (11th Cir.2011). This lawsuit and matters pertaining to it were described in this Court's opinion in Davis, 92 So.3d at 743–45 :

“On March 8, 2011, the finance director and the comptroller notified this Court that on February 25, 2011, the plaintiffs had filed in the United States District Court for the Northern District of Alabama an action against the governor, the finance director, the comptroller, and other defendants (‘the federal-court defendants') challenging the constitutionality of the Act under the First and Fourteenth Amendments to the United States Constitution. Specifically, the complaint alleged that the Act's ban on salary deductions in support of political activities is ‘overbroad’ and vague, that enforcement of the Act would result in ‘viewpoint’ discrimination, and that the Act violates the Equal Protection Clause of the Fourteenth Amendment. Subsequent filings in this Court by the finance director and the comptroller notified this Court that the federal district court on March 18, 2011, entered a preliminary injunction against the federal-court defendants that ‘enjoined and restrained [them] from implementing or enforcing [the Act].’ The federal district court's injunctive order further stated that ‘[a]ll defendants named above must honor employee requests for payroll deductions to the Alabama Education Association (“AEA”), and must remit the deducted amounts (including amounts representing contributions to “A–VOTE” [Alabama Voice of Teachers for Education, a political-action committee affiliated with the AEA] ) to AEA.’ The federal-court defendants filed a notice of appeal of the preliminary injunction, as well as a motion to stay the injunction, to the United States Court of Appeals for the Eleventh Circuit.

“On April 5, 2011, the Eleventh Circuit Court of Appeals entered an order denying the motion to stay the federal district court's preliminary injunction insofar as it prohibited the implementation of the Act. The Eleventh Circuit granted a stay, however, of the portion of the preliminary injunction that required the federal-court defendants to honor employee requests for salary deductions designated for the AEA that represented contributions to A–VOTE. The Eleventh Circuit noted that, before the enactment of the Act, the comptroller, based on preexisting Alabama law, already had ceased executing salary deductions from applicable State employees' paychecks that represented contributions to political-action committees. In particular, the Eleventh Circuit noted:

“ ‘If, as the district court has preliminarily concluded, the new Act is unconstitutional and its provisions are nonseverable, the provisions of the Alabama Code on which the Comptroller's June 28, 2010 policy was based are unaffected by the new Act. There is nothing in the district court's memorandum opinion, or in the law of which we are aware, to justify a federal court injunction preventing the [federal-court] defendants from refusing to deduct for, or remit to, any organization amounts representing contributions to A–VOTE or any other [political-action committee], based on their interpretation of pre-Act 2010–761 state law. To the contrary, Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 129 S.Ct. 1093 (2009), clearly permits the defendants to refuse to collect and remit PAC contributions.’ ⁶

“Thus, the Eleventh Circuit upheld the federal district court's preliminary injunction of the implementation of the Act, except that it stayed the injunction

“ ‘insofar as the preliminary injunction: 1) requires any defendant to honor employee requests for payroll deductions for contributions to A–VOTE or to any other [political-action committee]; 2) requires any defendant to remit or pay over any PAC payroll deductions to any entity or person other than the employees from whose pay they were deducted; and 3) prevents any defendant from remitting or refunding any PAC payroll deduction to the employee from whose pay it has been deducted.’

“On December 27, 2011, the Eleventh Circuit Court of Appeals filed with this Court certified questions pertaining to the Act in relation to the constitutional challenge filed by the AEA and A–VOTE, which query has been docketed as case no. 1110413. Those

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